Amendments Nos. 1 and 8 are related and may be discussed together.
Local Government (Planning and Development) Bill, 1983: Committee and Final Stages.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 4, subsection (4), line 6, after "office" to add "and Articles 6 and 10 of the Schedule to the said Act shall continue to have effect."
The whole thrust of the Bill rests on these two amendments particularly in connection with the termination of the board. Had we been given an assurance by the Minister as regards the retention of the board it would have eliminated the necessity for these two amendments. However, this was not forthcoming. The present board should be retained until each member has served his term of office. The Bill provides that the board will comprise five members and one chairman. If the Minister had waited he could have appointed people to the board when the present members' terms of office were up. For example, the term of office of one member who was appointed in a temporary capacity will expire in December this year. That will reduce the number of members from seven to six. In June 1984 three other members' terms of office would be over and that would leave the number at four. At that time the Minister would have been able to add one other person to the board. The other members' terms of office will expire in September and December 1985.
Our main opposition to the Bill relates to the termination of the existing board. I am sure there will be substantial claims made as a result of the board being terminated and it is quite possible that the members will succeed in getting compensation.
On this fine day it is my intention to go through the amendments as quickly as possible so that we can go into summer recess.
I thank the Senator for that.
I will not delay the House by pursuing this further. It is on this section that the whole thrust of our opposition to the Bill hinges.
I understand the sentiment behind what Senator O'Toole is saying and what Fianna Fáil said in the Dáil in relation to this section but we are not engaged in a witch-hunt. Fianna Fáil should not feel that this is a precedent which will be applied to any other State body or board. My reason for saying that is that it has been alleged that this is a vindictive measure. It is not. It is an attempt to restructure, re-organise and, to use Deputy Molloy's phrase, depoliticise in the public perception the adjudication of individual planning applications. To that extent, the Minister and the Government feel that it is an integral part of the process that the membership of the board be re-constituted. It is essential that we start with a clean slate. If we were to adopt Senator O'Toole's suggestion and wait for the termination of the existing appointments it would be 1987 before we could re-constitute a board with six members, a number which Mr. Justice Pringle, the first chairperson of the board, recommended on a radio programme two weeks ago. I understand Senator O'Toole's sentiment but I again stress that this is not a witch-hunt. Reluctantly, I am not in a position to accept the amendment.
Amendment put and declared lost.
Section 2 agreed to.
Sections 3 and 4 agreed to.
SECTION 5.
I move amendment No. 2:
In page 5, subsection (2), to delete paragraph (d), lines 8 and 9, and substitute the following:—
"(d) the Chairman of the Association of Municipal Authorities of Ireland,".
We on this side of the House feel that the chairman of the municipal authorities, who has been elected by the people, would be a more suitable person to serve on the board. There is so much criticism at present of An Taisce that they are not a suitable body to be included now in the Bill. The amendment asks that their name be deleted in favour of the chairman of the Municipal Authorities of Ireland. An Taisce have created controversy not only in this House but outside it and are not suitable for representation on the board.
The only brief intervention which I intend to make this morning is on this one matter. The references to An Taisce in the discussion of this Bill, both in this and in the other House, are somewhat unfortunate. They have arisen in an atmosphere in which the whole approach to debate on physical planning has set up a series of unfortunate tensions. For example, people claimed to represent real needs in relation to housing and suggested that the environmentalists are representing a contrary argument. They go further, indeed, and suggest that environmentalists are people who do not take real need into consideration and so on. That is an unfortunate and very unnecessary tension. I am a member of a local authority from which great criticism has come of An Taisce and I would like to place on the record of the House that I am one of those who appreciate the efforts of An Taisce, in County Galway, Galway city and nationally. The unemotive way that this amendment has been put forward by Senator O'Toole stands in contrast to those who have criticised not only the organisation but the individuals in it.
It is the criticism of the individuals within An Taisce, particularly in Galway, which has been unfortunate, because many are dedicated people who, in their own time and of their own resources, have performed tasks for which many of us and generations to come will be grateful. I shall give one example. On the occasion when we prepared the city development plan of Galway city and on the occasion when we amended it, a most valuable contribution on houses to be preserved and included in this schedule of the plan has been contained in the submission from An Taisce. For that reason, this criticism which has come forward against that body is to be regretted. I feel it necessary to place on record not only my defence of the organisation but my appreciation of the contribution which they have made, which is immense not only on a county basis but nationally. Also, they were representing a new kind of thinking in an atmosphere where it did not exist before. I would only hope that in future when county development and other plans — which after all are the basic framework within which precise decisions on individual applications are made — are being made or reviewed, the plans will be constructed in such a flexible way that this unnecessary tension between environmental and basic needs in relation to housing and practical and well-planned industry need not arise. A better atmosphere will then prevail. I am against the amendment in so far as it tends to exclude An Taisce from the process of recommendation, which would appear to be the logical extension in legislation of criticisms which have been made against that body which has made a valuable contribution which will be appreciated by future generations.
I am amazed at the omission of the name of the chairman of the Municipal Authorities of Ireland from this board although the chairman of the General Council of County Councils has been included. There would be no argument from this side of the House on any of these appointments if the Minister brought in the list — and I am quite sure that the Minister present knows exactly who will be on this new board. They will be people whose political affiliations are not known. They are obviously so clean and correct that they would not even go into a polling booth to vote. The accusations against the outgoing board have done tremendous harm and it will take a long time to correct that harm done by the present Government and the present Minister. I am quite sure that this was the idea of the Minister of State and not the Minister for the Environment. I sincerely hope that the chairman of the Municipal Authorities of Ireland will be a member of this board, because his omission is an absolute disgrace.
I would join with Senator Higgins in my opposition to this amendment. As I said on Second Stage, it is regrettable that there has been consistent attack on An Taisce during the debate on this Bill in the Oireachtas. Why that should have occurred is not clear. That organisation have done extraordinarily valuable work over the years in bringing home to us the value of our physical heritage on the one hand and, on the other, in seeking to ensure that we plan our environment better in the future than we have in the past. As a society we are not very good on planning and preserving, or creating suitable environments for ourselves. However, we are improving and part of the reason for that is because there is an organisation like An Taisce, which comprises volunteers interested in the environment, egging us on. It is absolutely appropriate that this organisation, which is prescribed under the 1964 Act and which, therefore, has statutory recognition of sorts, should have a member on this committee referred to in section 5. We have a long way yet to go in terms of planning, in creating an environment which matches our human needs, as opposed to cost-effective needs or whatever.
An Taisce have a role to play and we must recognise it. It is also appropriate that the Minister and the Government are giving recognition to the consumers, so to speak, on this selection committee. There has been a good deal of talk over the years about the need to involve consumers in all kinds of things, including membership of State bodies of one sort or another. In so far as we have a recognisable body of consumers in relation to physical planning, An Taisce are probably the predominant one. It is absolutely appropriate that they should be represented on this committee of selection which, in terms of total composition, seems to me to be admirably fair, open and democratic as opposed to what one could argue about the previous system.
It is appropriate that members of local authorities should be represented on this committee of selection. The Minister accepted an amendment to this effect already. He has put the chairman of the General Council of County Councils on this committee. This is the senior body amongst the local authority representative bodies. In that sense, the Minister has accepted the case made by the Opposition Party. He has gone as far as it was appropriate for him to go. Local authority members are now represented and that is appropriate. It is noticeable that, when it came to suggesting the appointment of a member of the municipal authorities, the body they tried to have excluded was An Taisce. The real reason is not their desire—and I say this with great respect—to have a representative of the municipal bodies on this committee. Their primary target was to get rid of An Taisce. That is regrettable. I say that with great respect to all concerned.
Senator O'Toole and Senator Honan have made a very good case for the substitution of the chairman of the Association of Municipal Authorities for An Taisce. There is no doubt that the association are very representative, and that the chairman would be a very suitable person to be on the board. I support this amendment on the basis that the person proposed is a very suitable person, but not on the basis that a representative of An Taisce would be a unsuitable person.
An Taisce have done a very good job for many years and are still doing so. Some of the criticism that An Taisce were against progress and against development is unfair. Their objective is conservation, preservation and the protection of the landscape. In putting forward that point of view it appears from time to time that they are arguing against certain developments because they believe that by allowing these developments to go ahead, the preservation of certain important buildings, or streets, or landscapes will be seriously affected. They are arguing the case for conservation and asking local authorities and the public generally to weigh up the advantage of progress and development against the disadvantage of destroying something of importance.
Their point of view is very valid and should be taken into consideration, whatever the ultimate decision might be in any case. They have been criticised in the past, but all of us have been criticised. Local authorities have been criticised. Members of the Oireachtas have been criticised. If they were not criticised, it would show that they were dead, or that they were not playing any active part, or putting forward a point of view with sufficient emphasis.
I support the amendment proposed by Senator O'Toole on the basis that the person he suggests is an eminently suitable person, but certainly not on the basis that An Taisce are in any way unsuitable to be represented on this board. They have done a very useful job. If they were not there, I wonder who would have done the kind of job they have done in regard to conservation and preservation over many years past.
Senator O'Mahony has dealt with some of the points I wanted to raise. On Second Stage I welcomed the fact that the chairman of the General Council of County Councils is on the committee. They are a statutory body representing each county council. I would be the first to defend local statutory bodies to which people are elected. This is an area in which there could be duplication. Members of municipal authorities are generally members of county councils. There would be a double representation if we included the municipal authorities and the county councils. The reverse would not be the case, because members of county councils are not automatically members of municipal authorities. By including the General Council of County Councils the Minister has achieved the broadest possible representation. There is no need for duplication.
I share Senator Ryan's sentiments that this should not be done at the expense of a body like An Taisce. I have made my views known about An Taisce. They have a useful and prescribed role under the Planning Acts. I had reservations when they condemned local politicians and their statutory role. That is not the role of An Taisce. I am a member of An Taisce and they have a very useful role as a prescribed body. I agree that they should have an input into the short list of people suitable for the chairmanship of this very important planning board.
I have no objection to the chairman of the municipal authorities of Ireland being included in the list but, if we include the chairman of this association, where does the Minister stop? Some people say the Minister's committee is too big. I would not like to see the chairman of the municipal authorities included at the expense of An Taisce. An Taisce are a controversial body. I have not always agreed with their actions in my part of the country. I am sure all of us do not agree with some actions of almost every organisation.
Some members of An Taisce have probably overstepped their responsibilities. I attended a meeting of An Taisce quite recently. It was a public meeting and they refused to give me permission to address them. They may have had a reason. Three or four people in the room kicked up a row because of some decision I had made at a meeting of a local authority. I am prepared to forgive them for that, even if they are not prepared to forgive me for my action. I would be glad to see the chairman of An Taisce playing his or her part on this committee of selection.
The Minister has accepted that the chairman of the General Council of County Councils should be included in this committee. I welcome that. I am surprised that more speakers did not refer to this in the Second Stage debate. It was quite the opposite. However, for the first time they are getting some say on the planning appeals board. I welcome this. If there was to be any extension of this committee I would welcome the inclusion of the chairman of the Association of Municipal Authorities but it has to be remembered that the chairman of the General Council of County Councils is representative of all planning authorities. The same cannot be said of the chairman of the Municipal Authorities because many of them are not planning authorities. As has already been stated, members of municipal authorities can also be—many of them are—members of a county council. In some way it could be seen as a duplication. The Minister's committee appears to have one member too many but there is nobody I would exclude. I suggest to the House that they oppose this amendment for those reasons.
I should like to ask the Minister, with regard to the appointment of the chairman of the General Council of County Councils what his position on the board will be. I welcome the amendment which allows the General Council of County Councils to be represented because that will give an input into the planning board by the elected representatives of the county councils.
The chairman of the General Council of County Councils is selected for a period of one year only. Am I to assume that there will be a change every year? Will the chairman for that year sit on the new board or will he sit for five years? Will there be a change every year?
I have never been critical of An Taisce. They fulfil a very important role in a difficult and controversial area but I would like to see the chairman of the Association of Municipal Authorities of Ireland included on the list. An Taisce will be a party to many of the appeals going to the board and in this connection reservations have been expressed publicly.
In response to this amendment I should say that in the other House we accepted the proposal from Fianna Fáil that on what is essentially an interview board to provide a shortlist of three suitable candidates, that the elected representatives, along with other interests, should be formally and properly represented. It was in that spirit that the Minister accepted the chairman of the General Council of County Councils in place of what had previously been proposed, the Secretary of the Department of the Environment. I will quickly give the House the thinking behind the representation. The President of the High Court is there to represent the judicial and legal dimension. The chairman of the General Council of County Councils is there to understand and reflect the attitude and operations of elected representatives at local level. The chief engineering adviser represents all the technical and professional side of the planning process. If we had gone for an architect, an engineer or a planner there would be claims that the other professions had been excluded by including one. Therefore, as Senator McMahon pointed out, we would have had too big an interview board. The CEA is there in a comprehensive capacity. The president of the CIF represents the construction industry, which has a self-evident right to be there. Similarly, the President of the Irish Congress of Trade Unions represents the workers within the construction industry, the CIF representing the contractors in the main.
In relation to An Taisce, as Senator O'Mahony rightly pointed out, it is in the consumers' interest. I am what one could be described as a card-carrying member of An Taisce. I note from the back of my membership card that the aim of An Taisce is to conserve our physical heritage, our amenities and our historical, scientific and artistic assets for the benefit of those living in and visiting Ireland. It continues, "this heritage is being whittled away by neglect, pollution, exploitation, uncontrolled development and natural forces". The card states that An Taisce, the National Trust for Ireland, was founded in 1948 and is a voluntary body entirely independent of Government. It is governed by an annually elected council and membership is open to all who support the objectives of the trust. There was an unfortunate attack, misguided for parochial reasons, from some Members of Fianna Fáil. It would be untrue to say it is Fianna Fáil policy. Senator Lanigan and other Senators from the Fianna Fáil Party have clearly indicated their appreciation of what An Taisce have provided.
There is a very simple test in relation to An Taisce that anybody can do for themselves: would this country be environmentally richer or poorer if An Taisce had not existed over the last 20 years? The answer to that question will very quickly indicate why An Taisce is the prime voluntary organisation charged with responsibility in this field, by themselves and by the Government, who prescribed them as a listed organisation in the regulations to the 1963 Act. Of all of the environmental organisations An Taisce is the obvious one to be included on the interview board to select three names to go forward for appointment by the Government to the position of chairman of An Bord Pleanála.
Senator McMahon has made the point that not all municipal authorities are planning authorities and therefore, not all of their members have direct planning experience in the sense that the county councillors have. We have achieved the objective, following the amendment put by the Fianna Fáil Party in the Dáil, of having formally represented on the interview board the elected representative at local level. Accordingly, in order to keep the interview board compact and small in numbers, I cannot accept the amendment put forward by Senator O'Toole.
In case any Member may feel that the main purpose of the amendment was to delete An Taisce and include the chairman of the municipal authorities, had I given more thought to the amendment I could have drafted it to leave An Taisce and add the chairman of the municipal authorities to prove that that was not the reason. While we have had the inclusion of the chairman of the General Council of County Councils, we feel that the municipal authorities are a group on their own representing town commissioners and urban councils. They do not have the opportunity of sitting with the General Council and we felt they would be suitable people to be involved in the selection of the chairman. I do not think I will be able to amend my amendment to seek that An Taisce be retained and the chairman of the municipal authorities be added. If that was possible I would amend it to prove to Senator O'Mahony and others that that was not the motive behind the original submission.
Amendment put and declared lost.
I move amendment No. 3:
In page 5, to delete subsection (6).
This section gives the Minister the right immediately after the passing of this Bill, to amend all the appointments if he thinks that is the thing to do, if he feels any unsuitable person is appointed by the selection bodies. If a board is set up with a specific function as in this case, we on this side of the House feel the Minister should not have the right to select or to later insert a section amending this. That is giving the Minister too much authority. Maybe it is a safety valve, or maybe the board in their wisdom, or the absence of it, would select somebody who would be highly unsuitable, and the Minister would be right in having this authority, but if a select group are given a job to do, and if they select a chairman, he should be accepted.
I could not agree with the amendment. The Minister was in some way — and this dates back to 1976 — shirking his responsibility with regard to planning. I would not like to see a committee set up which would recommend a number of names from which it would be the responsibility of the Minister to choose one. Whomever the Minister chose could have some shade on his character. Information on that person could come to hand after he had been selected by the committee and the Minister's hands would then be tied. I do not think it is right that the Minister should make the selection.
Subsection (6) (c) reads:
Where an order under this subsection is proposed to be made, the Minister shall cause a draft thereof to be laid before both Houses of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
This comes back into this House if the Minister does not see fit to appoint any one of the three.
Senator McMahon made the point I wanted to make, which is that we are trying to do two things here. I accept what Senator O'Toole is saying that it does not make sense apparently to set up this process and then to retain to yourself the power to by-pass or ignore it. If, for example, the General Council of County Councils were to merge with some other body or to change, which is unlikely, or if An Taisce were to wither away from the attacks that they have been subjected to, or if we wanted to add some other body that might feel it had a need to be represented, paragraph (c) gives the Minister these powers. This is an enabling provision. Similarly, if in the unlikely event — nevertheless legislation must have regard to all possibilities — the three names proposed by the selection committee were unsatisfactory for any reason that one cannot envisage at this stage, it is only right and proper that the legislation should give the Minister, subject to approval by the Houses of the Oireachtas, mobility and flexibility in ensuring that the chairman of An Bord Pleanála would be appointed.
The consequences would be disastrous if we found ourselves in a situation where, through a combination of events, the Government were unable to appoint a chairman for whatever reason might have arisen. I am speaking about hypothetical possibilities, but nevertheless legislation must have regard to that. We could have a situation where there would be no board with a consequent pile-up of applications which would inhibit development in our economy, with the loss of jobs and the loss of activity. That is the sentiment behind that subsection and behind paragraph (c) in particular. For that reason, regrettably, I cannot accept this amendment.
Amendment put and declared lost.
I move amendment No. 4:
In page 6, subsection 8, line 40, to delete "appointment." and substitute the following:—
"appointment,
and in the event that paragraph (b) of this subsection still applies to the appointment to be made, the Government shall appoint a duly qualified person (who shall not be an established civil servant for the purposes of the Civil Service Regulation Act, 1956) to be chairman."
In our opinion, the chairman of the board should not be a member of the civil service. This section gives flexibility to the selection of people from outside the civil service. It would appear that regardless of who is selected, in the ultimate analysis the man who is appointed will be from the civil service. Unless this amendment is accepted, it is on the cards that the next chairman of the board will be a member of the civil service. If the Minister can prove to the contrary, I will accept that. It appears the Minister is taking powers from the selection board. Prescribed associations are set up to nominate three people, and we would be ensuring, by inserting this amendment, that they will not be members of the civil service.
There is a feeling abroad that when one enters the domain of the civil service one enters a bureaucratic system. We may not get an impartial viewpoint if the chairman comes from the civil service, if he is aligned with the bureaucrats and the civil service. That is why we are trying to take it out of that domain and have an independent chairman. I do not wish to name any particular group but it should be a representative of people competent to judge on important decisions. There is an example in today's press of one of the biggest planning applications in this country under which Dublin County Council have granted permission for a major office block in this city. We need a person with ability, experience and shrewd judgment to be chairman of this board. We feel it should be taken out of the hands of the civil service. That is the reason such provision is included in our amendment.
Senator O'Toole is getting his local authorities confused. We in Dublin County Council have been blamed for enough without being blamed for things we do not do.
It is publicity anyhow.
There is a great difference between the city and the county.
And there is more to Ireland than Dublin.
This is an extraordinary amendment. Senator O'Toole is now endeavouring to do to the civil service what some sections of the media have been trying to do to politicians. How it would fit in with an earlier amendment on the same thinking I do not know. First of all there is to be a committee appointed to advance a number of names from which to select and then their hands are tied. There are many who would maintain that the brain drain of this country went into the civil service in the sixties. I do not think a body like that should be excluded. I should not like to think that the committee of selection would concentrate on the civil service when seeking suitable candidates. I would hope they would take the entire population into consideration, including people who have proved themselves in other areas. Certainly I would be opposed to the civil service being excluded from their list because there are excellent people within the civil service, many of whom would be suitable candidates for consideration, if not suitable candidates for selection as chairman, as well as many people in other fields.
I share Senator McMahon's view that it would be unfortunate to exclude any category of people from being eligible for the post of chairman. I am sure there is no intention that the chairman should be a civil servant. I am sure nobody has any particular intention at present until the selection procedure gets under way. But it would be unfortunate to exclude a category of people who have experience in this area from being eligible for the post.
Perhaps one thing that has not become clear during our discussion is that this board is unique in its format compared with any other State board, in the sense that it will involve full-time activity at high executive level of operation. Therefore, civil servants obviously would be one of the categories that could be deemed to be suitable. There is absolutely no reason why they should be excluded from eligibility, just as there is absolutely no reason why the chairman should come from the civil service itself.
I find it difficult to understand why Fianna Fáil put down this amendment. They seem to have some fear that a civil servant will be appointed. I want to say to Senator O'Toole that, as far as I am concerned and know, there is no hidden candidate for this post. Certainly I would refute his claim that already some member of the civil service is being groomed for this position. I want very definitely to refute that and put it formally on the record of the House.
The House has agreed just now to the composition of the selection committee. One member of that selection committee will be a civil servant, albeit a technical civil servant. If any member of the civil service applies for this post in the manner in which, if it is to be advertised — and that has still to be decided in the normal way, whatever form the advertisement for the job takes — if any member of our society wishes to apply for that position, is subsequently interviewed by this committee and then listed among the three names as being suitable by the committee representing the whole spectrum of society, I do not see why that person should not be eligible for appointment by the Government. Therefore, I consider this to be a restrictive proposal. Indeed, the public service unions might have a claim that it was against the constitutional rights of their members and possibly would have a claim in natural justice that it was against the rights of their members. Accordingly, for that reason and others, I reject the amendment.
Acting Chairman
Is the amendment withdrawn?
No.
Question "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
I move amendment No. 5:
In page 7, subsection (12), line 8, to delete the words "seven years" and substitute "five years".
I have something to say on the section. I was biting my tongue because up to now we had been talking on amendments. There are two matters to which I should like to refer on this section. One is the inclusion of the President of the High Court in the list of people who will form part of the committee to make the selection. We are in danger in this country of over-using the Judiciary in these functions. I am very worried that we are running contrary to the spirit of the Constitution if not contrary to the letter of the Constitution. I was not a Member of the House in 1976 when the Planning Act of that year was passed which had the extraordinary effect of making a High Court judge responsible as chairman of the Planning Appeal Board, which has an administrative function. In my opinion that was in some way incompatible with Article 35.3 of the Constitution which says:
No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position of emolument...
I recognise that membership of this committee is not a position of emolument. But it is straying very far across the dividing line between the independence of the Judiciary from the Executive and the Legislature. In my opinion it is following a trend which has developed not only under this Government but under successive Governments to ask members of the Judiciary to perform functions which touch on policy matters, and this is a policy matter. Obviously the committee will have to consider the personal qualities of the candidates who present themselves for appointment—that is reasonable and fair—and there is nothing really wrong with that. The use of the President of the High Court in that matter is a valid use of the experience of the person who for the time being happens to hold that position. What the committee may also have to do is to examine the philosophy towards planning of the applicants and decide which of the many approaches appeals to them as being the proper way in which planning legislation should be interpreted. And to a large extent, legislation like that is a matter for interpretation. Once the committee is called upon to make that kind of judgment, the President of the High Court is acting in a way in which he should not be expected to act because he is making a value judgment on policy decisions of the day. The increasing use of judges for matters of this kind should be watched carefully.
On the question of chairmanship, I welcome the provisions here whereby the chairman will be appointed and need not be a member of the Judiciary. I was never happy with the concept of appointing a judicial person. The difficulties experienced in the past 12 months in this regard whereby it was impossible to appoint a new person to this position were most unfortunate. It was particularly unfortunate because the individual who was proposed for this appointment would have been eminently suitable. Extending the range of the type of people who can be appointed, while not excluding those who have legal experience, is to be welcomed. It is important that it be put on the record of the House that the person proposed for appointment but who could not be appointed because of a lacuna in the law would have been a suitable person.
An Leas-Chathaoirleach
We are taking amendments Nos. 5 and 7 together. That was an earlier decision of the Chair. The second amendment had not been taken.
We consider the period of seven years for the chairman much too long. A re-appointment can be made if the chairman is found to be a suitable person and the same applies to the ordinary members. We want their term reduced from five years to three years. It is to shorten the duration of office of either the chairman or members. If they are found suitable they can be re-appointed but if they are found unsuitable the period of time is somewhat long.
I think the seven-year period is a long time. While I agree that the case could be made for a longer period in the interests of continuity, it is a sensitive area and one of rapid change. A period of five years would be more acceptable. Perhaps the Minister took the middle course. On balance, a five-year period would be better and the situation would be more responsive to Government control. As regards continuity, there should be no problem. The machinery is there for a re-election and subsequent re-elections. The same would also apply to section 7, to reduce the period from five years to three years. This is the situation at present and so far has been quite satisfactory.
I cannot accept either of these amendments. I presume it is in order to take them both together. For reasons that all of us will appreciate, we are establishing a procedure whereby well qualified, objective people will come through the process, both for the ordinary membership and for the chairman of the board. Having gone through that, it does not seem to make sense to shorten the period of time from seven to five years. It will take some time for the person to get into the job and to settle down to a steady stream of work without won-yea dering whether they are going to be reappointed as chairman or as an ordinary member.
I would like briefly to refer to the comments on section 5 that Senator O'Leary made in relation to the utilisation of the Judiciary. First of all, I would like to concur with his view regarding the proposed nominee to the chair of An Bord Pleanála who, because of a legal lacuna, was incapable of being appointed at the time by the previous Government. In my view, he would have been an eminently suitable person. Having said that, Senator O'Leary's contribution in effect cancels itself out. On the one hand, he queried the utilisation of the President of the High Court in the selection committee but at the same time he welcomed the fact that we were no longer making it a requirement that the chairman of An Bord Pleanála should be a High Court judge.
You are not going far enough. He is still doing a job that he should not be doing.
There is a precedent for this. The Chief Justice was involved in the selection committee in a manner very similar to what we are proposing now for the appointment of the DPP. The operation of An Bord Pleanála has a semi-judicial framework to it and to the extent that a High Court judge is capable of evaluating, along with four or five other people, the qualities of a particular candidate in terms of his or her ability to exercise balanced judgment — one of the qualities that the chairman of An Bord Pleanála will require — the utilisation of the President in this context is one which in no way compromises the proper and clear distinction between the execution of justice and the role of the Judiciary on the one hand and, on the other, the policy and the implementation of policy by the Oireachtas.
I take it we are still on the two amendments. I believe that if we were to shorten the period of seven years to five years and five years to three years we would be excluding quite a number of people who would be qualified to do this job. I am satisfied that many people who are selected will refuse to serve because in the first instance there is a backlog of over 3,500 applications. I am sure many people will have second thoughts about serving on a board that will only nibble at the problems before them. There is no doubt that over the next few months this backlog will increase because of the flood of applications. Even though the cost of planning applications has increased this figure will increase.
The incoming board have an enormous task which could not be done in three years. I could not agree with shortening the term of the board because five years will be too short to deal with the backlog and appeals coming in. I see nothing wrong with having a chairman for seven years. The quality of the chairman is bound to be better because of the term of seven years. The quality of the members of the board no matter who they are, is bound to improve with experience. If at all possible I would retain members rather than shorten their period of office, I would certainly give them a five-year run at it and retain them if they are satisfactory. Anyone who has served on local authorities will know that the more planning applications you deal with the easier it is to make the right decision.
I do not accept the argument advanced by Senator McMahon. You could set up a board and a chairman and they could go into hibernation for seven and five years respectively. They might not deal with backlogs but the Minister has no power to remove them.
We have.
He can reappoint them after three years and that is all that is required. If the members are carrying out their duties effectively in getting rid of this backlog the Minister will be in a position to reappoint the chairman in five years and the ordinary members in three years. I see nothing wrong with that. It is a safety valve whereby, after three years the Minister may examine the output of the board, their conduct and decisions. If there is any incompetence on the part of the board he can remove the members after three years, or five years in the case of the chairman. If they are doing a good job he can retain them for a longer period. I do not, therefore, see any validity in Senator McMahon's argument.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 21; Níl, 12.
Tá
- Belton, Luke.
- Browne, John.
- Bulbulia, Katharine.
- Connor, John.
- Deenihan, Jimmy.
- Ferris, Michael.
- FitzGerald, Alexis J.G.
- Fleming, Brian.
- Higgins, Michael D.
- Hourigan, Richard V.
- Howard, Michael.
- Kennedy, Patrick.
- Loughrey, Joachim.
- McAuliffe-Ennis, Helena.
- McDonald, Charlie.
- McGonagle, Stephen.
- McMahon, Larry.
- O'Brien, Andy.
- O'Leary, Seán.
- O'Mahony, Flor
- Robinson, Mary T.W
Níl
- Cassidy, Donie.
- Ellis, John.
- Fallon, Seán.
- Fitzsimons, Jack.
- Honan, Tras.
- Kiely, Rory.
- Lynch, Michael.
- Mullooly, Brian.
- O'Toole, Martin J.
- Ryan, Eoin.
- Ryan, William.
- Smith, Michael.
Tellers: Tá, Senators Belton and O'Mahony; Níl, Senators O'Toole and W. Ryan.
Question declared carried.
Amendment declared lost.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7.
I move amendment No. 6:
In page 8, between lines 33 and 34, to insert the following new subsection:—
"(2) When the Minister has prescribed organisations under subsection (1) of this section, the Minister shall:
(a) make an order listing the organisations so prescribed, and
(b) cause a draft thereof to be laid before both Houses of the Oireachtas and that order shall not be made until a resolution approving the draft has been passed by each such House."
We submit that this House and the other House should know what organisations are involved. The Minister has not to date submitted the names of the organisations. I do not know if it is his intention to do it now. The reason for putting down this amendment is to ensure that we know the organisations and that this will be laid before both Houses of the Oireachtas.
There is a distinction here. By providing for a Minister of the day you are, in effect, giving that Minister the power to alter the legislation, as we had earlier on in relation to adding or subtracting from the list of people who would be represented on the selection committee. Where that provision has been made in the enabling sections of the legislation it is right and proper that the draft of that proposed change, since it is in effect a legislative change, should come before the Houses and should be voted upon before it is implemented. In this instance, where there is no legislative change proposed, we are in accordance with normal legislative procedures. I do not think it is necessary for us to do what the Senator is requiring. Accordingly, I do not accept the amendment.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
We discussed amendment No. 7 with amendment No. 5.
Amendment No. 7, by leave, withdrawn.
Section 7 agreed to.
Sections 8 and 9 agreed to.
SECTION 10.
I move amendment No. 8:
In page 11, to add a new subsection as follows:—
"(3) No person shall cease to hold office by virtue of this section unless or until Articles 6 and 10 of the Schedule of the Act of 1976 or sections 5 (15) and 7 (12) of this Act have been invoked by the Government or Minister as the case may be."
An Leas-Chathaoirleach
This amendment was discussed with amendment No. 1.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Sections 11 to 14, inclusive, agreed to.
SECTION 15.
I move amendment No. 9:
In page 14, between lines 9 and 10, to insert a new subsection as follows:—
"(4) Notwithstanding the provisions of this section the Minister shall retain his powers in relation to oral hearings under section 16 of the Act of 1976 and for the purposes of this subsection, section 25 of this Act shall not apply to the said section."
The reason for this amendment is to get the Minister to retain power whereby, in the event of any extreme decision which might contravene the regulations, he could rectify matters. In this section the Minister is giving away the power he has, so that regardless of the decision there will not be any power vested in the Minister to call an oral hearing.
Oral hearings give appellants and objectors and other parties opportunities to attend sittings and to be legally represented. Everybody should have an opportunity to make their views known to an independent adjudicator. Later we will be dealing with the adjudicator's decision but the Minister should retain this power in this section. In many circumstances he will not have to use it but it is a safeguard for the public. The amendment would give an opportunity to all parties to tease matters out in public.
We reject this amendment because the purpose of taking away the power that had been there was to eliminate the perception of some people that the ministerial power gave the Minister some kind of planning influence in the decisions that ultimately would come from An Bord Pleanála. Because we are trying to remove the power of whoever is the office holder of the day from adjudicating on individual decisions, it must be remembered that the making of law is a political process but the adjudication of cases under the law should be exclusively, and seen to be, a judicial process. Therefore, for the same logical reasons I do not think it would be right and proper to retain from the old legislation the power of the Minister to order an oral hearing after the board, in their wisdom, had decided, for whatever reasons, that an oral hearing would not be appropriate.
I was a consultant architect, both for appellants and objectors on occasions, and I became relatively familiar with planning as it operated in Dublin, in the main. The provisions for vexatious appeals that were written into the 1976 Act was unsatisfactory because it was hard to substantiate it in legal terms, but I had direct knowledge of third party appeals lodged with the explicit intention of delaying developers for so long that it made it worth the developers' time to buy him or her off who was arguing about the price of the property to be acquired or some such matter. One way to delay the process longer was to insist on or attempt to have an oral hearing on a matter that did not really warrant such a hearing, and all of the adminsitrative apparatus that went with it. Having said that, in subsection (2) we are retaining the power, by way of regulation, to require the board to hold oral hearings for categories of appeals and planning developments. By way of motion, the Minister and the Oireachtas will have the power to require, in matters of major public concern or controversy — for instance, ministerial intervention in a development plan — that an oral hearing be held. Oral hearings should not be held on small matters in which the arguments for and against can be put down clearly on paper and when the oral appeal would not materially add to the information available to the board when they would be making their final decision.
Amendment, by leave, withdrawn.
Amendment No. 10, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 11 and 18 are related and may be taken together.
I move amendment No. 11:
In page 14, between lines 9 and 10, to insert a new subsection as follows:—
"(6) Section 20 of the Act of 1976 is hereby amended by the insertion of a new subsection as follows:
‘(5) The transcript of evidence submitted with the full report of the person conducting the hearing and the planning inspector's report shall be available as a document of public record.'"
Up to now reasons for decisions by the board after oral hearings to grant or refuse planning permission have not been made known to appellants or anyone else. A transcript of the evidence offered at a hearing should be available to appellants, third parties and objectors on request at a nominal charge. The Bill should provide for this. People at public service level may feel that the public should not know the reason for a decision, but we consider the transcript should be available to anybody involved in an application.
I agree with the sentiments expressed by the Minister regarding vexatious third party appeals. I have known of people who put forward names in support of an appeal and have forged signatures for that purpose and were forced to withdraw those names. After that the vexatious appellant went even further and appealed to An Bord Pleanála. I am talking about an appeal that was lodged last November and has not yet been dealt with. It is a vexatious appeal which could be dealt with in five minutes by the board, but it must take its place in the queue and wait until an inspector goes down to make his investigation. Notwithstanding the fact that the local authority of my county called for an early decision, an early decision was not forthcoming. Grants made available to certain development groups under an amenity scheme were withdrawn and now we are deciding on new grants and a decision has not yet been reached to this one. Some short cut should be provided to deal with this type of vexatious appeal which has no motive other than to delay and disrupt and try to stop development. The charges imposed in regard to appeals should be even greater than they are. Many vexatious appeals would not be forthcoming if the appellants had to pay high charges for a hearing.
I support Senator O'Toole on this amendment. Most people recognise that we have, so to speak, a closed civil service and this view seems to pervade a great deal of our legislation and serves neither the civil service nor the public at large. The public feel somewhat remote from the decision-making processes throughout the whole public service and this in turn leaves civil servants at a disadvantage and they are accused, wrongly on many occasions, of being faceless individuals by an uninformed public who are incapable of penetrating the processes. Secondly, I support the amendment on the basis that we have failed to create and to communicate to the public a greater interest in planning as a whole. County development plans and other such matters are remote from the public, apart from an individual who has planning application. In the educational process towards greater enlightenment with regard to planning laws and a greater understanding on the part of the public of the problems involved and of the harmonisation one must try to have in relation to these laws, it would be far better if the information in relation to these appeals was available to the public.
I am surprised at the Minister of State, who generally tends to have a quite enlightened and progressive view of matters like this. He seems to be tightening up the situation again when we have an opportunity in legislation to open it out. There is nothing in it to hide and this seems a regressive step which is continuing what has been enshrined in a great deal of legislation which has done no good to the civil service, which does nothing for the planning appeal and perpetuates a situation which leaves the public unwilling or unable to co-operate, at many times not understanding why decisions are taken.
The function of the board generally will be a rubber-stamping exercise. In the greater percentage of cases the inspector's report will be adhered to, but there may be instances when this will not be so. It is important that the public know on what basis appeals are decided. There is nothing to be lost and everything to be gained by providing for this. All that is required to achieve that is more finance. It is really a financial problem of providing the staff who will provide these full reports for each case which should be made available to the public.
We should have regard to the background against which this legislation is taking place. I have no personal objection to the idea that an inspector's report would be made available. We are talking about two separate things. Senator O'Toole talked about the transcript of the evidence of an oral hearing. For clarity I inform the House that a verbatim note is taken at an oral hearing and transcribed and the transcript is available currently to members of the public on payment of the reproduction charges. However, I think the amendment is more concerned with the inspector's recommendation. The report of the inspector invariably contains a recommendation regarding the planning permission. If, against the present background of concern over the propriety with which planning decisions are arrived at, an inspector's report is published — Senator Fitzsimons alluded to this — recommending the granting of permission subject to a number of conditions, and the board in their wisdom decide not to take that recommendation but to reverse it and refuse planning permission — which is their statutory right as they are the decision-making body — it is possible that controversy would arise over the decision of the board vis-á-vis the technical recommendation from the inspector.
I understand the spirit which motivates the amendment. I want to avoid a situation where the board is seen to be at variance with its inspectors. On the other hand, there is a need for An Bord Pleanála, in the granting or refusing of a planning appeal, to explain why and to give the planning context within which they arrived at their decision.
Senator Alexis FitzGerald on Second Stage made a reference to this along lines similar to what Senator O'Toole said in moving his amendment. Under section 4 we can require the board, when making its decisions known to the public, to clarify the reasons for making its decision in a particular way so as not to have the decision apparently drop out of the sky without any reason attached to it.
In relation to vexatious appeals, section 16 allows the board to dismiss summarily an appeal if, in its considered view, the appeal is vexatious or does not warrant the full operation of the procedures of An Bord Pleanála. That answers the point that Senator O'Toole was making in relation to the case he cited in County Mayo.
Having made that point in relation to section 16 and the summary dismissal of potentially vexatious appeals there is a need which we recognise for the decisions of the board to be explained when they are formally communicated. At this stage, to make it a requirement of the legislation would not be helpful given the general climate within which we are trying to rescue planning.
Amendment put and declared lost.
Section 15 agreed to.
SECTION 16.
I move amendment No 12:
In page 14, between lines 26 and 27, to insert the following new subsection:—
"(3) Section 14 of the Act of 1976 is hereby amended by the insertion of a new subsection after subsection (8) as follows:
‘(8A) Where, on appeal to the Board, the decision of the Board in granting a permission would materially contravene the development plan or any special amenity order relating to the area, the Board shall call upon the planning authority to show cause why the Board should not so decide and after consideration of such submissions as the local authority may make, the Board shall then make its decision'."
This is a very important amendment in that it safeguards the county development plan. The local authority will have an opportunity to have a look at submissions and decisions. They will be able to see if a decision contravenes a county development plan. That is necessary because each authority have their own development plan and it is important that there is a liaison between the authorities to ensure that there will not be any contravention of a development plan.
The power already exists for a local authority for be consulted properly in the normal appeal process if a material contravention is implied or might result if planning permission was granted. Therefore, I do not think it is necessary to give the planning authority a second chance. However, I also recognise that in many cases the actual legal development plan may be deficient or out of date. The planning proposal may, while necessarily requiring a material contravention——
Or maybe on the review of it.
That is right. I will give an undertaking to Senator O'Toole that in making the regulations under which the board would operate its procedures for oral hearings and so on, we will bear the proposal from Fianna Fáil in mind and require An Bord Pleanála to have, in any case where a material contravention would arise as a result of a planning permission being granted, an oral hearing. I accept the spirit of what the Senator is proposing. I will look positively, with the Minister, at the proposal to include that in the recommendations.
Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
This section deals with the situation that arises where a person has appealed to the board and does not state in writing the grounds of that appeal. It states that the board may serve on the appellant a notice requiring him within 14 days to submit to the board a written statement of the grounds of the appeal and stating that in default of compliance with that request, the board could determine the matter without further notice as if the appeal had been withdrawn. I agree with that. It goes on to make the most extraordinary provision subsequent to that. It states:
Where a notice has been served under subsection (1) of this section, the Board may, having considered the response (if any) to the notice, at any time after the expiration of the period specified in the notice and without further notice to the party on whom the notice has been so served, if they so think fit declare that the appeal to which the notice relates shall be regarded as having been withdrawn.
It is clearly envisaged under subsection (2) that this is to apply whether or not there has been a response to the notice. It does not only apply where there has been no response to the notice. One would imagine what would happen is that if somebody puts in a frivolous appeal, he is asked to state his reasons in writing and if he does not respond to the letter or does not give any reasons, the appeal can be deemed to have been withdrawn. According to the way this is written, it appears that even if a person responds at that stage giving full details of his appeal, the board can still decide, having considered the matter, not to treat the issue on its merits but to treat the appeal as having been withdrawn. That is a most extraordinary provision. I cannot see how we can reconcile that with the proper consideration of an appeal by the board. What we are proposing is to limit the right to appeal and insist that a person gives the basis of his appeal. People should be given 14 days in which to do that. Having received the full response which they requested, the board can then, without further notice to the party, declare that the appeal to which the notice relates shall be regarded as having been withdrawn, even though the subsection states: "in default of compliance with the requirements of the notice". Under subsection (2), even if the person complies with the requirements of the notice, they can still decide to treat the appeal as if it was withdrawn. In those circumstances, it is a most extraordinary position. The Minister may say that is not the way it will operate, but that will be the law. The law will state that it is capable of being operated in that way. It is capable of being operated in such a way that you could send a notice to a person saying "If you do not respond, we will treat your appeal as withdrawn", and when they respond, you can still treat their appeal as if it were withdrawn. That is very badly drafted legislation.
This section should be debated in conjunction with the very useful debate which we have had on the effect of vexatious appeals on the planning system to date. My clear personal experience is of attempts to delay the process by evasive or half answers to requests for information as to the grounds of appeal. In line with the thinking on section 16, where the board reasonably feel that an appellant, third party or otherwise, is attempting to misuse the legislation for other purposes and is not really complying with the requirements to state the grounds of the appeal, that power can clearly be there in law to terminate the appeal process and to assume that the appeal has been withdrawn. Politically and professionally, in that sense, this is based upon experience.
Senator O'Leary is concerned that this offends natural justice and is esentially a draconian measure to write into legislation. However, all this legislation must operate within the framework of the Constitution and of natural justice. If a case arose whereby under section 17 (2) the board clearly and manifestly acted improperly or unreasonably, no doubt the appellant would have a very good case in law to have that decision overturned. The board, given its nature and that of its membership, would not be disposed to act in that way. The general provisions of the Constitution and natural justice protect unreasonable abuse by the board of this section. It is specifically written in for the reason to which I referred earlier — to give effect to the requirements that the board could, in their judgment, come to the conclusion that an appeal was de facto and de jure withdrawn when, under the present system, it simply is unsatisfactory, and has resulted, in my direct experience, in appeals dragging on for perhaps six weeks or two months longer than necessary.
I am not disputing the necessity for the provision and am at one with the Minister on that. I am merely saying that it appears to be extraordinary legislation. Would the Minister correct me if I am wrong in this? Is it possible under section 17 for someone to receive a notice and submit in writing his or her response, and the board having considered the response, the appeal would be treated as if it were withdrawn and not considered on its merits? If a person responds at all, the matter should be considered on its merits. That does not mean going into the full appeal procedure but it should be considered on its merits rather than withdrawn. If it is withdrawn, the person notified will say that his appeal was not considered on its merits and will succeed in such an application. An attempt to use that provision where there has been any response will fail. It does not achieve the necessary objective, with which objective I agree.
I agree that there should be a response and that if it is considered inadequate the appeal should be decided on its merits. On the basis of an inadequate response, the decision could be not to allow the appeal, but it should not be treated as withdrawn. Supposing the person appealing is asked why he is appealing and the answer is that it is not in accordance with the proper planning and development of the area, which is the classical appeal procedure? If he does that, he is entitled to have the matter considered on its merits. There may be no other grounds for the appeal. He may not think the house or the factory is too high or too low or too long. The nature of the power which appears to be given to the board is excessive but, in practice, because it is so excessive it will not work. That is my real objection to it. The board, on advice, will find that this section cannot be used.
I find myself in agreement with Senator O'Leary in his criticism of the drafting of subsection (2) of this section. It is, to say the least, very unhappily drafted. It appears to give a power which I do not think was intended and which, if it were exercised, could be subject effectively to challenge. It appears to give the power to the planning board, having furnished a person appealing with a notice, regardless of what is in that notice, to consider it and then deem the appeal to have been withdrawn. This is particularly undesirable because there will be grey areas where the person in response to the notice will say something and there will be a doubt as to whether that something is a reason for an appeal. It may be stated in very general terms. Nevertheless, there will have been a response and a written reference by the person appealing to grounds on which that person wishes to have the appeal considered.
I take the Minister's point. It is correct to say that because this is an Act which would have the presumption of constitutionality, there would be a presumption of fair procedure and of natural justice going with that. Nevertheless, the express wording here seems to enable the planning board, having considered whatever response is put in by the person in reply to the notice sent by the board, without any further contact with that person to regard the appeal as having been withdrawn. Even that word "regard" is very broad in that context. Where an appeal has clearly not been withdrawn the board can regard it as still having been withdrawn. Now that my attention has been specifically drawn to it, I am not happy with that wording.
I must confess that we are not exactly ecstatic about that wording. In response to the drafting point which Senator O'Leary is making, I will draw to the attention of the Minister in the drafting of the legislation that in the exercise of section 17 regard will have to be had to this, and that in effect the word "withdrawn" should have been "dismissed" on the basis of the grounds submitted not being adequate or not warranting the upholding of the appeal. In the operation of the Act, sections 16 and 17, particularly in relation to subsection (2), should be interconnected. We will certainly lock the two together in relation to the procedures under the regulations.
Would the Minister consider the matter further in his major review of planning legislation?
Yes.
I fully agree with both Senators who make this point, but there is another point under this section with which I am not entirely happy. It is that of requiring the appellant to give notice within the period specified in the notice, being a period of not less than 14 days beginning on the date of service of the notice. Very often the appellant will require professional advice in supplying the information to the board. He might find that his professional adviser is on holidays or unavailable and 14 days would just be too short a period.
I suppose the board will not act too swiftly after 14 days, but it could happen that the board would make a decision shortly after 14 days, and not give the appellant sufficient time to supply the required information. I ask the Minister to look at this and see what can be done about it. It is putting the appellant at a great disadvantage. He might be on holidays himself and after seven days afterwards he would get the notice and the people who were to advise him about supplying the information might not be available. A period of 14 days is very restrictive.
I do not share that view. If a person is appealing, the onus should be on him to provide the reason for the appeal. The least he can do is give the reason in writing on the date of his appeal. If he does not comply with that, he should provide it within 14 days. Otherwise people will play around with time. They will appeal, then wait for another 14 days, and submit it in writing. The section is fairly thight as it is. From my experience of what can happen in planning, it is legitimate to ask an appellant to give the reason in writing. If he does not give it in writing, and if the board are to consider it at all, he should give it within 14 days. I agree with the section, having regard to the Minister's reservations on the point made by Senator O'Leary and Senator Robinson.
The board are not required to deem the appeal to have been withdrawn if there has not been a response within 14 days. One would assume that the board will be reasonable and that a longer period would elapse. If a reasonable response came in after the period of 14 days, this would influence the board not to exercise their powers. There are times of the year when 14 days, if strictly construed, might be regarded as too short a period. There is no automatic cut off.
Question put and agreed to.
SECTION 18.
Amentments Nos. 13 and 14 are related and may be discussed together.
I move amendment No. 13:
In page 15, between lines 17 and 18, to insert a new subsection as follows:—
"(3) Before a notice under subsection (1) of this section may be served on any person who is not a party to the appeal the Board shall take into consideration whether it is reasonable that the said person should have possession or means of attaining such possession of the document, particulars or information so required."
The reason for these amendments is somewhat similar to the debate on section 17. It seems to be open to the board under section 18 to ask for information from a person who has made submissions or observations to the board. These submissions or observations could be very casual. The person concerned might have very little interest in the whole matter. Nevertheless the board can send him a notice requiring information and documents, and if he does not send them, possibly because he has lost interest in the whole thing, the board seem to be entitled to dismiss the appeal on the basis that they did not get the information they required. In other words, they could use it as an excuse for dismissing the appeal, although the part played by the person who sent in the observations might be very small indeed.
The two amendments are intended to tighten up the section. Amendment No. 14 says:
In page 15, between lines 17 and 18, to insert a new subsection as follows:—
"(4) Where a person, on whom a notice under subsection (1) of this section has been served and who is not a party to the appeal, can show reasonable cause that—
(a) he does not have possession or the means of attaining such possession of the document, particulars or other information specified in the said notice,
(b) the Board in the serving of the notice did not exercise due consideration in accordance with subsection (3) of this section,
then, non-compliance with the requirements of the said notice shall not be taken into account by the Board in dismissing or otherwise determining the appeal."
I am sure the Minister will say that to act as I have suggested would mean that the board were acting unreasonably and that a decision for such reasons would be subject to review. That is probably true. It seems to me that on the face of it the section as drafted allows the board to dismiss an appeal merely because some very casual person who wrote in and made submissions or observations could not be bothered to send in the information required.
I find it difficult to understand the necessity for an amendment of this kind. The considerations advanced by Senator Ryan in favour of the amendment are implicit in the section. Section 18 provides, "Where the Board is of the opinion that any document, particulars or other information is necessary..." That opinion is a statutory opinion. It would have to be formed on the basis of a reasonable assessment. That seems to be what is intended in the first amendment. It is quite unnecessary because it is implied in the exercise of the function.
I do not read the section as requiring the board in any sense to be influenced by whether or not information has been provided. I regard the board as being able to proceed either to dismiss or to determine the appeal without the information the board might have desired. They will apply themselves to the planning merits of the appeal and are not required by the section to be influenced by the fact that a notice looking for further information from a party who is appealing or from a third party was put into a submission. It would be quite arbitrary if the board used that as a basis for their decision. I do not think the section requires that. Although the points made by Senator Ryan are valuable in relation to how the process should work, I do not think the amendments are necessary.
I accept the view expressed by Senator Robinson. Both the amendments are redundant and unnecessary.
Senator Robinson is correct in saying that when the board is of opinion that any document, particulars or other information is necessary, they cannot make a decision unless they get that. The point is that it does not follow that because they consider the information is necessary they must look for it from somebody who has a very casual connection with the appeal and, if they do not get it, they can dismiss the appeal. It is probably true to say that if they cannot obtain information on a document or the particulars necessary to determine an appeal they cannot determine it. Why should they be able to dismiss the appeal or determine it in a particular way because this person is not willing or able or will not bother to give the information sought?
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Section 18 agreed to.
Section 19 agreed to.
NEW SECTION.
I move amendment No. 15:
In page 15, before section 20, to insert a new section as follows:—
"Section 25 (2) of the Principal Act is hereby amended by the deletion of paragraph (b) and the substitution of the following paragraph therefor:
‘(b) requiring planning authorities to publish a list of any specified notices with respect to planning applications in their functional area on a weekly basis in at least one local newspaper circulating in their area."'
I tabled the amendment because of our experience in a county which has five local papers. In a section 4 application that came before the authority it was stated that, even though we had five local newspapers in our county, the circulation of any of those papers might not cover a specific area with the result that the public would not have an opportunity to see an application. There are parts of the country where only certain newspapers circulate. Some people insert applications in the Irish language in an effort to deceive people or in a newspaper that is not widely read, but according to the Act they are covered. Our objection is that some applications may go unnoticed if they are inserted in specific national newspapers. Our contention is that the public should be alerted to any applications that are lodged. On a given day each week in a local newspaper that is widely read the local authority should publish a list of planning applications. If one owns land in Kerry and lives in Dublin how is one to know if a neighbour has an application in to build a piggery adjacent to one's holiday home? If the advertisement is inserted in the Dublin national newspapers it may not be read by people who buy The Cork Examiner daily. This is an intricate matter and in our amendment we have tried to deal with it.
When did the Senator meet a Kerryman who did not know exactly what was happening to every piece of land in the county?
What about the Kerryman who has his home in Dublin?
I could answer those remarks but I will refrain from doing so because I am aware of how anxious the Cathaoirleach is to get on with the business of the House. There is a problem in regard to this. Those who through no fault of their own do not see applications have a case. I do not know how the Minister can deal with the matter but we wanted local authority areas covered by local newspapers.
I strongly support the sentiments advanced by Senator O'Toole. However, the solution to some extent lies in the hands of local representatives because at county council level they could by way of resolution require a county manager to have published in a local newspaper that circulates in the county a weekly list of the applications to the planning authority. There is a precedent for this, because I understand that Cork Corporation insert such an advertisement. If there is a problem with regard to the cost because of the necessity of having to insert that advertisement in three or four newspapers there is no reason why the county council would not put up the advertisement for tender between the newspapers. People would get to know that on a specific date all planning applications will be published.
The question of giving reasonable and adequate notice to adjoining owners of property is something which has caused concern in planning circles for a long time. Under the general review of planning legislation we will look at that matter in the context of either requiring the next door neighbour of a particular property to be formally written to by the proposed developer or, alternatively, having a notice put on the site or requiring a local authority to publish a list of all the applications in a set place. That would be preferable to the current practice of inserting the advertisements in different pages on different days. There is no set place in the national newspapers for such advertisements because the lay-out policy of the newspapers varies. As a result one could easily miss an application. It is a problem but it is not relevant to this legislation. However, it can be dealt with by local county councils and I suggest to the Senator that Mayo County Council have open to them as of now the power to require the manager to advertise once per week in a manner that they decide is appropriate. That is part of the solution.
Amendment, by leave, withdrawn.
Section 20 agreed to.
Section 21 agreed to.
NEW SECTION.
I move amendment No. 16:
In page 16, before section 22, to insert a new section as follows:
"22.—Section 22 of the Act of 1976 is hereby amended by the insertion of the following subsections:
‘(3) The Board shall have an absolute discretion to extend the time for making an appeal under this Act (other than an appeal to a court).
(4) If at any time while the provisions of this section are in operation normal postal deliveries have been disrupted for any reason the references in the foregoing subsections to the third day shall be construed as referring to such period of disruption.'"
In the amendment we are referring to cases where there may be postal disruption or a document may become mislaid. I have such a document at present and I will not be covered under the Bill. In cases of postal disruption the board should have power to extend their decision-making process.
Again, we are talking about the proper and efficient operation of the board. If the Senator does not press the amendment I can tell him that we will try to ensure that the type of flexibility he is seeking is built into the operation of the regulations. I do not think the amendment is necessary.
The point is a valid one, especially in relation to postal problems, but in my view the board would hate to have this discretion because it would put pressure on them. There would always be reasons in relation to an appeal why somebody who did not lodge the appeal in time would seek to make a special case. The board would be oppressed by such special cases. If we were to give them absolute discretion we would put the board in a very difficult position. It would be better to try to cope with the problem by way of regulations or by trying to recognise that there may be certain circumstances where, through no fault of anybody, an appeal could not be lodged in time.
It is probably the one area of bureaucracy where fixing rigid time limits in relation to the requirement to grant a decision within two months or else get the decision by default—and similarly the 28 days in relation to the appeals period since the operation of the 1963 Act—has been remarkably successful. A propos yesterday's debate in the House of Commons, there is nothing like hanging to concentrate the mind. We have had remarkable success in getting decisions to operate out of local authorities throughout the country during train strikes, postal strikes and all types of disruptions. While I recognise the sentiments expressed by the Senator, I think it would be a retrograde step. I would like to see the time limit provisions which operate in the planning legislation applied to other areas of administration both at local and national levels.
I am prepared to accept the Minister's suggestion and to withdraw my amendment with a view to it being looked at again in about 12 months' time.
Amendment, by leave, withdrawn.
NEW SECTION.
I move amendment No. 17:
In page 16, before section 22, to insert a new section as follows:—
"23.—Section 22 of the Act of 1976 is hereby amended by the insertion of a new subsection as follows:
‘(5) Appeals shall be decided as soon as may be and any party to an appeal shall upon the expiry of two months be entitled to demand that the Board should show cause why the appeal should not be heard and the Board's decision given. Should the case shown be trivial or otherwise deemed by the High Court, on application, to be insufficient, the High Court shall have the power to direct the Board to determine such appeal forthwith.'"
The reason for this amendment is to put pressure on the board not to allow trivial matters to delay decision making. I mentioned earlier a case which could have been decided much more quickly if the applicant had had power to put pressure on the board to make a quick decision. The present system needs to have pressure brought to bear to reach decisions as quickly as possible and it was in that light that I put down this amendment. We thought if the appellant could take the board to the High Court, decisions would be made quickly. I believe under the new Bill decisions will be made more speedily because there will be more technical, professional and administrative staff available. Decisions have been made very quickly this week: whether that is coincidental with the discussing of this Bill or if the extra staff are responsible for it, I do not know.
Section 4 of this Bill will provide for regulations as soon as the backlog of applications is cleared and it is the intention to make very clear recommendations, if not absolute time limits, for the determination of appeals. At this stage we cannot introduce a fixed time limit, as we have done at local authority level, because of the backlog. There is such an enormous amount of work that it would not be physically or administratively possible to process them quickly. Prior to the 1979 postal strike the board were processing appeals within five to seven months, and I think we might get back to something of that order. It is the Minister's clear intention to prescribe regulations that would make that either a specific requirement or a very hard objective.
This amendment would allow a person, in the last resort, to go to the High Court. That provision exists already because a person can apply to the High Court on order of mandamus directed towards the board to hear and consider a particular appeal. It may not be used very often because getting to the High Court is not very easy for an ordinary person——
Even though he has friends in court?
Amendment, by leave withdrawn.
Amendment No. 18 was discussed with amendment No. 11 and is withdrawn.
When the Senator was discussing amendment No. 18 I was intrigued when he mentioned the cost for a transcript. I must say, 50p for an oral transcript would be very good value, and I would almost support his amendment on that ground.
There is a limit to what I could charge.
Sections 22 to 24, inclusive, agreed to.
SECTION 25.
Amendment No. 19, by leave, withdrawn.
Section 25 agreed to.
Section 26 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.
When will the new board be in operation?
There is no fixed timetable but we want to have the board set up as soon as possible — in about three months — but that is not a firm commitment.