Seanad Éireann debate -
Wednesday, 23 Oct 1985

Vol. 109 No. 6

Town Planning Decisions: Motion.

Mr. FitzGerald

I move:

That Seanad Éireann calls on the Minister for the Environment to issue a "General Directive" under section 6 (1) of the Local Government (Planning and Development) Act, 1976, to An Bord Pleanála instructing An Bord to give an accompanying statement with each planning decision on the "Good Town Planning Reasons" taken into account in deciding to grant or disallow the planning permission.

I am very glad of the opportunity of speaking to this motion which I believe is widely a cause of concern among the general public, town planners and people working within the system and, with residents' associations and other bodies concerned with the environment and particularly in urban areas. There may, of course, be quite a reasoned debate for an improvement in the operations of An Bord Pleanála in rural Ireland as well. I know some of my colleagues intend contributing on that at a later stage. The reason for this motion in the Seanad is because of the way in which An Bord Pleanála have operated in making their decisions since being incorporated in 1977. I do not believe that An Bord Pleanála issue clear enough statements. They need to be taken away from the secretive approach which seems to prevail in their decision making processes. They give very little accountability in a country where, increasingly, bodies such as An Bord Pleanála are expected to open up to the public the way in which they came to their conclusions. I think An Bord Pleanála must be described as a semi-judicial body. When you experience oral hearings, as I have on very many occasions, and see the planning process going through its stages with debates taking place and well presented cases by both sides, at the end of the day An Bord Pleanála in issuing their decisions should also present the arguments and considerations that were taken into account in arriving at the decisions they took.

We are entering into a stage when the whole area of freedom of information in this country is becoming topical and when people want to know more about the way in which decisions are arrived at. The planning process has been damaged and reasonable citizens very often suspect the bona fides of An Bord Pleanála when they give very little information, give very little by way of a clear statement as to the considerations that were taken into account.

A reasoned presentation of the subject matter they took into account and a well-balanced judgement on the cases presented to them would auger well for our planning system. I am not suggesting that we should build on the existing planning permission or disallow the planning permissions the board issue, but accompanying their statements they should give a clear explanation for the decisions arrived at.

I have a copy of a recent decision taken, in regard to two and a half acres in Charlemont Street, on 7 December 1984. The decision relating to that development which was one of particular interest to very many on the south side of this city was encapsulated into the following sentence:

Provided the detailed plans and particulars to be lodged for approval are satisfactory, it is considered that the proposed development would not be contrary to the proper planning and development of the area.

I would like, in contrast, to illustrate how this type of decision is taken under the planning system operated in neighbouring countries such as Britain. I mention a particular application in Newbridge in the Iswell Borough Council. We are talking here of an application for the change of use to include 15 gaming machines operating on the premises. In the course of the explanation accompanying the decision the Secretary of State for the Environment said:

From my inspection of the site and its surroundings I found that although the cafe is situated within a commercial frontage the immediate adjoining areas to the north and south are predominately residential and that the high street to the west of the site is also mainly residential in character. It seems in such an area residents can reasonably expect periods of quiet enjoyment outside normal working hours. It is unfortunately a characteristic of amusement arcades and other establishments with gaming machines that they attract a noisy youthful element which at present tends to create a level of disturbance. I consider it is necessary to ensure that these activities do not occur at times when they would result in a serious loss of amenity for nearby residents. I note that another inspector came to a similar view in considering the relaxation of a similar condition in respect of premises to the rear of the cafe which are planned to operate as an amusement arcade.

I just quote that to show the contrast between the extraordinarily brief decisions that are given by An Bord Pleanála frequently and the more elaborate decision or certainly explanation accompanying decisions taken elsewhere. I wonder, in an atmosphere where there can be considerable gains or losses by the granting of planning permission for those whose property adjoins, why we have such a strict approach by An Bord Pleanála.

I will quote now from a recent annual report of An Bord Pleanála. I am speaking here predominantly, of course, of the city and county of Dublin.

The report stated:

The vast majority of appeals are appeals that arise with the board for permission for the development of land and most of them are made by applicants who have been refused permission by the planning authority.

Very many of these also have been refused on the grounds that they are not within the scope of the development plan and yet we have so frequently, when a development plan states a certain objective, An Bord Pleanála deciding to upturn that plan and not give an explanation as to why they are doing so. They can, as Senators are well aware, decide not to take account of the listing of a house of architectural importance, which in the city of Dublin, for example, could be listed under list 1. They do not have to explain why permission can be given for demolition or for a new building to be constructed in its place. It would be useful, in the general demand for more information and more accountability, that a semi-judicial body like An Bord Pleanála might indicate that they do not really believe that the particular road or street is sufficiently important to be treated under list 1. The unease that mounts in the public mind because of the secrets and aloofness of the approach of An Bord Pleanála only damages the planning system. I hope the motion I have tabled to seek a directive from the Minister for the Environment could achieve an opening up of the process and a process that would then be much better founded and much better respected as a system.

The public are much more aware of their rights in the planning area in recent times. Responsible conservation groups and others who are affected by the decisions of An Bord Pleanála enter a very good case at planning oral hearing. Planning oral hearings are held very frequently, amounting to some 300 or thereabouts per annum. There is plenty of room for a much more open approach by An Bord Pleanála in dealing with these matters to take away the widespread dismay which exists about Dublin city and in large parts of urban Ireland, when the development plan is summarily dismissed by An Bord Pleanála without any explanation as to why that is being done. What I have opened up, by way of discussion, might at least lead those involved in planning the future of our appeals system and of An Bord Pleanála facilities to review where we have got some seven years after establishment. The object of this motion is to accelerate change of this kind and hopefully the Department of the Environment will take an initiative along the lines that were taken some time ago in relation to shopping centre developments, and take it in the good interests of those who are involved in making applications, those who are affected by those applications and by the decision making process.

In relation to opening up the planning system, getting more accountability, arriving at a situation where clear statements would be a matter of course and expected from An Bord Pleanála, something that is missing in the planning process at present, is a vehicle of communication between An Bord Pleanála and the planning authorities through out the country. There is little connection or real communication between them under the present system. It would be entirely acceptable and within the capacity of the Minister for the Environment to ask them to make their decisions and to accompany those decisions with a statement that will have the rollover effect of giving the planning authority and those involved in the creation of development plans some future indication of policy that would flow from An Bord Pleanála in relation to particular issues. It would be within the existing law and taking good town planning criteria into account could not offend the planning system or involve undue delay in dealing with planning appeals. I hope that the Minister in responding will be able to give a positive answer to what I believe is contained in the law and is there very clearly for development. I believe at this stage seven years after the establishment of An Bord Pleanála a review is very necessary.

Mr. Browne

I formally second the motion and I reserve the right to speak later.

Mr. M. O'Toole

May I say at the very outset that we are at a slight disadvantage on this side of the House in connection with the motion which relates to an accompanying document relating to good town planning. In 1983 the then Government chose not just to allow the expiry of the existing board but immediately to terminate that board and reconstitute it with what we thought would be a new Bord Pleanála that would be infallible.

I realise the urgency of this motion put down by Senator Alexis FitzGerald and his colleagues. I agree that a sufficient amount of explanatory documentation does not come with either the failure of the appeal or the granting of it. Statistical documentation should follow with the decision. It puts beyond all shadow of doubt if you get a detailed reply from An Bord Pleanála why a particular application has been refused or granted. The kernel of the motion is that sufficient evidence does not come from An Bord Pleanála. I have to agree, that, in order to justify a refusal, sufficient evidence must accompany that refusal to the applicant, whether it is for one particular house or a scheme of houses. That is very necessary and I see the merit in it.

We have not at our disposal sufficient evidence of the performance of this new board. It has not speeded up the time lag once the appeal goes to An Bord Pleanála and the time of the decision. When the debate went through the Dáil and Seanad the reason for the urgency was the backlog of appeals at that time. In 1981 we had 1,824 appeals outstanding as against 3,595 in 1983. One of the good reasons given was that that time lag would be shortened considerably as a result of the new An Bord Pleanála. That has not happened. I know that at that time additional professional staff were recruited to give a greater output. As they are a new board we were hopeful at that time, according to all the projections that the Minister, Deputy Quinn, made on that occasion, that great things would happen and that there would be shorter periods for appeal. I do not think that has happened, even with the additional professional staff. If a planning appeal materially contravened the county development plan, an oral hearing was guaranteed on that occasion. I hope that is happening.

I go along with the motion whereby sufficient evidence should be given. That is something everybody would welcome. I see no objection to it. I would like to have an in-depth examination of the performance of this new board before I would even try to consider it. For that reason I will not comment further only to say that I welcome an in-depth report with every planning appeal, whether it be granted or refused. It would give guidelines for future planning applications and it would indicate the trend of the thinking of this new board for further development in a particular county or indeed in the country as a whole.

Senator Alexis FitzGerald may have been thinking of the greater Dublin area rather than the rural area when he and the people on the other side of the House put down the motion. Good town planning reasons would indicate that it was more for the urban area than the rural. Whether it be for urban or rural, it is important that the people who go to the expense of trying to develop should not be turned down. Much finance has to be put up in order to submit any planning application since the new charges were brought into being. For that reason it would behove the planning authority to give substantial statistical evidence as to why the refusals were made. I see nothing wrong with what is before us here this evening. I look forward to hearing the Minister's views on the motion.

Minister of State at the Department of the Environment (Mr. F. O'Brien)

The motion seeks to impose an additional duty on An Bord Pleanála by requiring it to supply a statement with each appeal decision setting out the considerations taken into account in arriving at a particular decision. The motion seeks to achieve this end by requiring the Minister to issue a directive to the board in accordance with the provisions of section 6 of the 1976 Act. That section was, in fact, repealed in 1982 and it is section 7 of the 1982 Act which now enables the Minister to issue general directives as to planning and development to both planning authorities and An Bord Pleanála. However, I must emphasise that such directives may only be given "as to policy in relation to planning and development", to quote the words used in section 7. I am advised that a directive of the kind referred to in the motion could not be regarded as a policy matter for the purposes of section 7. Such a directive would relate to procedure rather than policy. In the circumstances the issue of a directive under section 7 of the 1982 Act, as sought by the motion, would not be lawful, quite apart from any consideration of whether or not there is a need for An Bord Pleanála to provide more elaborate statements as to the basis for planning decisions.

Senators will be aware that the 1983 Planning Act brought about considerable changes in the planning appeals system. Under section 4 (1) of that Act it is the duty of An Bord Pleanála to ensure that planning appeals are dealt with as quickly as possible. To this end the board are required to carry out reviews of their organisation and of their systems and procedures. The Act provides that the Minister may direct that such reviews be carried out and that, after consultation with the board as to the results of the review, he may give directions to the board in relation to matters which were the subject of the review.

It could be argued that the type of directive envisaged in the motion could be given under section 4 of the 1983 Act and I have, therefore, considered the terms of the motion in this context also. However, as I have already explained, the Planning Acts specifically require the board to provide a statement specifying the reasons for each decision. I do not think that it is legally open to me to give a directive to the board which would have the effect of expanding or supplementing the functions and duties already given in specific terms to the board by section 26 (8) of the 1963 Planning Act, as amended.

I understand from the board that it is their practice to include in each order conveying a decision a statement as to the reasons for that decision and that this statement, while concise, is as comprehensive as the board think reasonable in the circumstances of the case. Where conditions are attached to a grant of permission the board also give reasons for these conditions, as is required by the Acts.

In dealing with planning appeals the board's decisions must be made by reference to the statutory criteria, namely "the proper planning and development of the area and the provisions of the relevant development plan" and each decision order must necessarily reflect this position. The practice currently followed by the board, as I have outlined it, has been followed since their establishment in 1977. I might add that in dealing with appeals the board provide all of the parties to an appeal with copies of all submission made to them. Moreover, the board are precluded from taking account of new issues unless these are brought to the notice of the parties. Consequently, all of the parties should be fully aware of the issues taken into account by the board in each case in their determination of an appeal.

The drafting of more elaborate statements as to the basis of planning decisions would place a significant additional burden on the planning appeals machinery and could add considerably to the time taken to deal with appeals. The imposition of any additional duty on the board which would add to the time taken to deal with appeals would be unacceptable at a time when there continues to be a demand for the time taken to determine appeals to be reduced. I am not convinced that the provision of a statement giving a more detailed account of the consideration which led to each decision could be justified if, as seems inevitable, the additional work involved would adversely affect the output of decisions. I have doubts also about the usefulness to interested parties of more elaborate statements of reasons, etc. in many cases.

Senators will be familiar with the report of the Joint Committee on Building Land which was published in June of this year. An appendix to the report contains counsel's opinion on aspects of the compulsory purchase code and, in particular, on the question of whether arbitrators should in determining compensation be required to publish the reasoning, arguments, etc., on which their valuations are based.

I should like to quote from the counsel's opinion:

Whilst there is something to be said for this proposal, it appears to me that the disadvantages of it far outweigh the advantages which might be achieved. As it is not intended that any formal binding precedent should be created by an arbitrator's decision, the recording of it and the necessity for reasons to be stated cannot be of any great value. The disadvantages, however, are, in my view, legion. Under the present discipline, an arbitrator is not required to state reasons. The rights of appeal or of judicial review are very limited. If the arbitrator is required to state reasons, then it is, in my view, inevitable that the number of appeals to the High Court or applications for judicial review will increase enormously. In other words, a whole new area of case law will be built up by people attacking the findings of arbitrators in the courts. This in turn will lead to even further delay in an area where attempts should be made to minimise rather than increase the already slow and cumbersome procedures. From a practical point of view, therefore, I would be against requiring arbitrators to set forth the reasoning on which their valuations are based.

This has to do with CPOs and reasons given and he is stating the reasons and the delays that can occur in such areas which also could happen within the whole planning area. That is the reason I quote it and it is worth quoting here.

It seems to me that the reasoning here applies equally to the planning appeals procedure. The last thing anybody would want, I am sure, would be an enormous increase in the number of planning appeal decisions being questioned in the High Court. This would be a retrograde step for the planning appeals system. It could seriously undermine the position of An Bord Pleanála, call into question its authority as the final arbiter on planning issues and add considerably to the work of the board.

Were the board to give more elaborate reasons in particular cases it is quite likely that the board would imply, or suggest, types of development which might be acceptable. This could be regarded by planning authorities as prejudicing their statutory rights and duties to deal with development proposals on their merits in the first instance. There has been at least one controversial case in which, under existing arrangements, a statement of reasons for refusal was construed by a planning authority as giving advice to a developer as to the type of development which would obtain planning permission. The planning authority expressed grave concern about this at the time and were of the view that the board had acted outside of its statutory functions. I have no doubt but that this kind of situation could become a regular occurrence if there were to be major changes in the present arrangements regarding reasons for decisions.

Much concern has been expressed in recent years that there should be no avoidable delays in the planning appeals process in view of the impact which such delays can have on construction costs and on job creation. Indeed, the upward trend in the number of appeals on hands during 1982 and 1983 gave rise to criticism of the operations of the board. The number of appeals on hands peaked at 3,595 in May 1983. I am pleased to say that since the new board came into office on 20 March 1984 there has been a reduction in the number of appeals on hands from 2,354 to 1,121 at the end of September 1985, representing a reduction of approximately 52 per cent. This is the lowest number on hands since the establishment of the appeals board and for many years before that. I am also pleased that special efforts have been made by the board to tackle the older cases. In September 1984 almost 28 per cent of cases were on hands for nine months and over. In September 1985 the position had improved to the extent that only 7 per cent of cases were on hands for nine months or more.

Clearly it illustrates the work of this board, the way they tackled their job and the reasons why changes had to be made. In my view the board must be complimented on the way they have gone about it, on the way they have restructured staff and got their own inspectors. That is an ongoing situation and I would see even further improvement. It is a clear indication of what has happened over a short time and of the changes that had to be made.

Senators will, I know, be glad to hear of these improvements in the appeals position and would not wish to impose additional administrative procedures on the board which could give rise to new delays. I am satisfied that the board are carrying out their statutory duty to ensure that appeals are dealt with as quickly as possible. In addition, I am satisfied that the board generally provide adequate reasons for decisions taken.

Reluctantly, I must say that in the circumstances I cannot accept the motion. I will, however, draw the attention of the board to the points made in the debate and invite them to consider whether any improvement could be made in their current practices and procedures to take account of the points made by Senators. I think that is the way to do it. The board is an independent body. The Minister can talk about policy, but if he is going to invade their territory and lay down rules from time to time in my view that is taking away from their independence. That is something that we should be careful about. I have to stress again that this board have done a great job. They are a very enlightened board and in the short time of their existence certainly as Minister for State at the Department of the Environment I am very happy with the way they operate. I would not like to see any impediments placed on them.

I have clearly indicated the difference in the figures and the way they have gone about their job. That is basically what we all want to see. People talk about accountability. When Ministers of the Environment had the responsibility of determining appeals one could say there was accountability to the House. But people outside the House and a number of other people said it should be taken away from the politicians and given to an independent board. My view about that is that you cannot have the best of all worlds. The system that operates now is in the interest of everybody, particularly in the interest of people who develop, conservationists and all of these people. I will convey to the board the remarks made here in relation to this motion. I will leave it to the board to decide to do what they feel would be in the best interests of everybody.

Mr. Browne

At the outset I want to make it quite clear that I have no axe to grind with An Bord Pleanála. As far as I am concerned — and Senator O'Toole will be glad to hear this — everyone of them could be a card-carrying member of Fianna Fáil. I have nothing whatsoever to do with that. I am very concerned with a lot of upset that has been caused by some of their decisions. I think much of the Minister's reply, from my point of view, is of no relevance whatsoever to this motion. As one of the people from the country — and I differ with Senator O'Toole on this — I can see serious problems arising for us. We sit down, as every county council does down the country, and draw up a five-year plan. We go to great trouble drawing up this five-year plan. We decide what certain areas are residential, industrial or whatever they may be. We also decide after great discussion what size plot of land will be used for housing. I will give three examples why this has bugged me and why I think that there should be no great difficulty in getting An Bord Pleanála to treat us as if we had something to offer and as if we knew something about our own plans or else if, they think we are the gobdaws they treat us as, they should have enough courage to write that down.

We in Carlow, in our five year plan decided that one third of an acre is sufficient for a house. One person applied for five houses in a two-and-a-half-acre field. It was not exactly two-and-a-half acres, but five sites averaged close enough to a half-acre, well over our requirement. He was given outline planning permission. Someone objected and an appeal came in and An Bord Pleanála wrote back partly upholding and partly not upholding the appeal. They allowed him to build two houses. Our plan says one third of an acre; they say two houses on 2½ acres so, out of the blue, An Bord Pleanála decide for us as far as they are concerned something over an acre is required for housing in Carlow in that area. They give no explanation. The Minister mentioned that they give a short explanation. In my memory, and I may be wrong, the only reason they gave is "in the interest of good planning". I think that is their reply when they give an answer.

How do we stand? How do our engineers stand if we decide one-third of an acre is sufficient for housing in Carlow and An Bord Pleanála tell us it is an acre plus a bit? They give no explanation. Are they saying we are crackers to think that one-third of an acre is enough? Or, are we entitled to think they are crackers in this day and age to think that an acre is required for a house? Will we have any land left after a while if this is the standard they want?

We had a situation where an appeal was made against windows overlooking a house. From my point of view, it was either right or wrong: either privacy was invaded or it was not. I think it was three windows that were involved. They decided they would allow one window. So you can have your privacy invaded by one window but three is too much, and no explanation. You finish up saying that you do not know. One of our oldest roads in Carlow, where people had been living for I do not know how many years — some of the families that are there at the moment are retired — is strictly residential. A religious sect applied for an assembly hall. Officially it was a residential area. The application was turned down by the council. The applicants appealed: it was allowed. Now there is no parking space there; it is not an area where you would expect a group of people to be allowed assemble like that on a regular basis. Maybe An Bord Pleanála are perfectly right, but I think we are entitled to know why they can move in and give a decision like that. They should let us know why.

I do not accept at all what the Minister has said that it would hold up the hearing of appeals. If they come down to Carlow, they can look at a two-and-a-half acre field and decide that there will be two houses rather than five. I do not think it delays the plan three minutes when they go back up and say that the land is so bad in Carlow or the land is so good in Carlow that they need an acre. I do not see why they cannot give an explanation for allowing one window instead of three nor do I see at all why they can overrule a residentially zoned area. They can ignore every plan that you draw up at county council level; they can do what they like.

I am all for the fact that they are above politics provided they treat us, when dealing with planning appeals and permissions, as if we had a modicum of intelligence. If they are answerable to nobody that puts all the more onus on them. At least the Minister here was answerable. We could come in and raise questions as to why such a thing happened and why he overruled a development plan. But we cannot do anything about it now. You could take the extreme example: suppose everyone in An Bord Pleanála thought that bull-fighting was the greatest sport of all times, and an application came in and they decided O'Connell Street was the ideal place for it. They are answerable to nobody. No Minister can call them in and say "You cannot do this."

This is serious. I am not concerned with what views are held by the people who comprise the board. I am sure they are all experts in their own fields; I have no doubt about that. I am not concerned with delays. I would be very concerned if there were delays but I am not concerned whether the backlog has been lowered or increased. That has nothing to do with this motion here. The motion is simply to ensure that they would append a simple explanatory note saying "We are overruling your five-year development plan because..." At least we can say: "We are out because we are making rules here that they could not uphold. Therefore we will have to change them." As of now they simply make a decision. We are down the country and people ask us how certain persons, got planning permission. You say: "An Bord Pleanála." The people down the country think it is politics. They still think it is a question of someone having political influence and that is the end of it, or something else, and you can get any permission you like. When you do not get an explanation you cannot say anything.

I must say I am disappointed that the Minister cannot tell them to do this. I am sure my colleagues here in the city have problems with planning also but I do not accept that we have no problems down the country. I would like the Minister to explain to An Bord Pleanála that we would like to know why and I do not think they need spend any longer than five minutes telling us why they decided against a decision already made.

Mr. Lynch

I certainly would welcome a discussion on any motion in relation to planning. My one regret is indeed that the motion as I see it, was not given more scope and broadened. I would like to differ with the Minister regarding his reply. The motion, as I read it, is not seeking additional information. It is only seeking explanatory information and to say that that would put an extra workload on the board sounds ridiculous to me. The people are entitled to this information.

An Bord Pleanála do give some planning reasons in their decisions. I have three decisions here with me. One is a permission and there is a reason given. The reason is: "in the interest of proper planning and development in the area"— if we call that a reason. I have a refusal and there is a reason given for the refusal: "poor line". I have a refusal without giving reasons at all. They apparently do give reasons except on section 19 of the 1983 Act. That is the Act which applies where conditions in relation to any planning permission or refusal are appealed to An Bord. At one stage if one appealed those conditions one was in danger of losing the grant of permission entirely. An Act was brought in — I do not know whether it was in 1982 — which gave the applicant permission to appeal the condition without being in danger of having the grant of permission rescinded.

What does the motion mean? This motion, as I see it, means that we should flush out the reasons because the more reasons you give the more opportunities you give to lawyers and architects to get court decisions which would in fact void a Bord Pleanála decision. That would clear the way for compensation claims. There is a lot in this motion.

There are reasons given by local authorities and many of us have them nearly off by heart. The reasons An Bord Pleanála give are copies of the reasons given by the local authorities. There are non-compensatable reasons given such as a traffic hazard. If a county council or An Bord Pleanála refuse to grant a permission because a building would constitute a traffic hazard, that would probably be right and there could not be compensation claims. I would consider compensation justified where the reason given would be in conflict with amenities in an area. Many people are not aware of this. This could create a case for a claim for compensation.

I have reasons to be a bit perturbed with regard to oral hearings. I know of one case where an appeal was submitted to An Bord against a decision given by the local authority. This man, to justify his appeal, requested an oral hearing and submitted his fee. I inquired today as to when this man's oral hearing would take place and I was told that notice had gone out to him stating that he would not be granted an oral hearing. If a person pays a fee to have an oral hearing and feels there are good and justifiable grounds for looking for that hearing, he or she is entitled to get it. This man is not being granted the oral hearing and his fee is being impounded. There is a lot of money and time involved in planning.

This brings me to the question of why do we, as county councillors and as councils, draw up county development plans. We, as local authority representatives, are the planning authority. At the same time we know we are not. We draw up a county development plan and agree to abide by that plan. We have conflict arising in several different forms. We have cases where farmers with 40 acres find their sons are refused permission to build on a site on their own land. Yet we specifically state that a farmer is entitled to give a site to his son and a son is entitled to build a house on the family farm. This applies in County Meath, and I am sure it applies right across the board. An appeal to An Bord Pleanála sometimes bears fruit, but not always.

The Department of the Environment issued a booklet on planning some time ago. It was called Development Control; Advice and Guidelines. Everybody welcomed that booklet — architects, councillors and, indeed, the officials of the local authorities. I would like the Minister to let this House know if he has given or will give a clear directive to An Bord Pleanála to implement what is in this book and to go back down the line and give a clear directive to the local authorities to implement it. Many county councillors, and especially the people who are refused planning permissions, are not aware of what is in this book until it is too late. They are the suffers. The public should know where they stand. We, as local authority members and Members of the Oireachtas, should know where we stand in relation to planning.

I am not in any way ridiculing An Bord Pleanála. When I make inquiries I get the height of courtesy. They are probably doing a very good job. I know when An Bord Pleanála were set up every aspiring Minister for the Environment heaved a sigh of relief — and quite rightly. It was wrong to have it in the power of any one Minister to grant or refuse permission. He certainly could not, in fairness to him even with all the advice in the world make decisions for the whole 26 counties of this island. Many wrong decisions were made, and indeed we have in our own party the evils of bad planning where a Minister made the wrong decisions at the wrong time. He put the cart before the horse — large housing developments where we had not the services provided and are still not provided. The people who bought those houses and the local public representatives are suffering ever since from those wrong decisions.

The Minister side-stepped the issue that is involved in this motion in his reply. Perhaps he will elaborate further before the debate is ended.

Mr. Howard

I intend to adhere to the notes I have made and the view that I held when I came into the Chamber this evening in relation to this motion. I support it, not because of some of the arguments that have been made but because I believe that there is one fundamental principle involved here, and that is whether we stand for open administration or not.

The motion calls on the Minister for the Environment to use or avail of the powers that are provided or available to him under the Planning Acts to direct An Bord Pleanála to give a more expanded set of reasons for their decisions on either grants or refusals. Basically, I do not think there is a lot at issue here. Certain reasons are given at present, but are given in a very restricted form. What the motion is requesting, and those of us who are supporting the motion are requesting, is that a more extended set of reasons would be given in each case. I do not accept that that is going to cause an added burden because in the making of the decision within An Bord Pleanála somebody has compiled the extended reasons on which that decision is based. Therefore, it is only a simple question of copying, as it were, these extended reasons on which the decision within the board was based or, perhaps, even take some extracts from them. I see no great difficulty there. I do not regard it as an added burden. The only body for whom it would create a burden is the typist or such official within An Bord Pleanála.

Furthermore, from listening to the debate so far, I have less to complain about as a local representative in my own county in regard to An Bord Pleanála decisions than perhaps my colleagues who have spoken have. By and large, I am satisfied with the decisions that I have seen emerging from An Bord Pleanála. I feel a justification, and I support the call for An Bord Pleanála to expand on the reasons for these decisions. It is a reasonable request and it is a necessary request. I know that the Minister has taken a certain line here. But is it not the essence of parliamentary debate that all of us, including the Minister, are open to argument in a situation like that? For that reason I want to argue the following points. While I have the impression that An Bord Pleanála would not welcome the issuing or expanding of their reasons, I find it difficult to accept that. I believe that they should welcome the opportunity to give their reasons for the valid decisions they have taken in so many cases. I have no need to criticise the decisions arrived at by An Bord Pleanála in relation to my own county council area. I believe that the majority of those decisions were right decisions.

There is one element that was prominent in the making of these decisions and that was that common sense appeared to be applied in all cases. In any aspect of planning there is no element more important than that of common sense. This is in relation to the majority of cases. There are a minority of cases where it is not easy to accept the logic behind the decisions that have been made. Because of this I support the motion and its request that An Bord Pleanála should outline in greater detail the logic behind these particular decisions. I recognise that I cannot pick and choose the decisions on which I require an elaborated explanation. Therefore I have to go for the choice of looking for an expanded reason for all decisions.

It must be understood that no case goes to An Bord Pleanála without having first been discussed and decided within the local authority. I am not aware of the position within other counties but as far as my own county is concerned we have a satisfactory arrangement between the elected representatives and the planning officials. By and large this has worked very successfully. We have always found a willingness on the part of the planning officials within the county to meet the reasonable wishes of the elected representatives.

Reference was made earlier to the fact that responsible conservation groups have no input to certain planning appeals. The majority of planning appeals that I have been associated with have been third party appeals. While I accept that some of the conservationist groups are responsible in their attitude, my experience by and large is that they are few and far between. What we have are individuals or individuals composing themselves into groups. They may well be well-meaning people but I will go as far as to say that in my judgement they have a warped concept of what is good for society. In their system of priority misplaced concern for birds, animals, fish, trees, bushes and indeed for the rocky wasteland of the Burren, will assume more importance that the legitimate housing needs of a local human family. Equally, there are other people who are well-housed themselves and who have no hesitation whatsoever in using planning legislation to frustrate the legitimate housing needs and in some cases urgent needs of their neighbours. I should like to know what the impact of both these groups which I have described is in the making of An Bord Pleanála decisions. Therefore, the publication of expanded reasons by An Bord Pleanála would give me and others the opportunity to measure what impact, if any, these groups have. The publication of expanded reasons will enable all of us — the Government, the Minister, Oireachtas Members and the general public — to see if there is any changing trend in the type of decisions emerging from An Bord Pleanála. This is important.

In conclusion, I should like to state that I am concerned about the delay that frivolous objectors within the planning machinery are causing in the building and construction industry. There is no doubt you have frivolous objections that are not sustained even within the appeal process but nonetheless have the effect of slowing down building and construction and so on and they are unsatisfactory. I am very concerned about the impact of the groups I have mentioned and of frivolous objectors on the planning process of An Bord Pleanála. The only way we can be made aware whether this is happening or not is to have expanded reasons advanced by An Bord Pleanála in relation to the decisions which it takes. This will establish if a trend in a particular direction is emerging over a period and give an opportunity to correct this.

I support the motion on the basis that I agree with open administration. I am not for concealment, and I am not suggesting that the Minister is. I am not suggesting that An Bord Pleanála are for concealment; but, nonetheless, this is an aspect of this situation that should be avoided. I appreciate the fact that the Minister says he will ensure that the content of the debate will be brought to the notice of An Bord Pleanála and that he hopes An Bord will respond accordingly. I would like to see it more solid than that. I would hope that when the observations of those who are contributing to the debate are made the Minister will be encouraged to go back and say to An Bord Pleanála that there is need for open administration and there is need for expanded reasons. Nobody is questioning the validity of the decisions. What must be avoided at all stages and in all circumstances is endorsing concealment of decisions which affect so many. I support the motion.

Mr. Lanigan

I support the motion. I support the objectives behind it. I was not sure initially about the reasons it was put down, but having listened to the debate and to the Minister's reply I can see that it makes very good sense. The Minister in his reply stated that if the motion went through there would be further delays in giving decisions by An Bord Pleanála. The board in making up their own mind have to make a decision. Basically all that is being asked in this instance is that the reasons should be sent back to the local authority and to the people who have appealed against the decision in the first place.

I object to the operation of An Bord Pleanála in general. There should be no need for this board. If local authorities throughout the country were doing their job properly, why should any other body come into the planning process? In general local authorities are doing a good job in organising the planning of the environment of the area in which they live. They are doing an excellent job in progressing proper planning in line with the legislation under which they operate. One of the biggest problems we, as members of local authorities, have is that sometimes we feel we are being inhibited by planning regulations which are enforced by our local planning officials in what would be considered to be a reasonable development programme in our own counties. When you look at counties that have a good development programme and in which there is a reasonable liaison between the officials and the members you will see that development goes forward. When a county council makes a decision or when a corporation make a decision on planning in general it is made under the City Development Act or the County Development Plan and it is a reasonable plan. Ninety-eight per cent of the appeals which have gone to An Bord Pleanála from Kilkenny have been rejected. In other words, the decisions made at local level were upheld. Basically what the Minister is saying is that in Kilkenny on the two per cent that have been changed releasing the reasons would cause problems. I do not understand the logic of it.

When Kilkenny Corporation receive a planning application it is dealt with by the officials and by the members of the local authority and a decision is made by the officials and the members that the planning application should go forward in a certain way. The county manager has the final say. When the county manager puts his signature on a particular planning application and either rejects it or accepts it he has to put down the reasons why he objects to it or why it is acceptable. If it is acceptable he will put down a list of conditions under which it is acceptable. If somebody wants to appeal against that decision it goes to An Bord Pleanála. All the objections are stated and all the conditions are stated. Why cannot they then, when they are making a decision, just list out the reasons in detail. I cannot understand how it could extend the length of time which planning appeals would be held up in that particular Department.

In many counties we see the officials and the councillors working in closer harmony to protect the environment in which they live. One of the problems we have is that people in An Bord Pleanála can look at the situation, visit any part of the country and have reasonable argument on both sides, but they do not live in the area; they do not have to live with the on-going situation in a particular county. I could expand on that but all I want to say is that there is a very good case made in this motion for just offering a small piece of information. People in the Department or in An Bord Pleanála must realise that if they listed the reasons behind certain decisions possible changes might be made in planning applications. However, if the board are working to the county or city development plan, they should have nothing to fear.

All we are looking for and I presume all the proposer of the motion is looking for is that an orderly development should take place and that if there is a problem with An Bord Pleanála and if the board give a decision on it, whether it is good or bad, that they list out the reasons why that decision has been made. It just means that an addendum has to be made listing the reasons why the decision was made giving them to all the people concerned instead of just hiding them in a filing cabinet in the Department. There is no reason for any delay.

Mr. Fitzsimons

I am glad to get an opportunity to support the motion and to urge the Minister to issue those directives in so far as it is possible to do so. Planning is a very important area. Great strides have been made since 1963 when the Act was introduced. Of necessity the planning laws are very complex. Few of us would pretend to be familiar with all of them. In this situation I must also say that the board have a very difficult role to play. I would join with the other Members in paying a tribute to the work of the board. There is no doubt that everybody regards them as being fair and impartial and above party political issues, as has already been pointed out. Section 6 of the 1976 Act to which this motion refers states:

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

But in the previous section, I will quote section 5 (1):

The Board shall, so far as may in the opinion of the Board be necessary for the performance of its functions, keep itself informed of the policies and objectives for the time being of the Minister, planning authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and development (including the preservation and development of amenities) of cities, towns or other areas, whether urban or rural.

Already there is an onus on the board to be familiar with the objectives of the Minister. Subsection (4) of section 6 states:

Where the Minister gives a directive under this section, the following provisions shall apply, namely — (a) as soon as may be the Minister shall cause a copy of the directive to be laid before each House of the Oireachtas, (b) the directive should be published in the Iris Oifigiúil, and (c) the Minister shall cause a copy of the directive to be sent to each planning authority.

It is a rather cumbersome operation where this applies. There are other sections which I would like to quote but I will leave it until later. By and large the situation is that we have a five year development plan which is decided on by the elected representatives. This is a reserved function and it is a very important one. It gives very wide powers to the elected representatives, even to enter into other spheres and into competition with private interests. It is the function of the officials to administer this scheme which is to be decided on by the public representatives. While somebody has stated here that in some situations the initiation of a scheme is simply a line drawn by an engineer on a map, nevertheless it is the sole function of elected representatives and they also have the right to amend that plan at any time during that five years. I presume there is uniformity with regard to the plan and with regard to the guidelines which operate over the whole country. Some years ago the Minister issued guidelines in particular with regard to primary roads, the sub-division of cottages and with the building of houses for farmers' sons on primary roads. I presume there is a general standard which applies. With regard to the decisions by An Bord Pleanála, it is my feeling that the reasons given by the board are in most cases adequate. That is my experience. I haphazardly took two decisions which were made by An Bord Pleanála and I would like to quote from them. One of them stated:

The decision was made for the reasons set out in the schedule hereto which is: the proposed development would give rise to a serious traffic hazard as the site is situated in a rural area along a national secondary route where the maximum speed limit applies and the traffic movements generated by the development would interfere with the safety carrying capacity for this route. The development would accordingly be contrary to the proper planning and development of the area.

That is number one. In number two the schedule was as follows:

(1) Taken in conjunction with existing and permitted development in the area the proposed development would give rise to an excessive density of houses in a rural area which would detract from its rural character and would lead to demands for uneconomic provision of public services and community facilities.

(2) The proposed development would be prejudical to public health because it would result in an excessive concentration of septic tanks in a limited area.

Personally I do not think that to give any more details would be of any greater help. The reasons given there are precise and they are reasonable and they are acceptable. While I agree with the comments which have been made by some of the Senators already, I do not see what advantage there would be in expanding that into a long document. The reasons given there are clear and precise and they are acceptable.

Once the decision is made the decision is final. The board accepted from the very beginning that it was clear they had to give the reasons and they have done so. There has always been a lobby to publish or make public the inspectors' reports. As far as I can recall there were instances where the courts were asked to make these reports available. I presume that that is what Senator FitzGerald referred to in the other country, the publication of the complete report. As I have said, the decision once it is made is final and binding. The reasons for a decision by An Bord Pleanála are not always the same reasons as the reasons set out by the planning authority. They can differ. In essence I feel that that is what the motion is looking for, to publish the report of the inspector.

Senator FitzGerald referred to oral hearings. I have experience of an oral hearing and of making appeals in the ordinary way and I have no complaint whatever regarding the appeals in which I was involved. They were considered fully and fairly. With regard to the listed buildings I would agree with Senator FitzGerald that something could be done in this area. I made an appeal here not very long ago for the listing of thatched houses. I again make that appeal.

We have a heritage of beautiful thatched houses which can never be replaced; they belong to a period in time. They are part of the environment. It is very expensive to maintain them and I would ask the Minister, as I have before, to preserve the best of those listed buildings and make grants available.

With regard to what the Minister has said, I agree that all parties are made fully aware of the submissions of the other party. There is no secrecy in this regard. If there is a communication between one party and the board a copy of a letter is sent to the other. Perhaps if more detailed information were given there would be more appeals to the courts from the point of view of wrong conclusions or an issue of facts. Nevertheless as I see it the position is that the decision of the board is final and binding and while some people may be aggrieved with the decision it does not make it any more palatable to have a lengthy document of explanation.

Senator Browne spoke of a number of examples from Carlow. They are examples that would apply to many other places and even to my own county of Meath. He referred to the decision by the Carlow County Council to permit one-third of an acre as sufficient for a house. I do not think any planning authority or any local authority are competent to decide on the area of land that would be suitable for a house. This is determined by the recommendations set out by the Institute for Industrial Research and Standards where septic tanks are concerned and I understand from Senator Browne that septic tanks were involved in this instance. The decision as to the area of land is determined by the percolation test, in other words, the soakage of the particular area. It may be necessary according to that test to confine a house to an acre. It may be necessary to reject the site in many instances if it does not pass the test. While I agree with him on a local and personal level, it may seem unfair to confine two houses to two and a half acres; nevertheless while he says no explanation was given by An Bord Planála, I presume that this would be the reason and in my view it is a legitimate and correct reason. Throughout the country and indeed over a considerable part of County Meath unfortunately we have pollution on a scale of great concern to the county.

Professor Dooge

On a point of order and as nobody else is offering and I take it you will be calling the proposer of the motion, I would suggest, rather than split his speech and break into Private Members' Time next week, the House might consider allowing Senator Alexis FitzGerald to use his full 15 minutes tonight.

An Cathaoirleach

Is that agreed?

Agreed.

Mr. FitzGerald

I am disappointed by the response from the Minister of State at the Department of the Environment in relation to this motion. What I sought here today was not a discussion on the issuing of the inspector's report, as Senator Fitzsimons mentioned a moment ago, but to move along the direction of giving a reasoned explanation or a presentation of how An Bord Pleanála arrived at their decision. I cannot believe that a statement of that kind could not be drafted with minimal extra workload on those engaged in deciding planning appeals in An Bord Pleanála, thus giving the general public a much greater understanding. As I said earlier, let us begin a new method of communication by way of policy and understanding of contentious planning decisions and the way in which the board is reacting to them, and give the planning authority a real opportunity of understanding the basis behind the decision, and perhaps incorporating them, as a throughput of what is being done by An Bord Pleanála, into the revision of development plans.

The reasoning behind all this is all the more urgent in cases where the development itself is being upset by An Bord Pleanála's decision. In those cases if we were to win one simple little improvement in communications between An Bord Pleanála and the various county and city planning authorities in putting together a package of understanding between both ends in the planning process it should particularly be seen to apply to decisions taken which reverse development plans that have been arrived at after wide consultation, and not just with members of the corporation but with the professional planners who have worked them up and have gone through a process of public display and have reached a point where a great deal of public acceptance has been given to them.

If An Bord Pleanála decide in their wisdom to overturn a decision taken on that basis, perhaps it can, in instances like that, consider issuing some form of explanation or a presentation of their case such as the Judiciary do and such as a semi-judicial body like An Bord Pleanála should be expected to do. If they were to do that, it would augur well for the planning system and generate more respect for An Bord Pleanála in the way they handle their business.

I hope that the Minister of State at the Department of the Environment, having listened to the debate and having listened to the degree of consensus which is in this House in relation to an improvement in communications between An Bord Pleanála and the planning authorities, particularly in the areas of vexatious appeals — and these vexatious appeals very often lead to considerable argument and debate — would agree that it is reasonable for us to ask here that when conclusions are made the board be seen to openly reflect on the arguments presented and considered in arriving at their decision. I would hope that the Minister will use his good offices to come up informally with some new arrangement which An Bord Pleanála could incorporate into their decision-making process.

I make a particular appeal in relation to situations where the position of the local authorities is not just overturned but where the decisions of the local authority, taken in a statutory way in relation to the development plan, is itself overturned as well. I would hope that the Minister could communicate with those of us who have been interested enough to contribute to this debate on some form of rational new behaviour that An Bord Pleanála could engage in, which, I believe, would be in accordance with the spirit of this country at the moment where there is much greater demand for accountability and much greater expectation of public bodies like An Bord Pleanála opening up their processes to the public. As we are all well aware, we are awaiting the advent of a Freedom of Information Bill. There will be much interest in a debate of that kind in the foreseeable future. Why should we speak so rigidly of the underlying fear of litigation which may ensure from what I am proposing. In other countries such as Britain, as I have illustrated earlier, a report is issued and published regularly. It is a Journal of Planning and Environment Law which gives the cases that have been issued by the Secretary of State to the Environment and gives the very interesting balancing that they have been able to achieve in their system.

I would hope that this debate can at least start a process of rethinking and of reappraisal of the way in which An Bord Pleanála operate. After all, it is now seven years since that board were instituted. In the public mind the decision-making process of An Bord Pleanála is very little different to what was the position when the Minister was responsible for taking planning appeals and for dealing with planning decisions. We could open up quite a new experience for the public by way of letting them know the details of the arguments for and against in a balanced way. I do not think litigation is a major fear. It is not a major fear in Britain. I would hope that something along those lines could be developed in due time by the Minister and that he may be able to report to those Senators interested in (a) tabling this motion and (b) contributing to it tonight.

An Cathaoirleach

Do I interpret from the Senator's remarks that it is his intention to withdraw the motion? Is that agreed?

Motion, by leave, withdrawn.

The Seanad adjourned at 8.10 p.m. until 10.30 a.m. on Thursday, 24 October 1985.