I move amendment No. 1:
In page 5, between lines 2 and 3, to insert the following:
"‘woodland' means an area planted, for commercial purposes, since 1922.".
The amendment clearly defines what is envisaged.
Local Government (Planning and Development) (No. 2) Bill, 1988: Committee and Final Stages.
Section 1 agreed to.
SECTION 2.
The 1963 Planning Act does not provide a definition of "woodlands" although the term occurs in section 45 which deals with tree preservation orders. The absence of an express definition does not appear to have affected the operation of that provision. For this reason I do not believe a special definition of "woodlands" is required in the Bill. I have sought the parliamentary draftsman's advice on this point and he agrees that a definition is unnecessary. I should also point out that English planning legislation uses the term "woodlands" without according it a special definition. This matter was debated in the Dáil at great length but I regret to say I am unable to accept the amendment.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.
I move amendment No. 2:
In page 5, between lines 28 and 29, to insert the following subsection:
"(4) The provisions of this Act shall apply to a claim for compensation made or which has arisen prior to the coming into operation of this Act where no determination has been made as to the sum, if any, payable in respect of such claim.".
It is only right and proper that we insert this subsection in the Bill to extend maximum protection to the taxpayer and to prevent unwarranted claims being made.
Senator Naughten's amendment seeks to apply the provisions of this Bill to any compensation claims arising from the 1963 Act still being processed when this Bill comes into operation. The transitional arrangements of this Bill follow the general principle of section 21 of the Interpretation Act, 1937, that the repeal of the previous statute should not affect any right accrued under that statute, given that the right to planning compensation arises from an adverse planning decision. The provisions of the 1963 Planning Act would apply to any claim arising from a planning decision made before the enactment of the present Bill. The new Act will apply to all claims arising from planning decisions made after this. I should emphasise that planning decision in this context means the final or definitive planning decision. If a decision of a planning authority is under appeal to An Bord Pleanála it is the decision of the board and the date of this decision which will be relevant for planning compensation purposes.
I thank the Minister for his comprehensive reply. However, I still feel that this subsection should be included in the Bill and ask the Minister to give this matter further consideration before Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."
In relation to section 3 (2) it is my understanding that the older rules will continue to be applied in cases involving compulsory purchase orders and purchase notices. If a developer is refused permission by a local authority, is it the case that the developer would proceed in seeking compensation by way of publishing a purchase notice? In other words, he would insist on the local authority purchasing the land under the old valuation rules. It is most unsatisfactory that the older rules would be applied in cases involving CPOs or purchase notices under section 29 of the 1963 Act. Am I correct in saying that?
The Senator is off line. The Bill only deals with question of compensation. The powers to compulsorily purchase land will remain with the local authority concerned. Therefore, the question does not arise.
Will it not be open?
No change will be made. This Bill only deals with the question of compensation. As I said the powers relating to compulsory purchase orders will remain.
While I understand what the Minister is saying, I am not clear as to whether it will still be open to a developer to proceed in seeking compensation by way of publishing a purchase notice, whether he will be able to go to the local authority to insist — as it is they who would have refused him permission to develop — on the purchasing of the land. The purchase notice will be, as the Minister has said published under the old Act.
It will.
That would seem to leave us at square one and not better off. The old compensation rules rather than the new ones will be applied. Why can the purchase notices not be published under the terms of this Bill?
No, the provisions of the Bill will apply to all claims for compensation but let me say that all the provisions the Senator has referred to relating to compulsory purchase orders and so on will remain. All claims for compensation will be dealt with under this Bill. Some Members expressed concern about the Minister of the day having a right to decide if compensation is due to landowners, but I want to make it quite clear there neither I nor the Minister of the day would have the final say on the amount of the compensation to be paid. This would be decided either by agreement or at arbitration as provided for under the 1963 Act. I will be dealing with this matter in a very comprehensive reply.
Question put and agreed to.
Section 4 agreed to.
NEW SECTION.
As amendments Nos. 3 and 7 are related, perhaps we could discuss both amendments together.
I move amendment No. 3:
In page 6, before section 5, to insert the following new section:
"5.—(1) No person shall be entitled to make a claim for compensation who has failed and is still failing—
(a) to fully comply with the conditions of another of previous planning permission,
(b) to provide security for such completion,
(c) to fully comply with a notice served under section 35 of the Principal Act, or
(d) to fully comply with any court order obtained against him arising from a failure to comply with the conditions of another or previous planning permission.
(2) For the purpose of this section a person shall include a company which is a subsidiary of or an associate company of any such person.
(3) For the purpose of this section each local authority shall prepare and maintain a register in respect of all persons who have failed—
(i) to comply with the conditions of another or previous planning permission in connection with the completion of a housing estate,
(ii) to provide security for such completion,
(iii) to comply with a notice served under section 35 of the Principal Act, or
(iv) to comply with any court order obtained against him by a local authority on foot of a planning permission.
(4) A register maintained under this section shall be made available for inspection free of charge by members of the public at all reasonable times.
(5) Upon a person named in the register for failing to comply with planning conditions imposed fully complying with such conditions, such person's name shall be removed from the register in so far as it relates to the particular development in respect of which planning conditions have been complied with.".
We very often come across in cities and towns, cases of developers seeking planning permission and carrying out part of the development but often it is practically impossible to get that development fully completed, with service roadways, footpaths, sewers left half-finished and the developer moving on to seek planning permission elsewhere, perhaps under the name of another company.
Each of us with experience of local authorities finds this situation arising from time to time. It would be grossly unfair that that particular company or individual, or an individual who would have a share in one or other companies which was guilty of those irregularities, could be in a position to claim compensation, without providing security for completing such work. I think it is important that security is put up to complete the work.
Paragraph (c) reads: "To fully comply with a notice served under section 35 of the Planning Act". Again, it would be very important that this provision would be strictly adhered to. Paragraph (d) reads: "To fully comply with any court order obtained against him arising from a failure to comply with the conditions of another or previous planning permission". We have come across cases where developers have failed to comply with the terms of the planning permission, despite numerous requests to do so by the local authority or court proceedings been undertaken. It would be criminal if those people were able to claim compensation without first complying with the terms of planning permission in respect of another development.
Paragraph (2) reads: "For the purpose of this section a person shall include a company which is a subsidiary of or an associated company of any such person". It is equally important that that be enshrined in this legislation. Paragraph (3) reads: "For the purpose of this section each local authority shall prepare and maintain a register in respect of all persons who have failed to comply" with the conditions of another planning permission. The general public should be in a position, if they so wish, to check out if a company or individual, on applying for planning permission, has failed to comply with the conditions of a previous planning application.
As I have stated, very often we have come across cases where this happened. We should take the opportunity in this Bill to ensure that it does not continue to happen. Paragraph 3 (i) reads: "To comply with the conditions of another or previous planning application in connection with the completion of a housing estate", while paragraph (ii) reads: "To provide security for such completion". If security is put up for such completion, or if agreement is reached with the local authority concerned that they would be compensated for completing such that would be reasonable. Paragraph (iv) reads: "To comply with any court order obtained against him by the local authority on foot of planning permission". That clearly specifies what I have in mind in proposing the subsection.
A register should be maintained by the local authority and available for inspection by the general public to establish if a company had failed to comply with the terms of planning permission. Paragraph (5) reads: "Upon a person named in the register for failing to comply with planning conditions imposed fully complying with such conditions, such person's name shall be removed from the register in so far as it relates to the particular development in respect of which planning conditions have been complied with". It is only right and proper that that subsection should be included also.
This is a Bill that has been strengthened by the incorporation of the amendments and suggestions from various sources, so the Minister is obviously willing to consider, as he has normally shown himself to be, amendments that strengthen the legislation. It seems clear to me that this amendment is a good one, particularly from the point of view of the public, of those who have been placed in a situation where they have acquired a house on a housing estate which has not been brought to the proper standard of completion in terms of services, paths, all the things for which the builder is responsible. It would be very galling for people who have been placed in that position by an unscrupulous developer to find they have to stand silently by and witness public moneys being dispersed to an unscrupulous developer who has left a trail of incomplete developments behind him in this area. This is a good amendment. I certainly feel that the principle of it is strong.
If I may nit-pick just slightly, I rather wish there were not two split infinitives in the wording. Perhaps, if it is accepted, the Minister will change it to read "to comply fully" rather than "to fully comply'. It may appear a very small point but the Oireachtas is a place where the properties and niceties of language ought to be observed as far as possible.
They usually are.
They usually are indeed, Senator Honan, and I thank you for your valuable addition which was grammatically phrased as always. It would be a pity if we were to allow legislation through which is ungrammatical. This does not actually alter the sense but there have been occasions when I picked up on one or two things which did have the effect, grammatically, of altering the sense of legislation.
Those days are gone.
Acting Chairman
Senator Norris to continue without interruption.
He thinks he is in university now.
The principal point I wanted to make was, just as a matter of principle, it would be very unfortunate and unfair for people, who have been badly treated by a developer, to be forced to witness public funds being dispersed in a compensation claim to allow them to go on until that first error is expunged. The case was well argued by Senator Naughten.
I support the amendment. It is an extremely important one and I support the remarks made by my colleague, Senator Norris. This is an extremely difficult problem for local authorities who constantly find themselves, in spite of their best endeavours, with unfinished housing estates, and despite provision being made for open spaces no such open spaces are being made available for the enjoyment of the people of the area. Provisions relating to bonds and security have been introduced but in many instances there are unsatisfactory and inadequate in dealing with this very serious complaint.
As members of local authorities are aware, one of the biggest areas of complaint from constituents is that of unfinished estates. If a developer, having failed to complete adequately one development, looks for permission for another development and we try to persuade our planning officials to take into account the fact that he failed to complete adequately a previous development, we are simply told this cannot be done, that we are only allowed to consider the granting of planning permission in the context of the proper planning and development of the area and other extraneous factors, such as the previous record of a developer, simply cannot be taken into account.
This amendment would strengthen the powers of local authority. As has been said, it is extremely galling to see moneys being paid out of the public purse to a developer, who has quite clearly failed to fulfil his obligations, and who has shortchanged the local authority and the community in general. I ask the Minister to consider this amendment very seriously. I think the spirit of the amendment is extremely valuable and I support it.
These amendments seem to relate as much to general considerations of planning enforcement as they do to planning compensation. They provide for a bar on compensation claims by persons who have infringed planning requirements and for refusal of permission without compensation on the grounds that the person involved has been entered on an appeals register by the planning authority. The names of persons would be entered on this register where they have breached certain planning requirements, particularly those relating to the completion of housing estates. The establishment of an appeals register of this kind by an administrative authority has obvious implications for natural justice, particularly in the area of personal rights. As the amendment stands, a person contravening certain planning requirements would over and above any of the penalties imposed by the courts have to suffer the stigma of entry on a register in addition to being debarred from access to planning compensation which would remain available to others.
As I have said, I see these amendments as being concerned primarily with the enforcement of the planning laws. While I appreciate the concern expressed by the Senators that planning requirements should be adequately enforced and should be seen to be observed, I do not believe that this Bill is an appropriate context in which to address enforcement issues. However I will be examining the whole question of enforcement when the Bill has been enacted and I will give careful consideration to the views which the Senators have expressed.
When I came to the Department a year ago, the Minister and I asked local authorities to take certain precuations in regard to unplanned estates; there are ways and means open to them to do that. I am glad to say that in recent times the situation has improved dramatically. I admit, there was some laxity and estates should have been looked after in a better way by the local authority concerned. Recently I have had complaints that the conditions attaching to planning permission for the erection of private housing estates have been very strict. In other words, strict conditions were laid down and had to be adhered to in regard to bonding and other financial arrangements. I agree that that should be the case. There has been a vast improvement in this connection. I am examining this matter and when the Bill comes into operation we will be again consulting with all local authorities because they have the necessary powers to tighten up procedure.
I would not like to go overboard on this. We must strike a balance. Common sense must prevail. Some housing estates in the past left a lot to be desired but there has been a vast improvement. I would not like to penalise any person. If a company is responsible there will be a remedy under company law. I may be straying a bit here, a Chathaoirligh. Forgive me, if I am. Under company law this can be attended to. I will keep the views of Senators in mind and I fully appreciate them.
I accept the Minister's reply. I quite understand Senator Naughten's concern because we have all had the experience in our constituencies of a contractor moving and leaving work to be done. Senator Howard will be familiar with the kind of housing estates I am now talking about. I think it is too strong to ask the Minister to insert an amendment to section 5 of the Bill to put in place a register which members of the public could inspect free of charge. It is very severe of Senator Naughten to ask the Minister to accept that amendment. A contractor may make a mistake, whether in regard to local government housing or a private housing estate, but to put a register in place for inspection by the public on which a name would be registered forever as having done something wrong, is very strong. I would request that that part be thought about again.
I clearly stated in the latter part of the amendment that when a person complied with the regulations, the name would be deleted from the register. While I welcome the principle in what the Minister has said, that the would be prepared to look at this, I regret that it is not enshrined in legislation. We in this House are very familiar with the principle of natural justice. It is going a bit too far to suggest that somebody who would not have completed a development in the manner in which it should have been completed and in the manner for which he got planning permission, whether it be failure to provide public lighting, failure to provide proper roadways, failure to provide footpaths, could get compensation through being a director of another company, maybe the chief shareholder of another company or, in fact, the same company, that is wrong. It is that aspect that I wished to address when I put down the amendment.
Senator Honan has referred to particular cases that she and Senator Howard were aware of — Senator Finneran and I would be equally aware of situations further north — where housing developers have sold houses on the strength of providing a certain level of service and just moved off, leaving no roadways, no footpaths, no public lighting and, indeed, not even proper storm water drainage. That is unforgiveable. To think that those people could be allowed to receive compensation for another planning application not having completed a planning development they were involved in prior to that, would be pretty frightening.
This is what I am trying to get at here. I am not trying to pick holes in the legislation just for the sake of doing so. I am trying to protect the general public and the many householders who have been caught with big loans and who have perhaps, to move because of a change of job and have to sell the house. They bought the property on the clear understanding that the roadways, footpaths and all the other services would be provided. Now they have to put the house on the market but cannot guarantee that the services will be provided. In that case there may be a reduction of 25 per cent in the value of the house. That is criminal. I know of situations where people purchased a house, had been approved for a loan but were unable to get the loan because roadways and pathways were not finished. The house purchaser had to negotiate bridging finance while the developer moved off and developed another site. That is not good enough and it is what I am trying to deal with in the amendment.
I appreciate Senator Naughten's concern as a local authority member, like myself, with regard to the register. There certainly have been a lot of fly-by-night builders in the last few years and that is obvious in a number of local authority areas. I would say to Senator Naughten that if a register is compiled then when a person complies with the conditions attached to the planning permission, his name should be removed from the register. I do not see the purpose of having that register or black list because a black list of builders is already in existence in each local authority and is taken into account every time a builder applies for planning permission.
We should not depart from Senator Naughten's amendment without teasing it out further. I was strongly impressed by the number of points Senator Naughten made when he introduced his amendment. When I listened to the Minister I thought there could be a point in what he described — and they are quite emotive words — as a penal list. Then I realised that in most county councils there is already a list. In some county councils the list is in five categories from the bad down to those for which there is a good prospect that they will put the estate in a satisfactory condition, given time. These are debated in public and are publicised in full. To what extent such lists are penal I do not know. The Minister was probably using the words "penal" in relation to the fact that being on the list would bar compensation to persons who had not complied in full with the planning conditions in any development. It may be that cases should be individually judged on merit but in the majority of cases, particularly those that have caused a lot of trouble, the reality is that developers have deliberately defaulted in completing to a satisfactory level the development they were involved in.
We come on to Senator Naughten's last contribution where he said that it would be totally wrong — and I agree with him — that people who deliberately defaulted on their obligations to persons who purchased houses from them and, indeed, in relation to the planning conditions set by the local authority, should be in a position to apply for planning permission in respect of another parcel of ground or other sites and have that rejected and then be in a position to apply for compensation.
I began by being strongly impressed by Senator Naughten. I swung around when I heard the Minister's reply, which I thought was good, but then I realised that these lists already exist. Senator Naughten is trying to safeguard against the developer who deliberately sets out to cheat not only the planning authority but persons who purchase houses from him. I would suggest that there is quite a lot in the amendment and I would like to see it teased out further.
I welcome the fact that the Minister has given an indication he will consider the general principles that are being outlined here this afternoon when he comes to look at the question of enforcement. This is satisfactory but, like some of the other Senators, I would like to tease out the matter a little bit further so that the Minister can be quite clear in his mind of the concerns of Seanad Éireann in this matter.
I have to say I am far from being concerned at the existence of this stigma for defaulting developers. I feel that a stigma ought to be placed upon them. I have no difficulty or diffidence with this word at all. I doubt if a stigma on its own is sufficient, however. Far from being too strong, it may be a little too weak because some of these persons are quite shameless. Otherwise, they could not virtually attack sections of the community in a vulnerable area, that is, the area of their single biggest investment when they are purchasing a home, and leave them in this unfortunate condition. I am very happy that this stigma should apply to them. The Minister is perhaps feeling too delicate towards their sensitivities. A good strong stigma could be part of the remedy.
Senator Honan also felt that some of these measures were very strong. They need to be, if it is possible for them to be. The Minister was almost suggesting there might be some legal impediment because he invoked principles of natural justice and so on. I would like the Minister, if possible, to specify what particular legal difficulties might be involved here because there may be some principle of law of which I am completely unaware.
However, in the past, Ministers from all parties have been very delicate in this area because of a fear of breaching constitutional and natural justice even though it was quite clear that they were not doing so in the opinion of experts, because a balance of principles came into play. It is not just under the Constitution the question of personal rights arises. The Minister really must bear this in mind and perhaps he has — that the public good is an important element. Nobody has ever really added that consideration effectively into the balance of rights, that countervailing the personal rights of a developer as an individual, there is what I would consider to be an ever greater balance and, that is, the public good. So that if there is a contest between these two, the right of the developer to compensation on the one part as against the rights of a considerable number of poorer people who are having their lives made a misery, then the personal individual right of the developer, which we acknowledge, has to cede to the right of the general public good.
I would remind the Minister that in analogous cases it is always possible to attach the earnings of a miscreant in law, so that the future earnings of somebody who has infringed or breached some part of the law can be taken from him by order of the courts. I do not really understand; perhaps there is a principle that would be breached. I am not sure what it is but I am quite sure that if there is, the Minister will be prepared to enlighten me on this.
I would like to support the Environment spokesman, Senator Naughten, in relation to his intent in principle in introducing the amendment. What has been said by previous speakers in the last few minutes in relation to the whole history of developers and the fact that there history cannot be taken into account when they make other applications is, along with compensation, the nub of the discussion. We are all aware of cases where the innocent purchasers, who will be spending hard-earned money in repayment of a mortgage suddenly finds essential services such as footpaths and lights are not provided. In my area people have been left without roads and literally up to their ears in mud. Residents' associations have had to get together to impose a voluntary levy on a house so that work can be carried out and the estate taken in charge. The local authority cannot be expected to pick up the tab.
Hopefully, it is only a certain number of developers who default but the incidents are sufficient to warrant careful consideration. It would be ludicrous if the same local authority were to pay out money to a developer who had defaulted. It may be another company that goes on in these cases. Improvements in Company Law may go someway towards redressing the situation. The fact is, building companies fold up and are wound up more quickly than the paint dries on the doors and windows of the estates.
Senator Naughten is trying in this amendment to put in a stay or set-off. There may be difficulties in relation to it but the Minister must be aware of the hardship that has arisen. It would be ludicrous that a local authority should pay money to a person whom they had been chasing to try to get him to carry out major work. As Senator Howard said, in the report on the taking in charge of estates there are about four or five categories varying from minor and major works outstanding, to court proceedings. Balance has to be maintained. As has been said, the common good would not be served if a local authority hands out taxpayers' money to a developer who is giving the Harvey Smith sign to the same local authority.
I would ask the Minister to take on board the intention of the amendment, to try to deal with developers who default. There have been cases where people were left with the bond indemnifying the work. The situation has improved somewhat.
All of this requires vigilance. A developer as soon as he has sold his last house, goes off without doing with are relatively minor works but which can cause many problems for the people. I would ask the Minister to consider the principle and intent behind the amendment. He must have a certain amount of sympathy with it.
Lest the feeling should be about that there is a monopoly of unfinished estates or unscrupulous builders in Dublin or the north or north-west, let me assure the House there are such estates and builders in equal numbers, in or maybe in even greater numbers, in County Wexford where estates are badly finished, lighting is insufficient, footpaths are just not provided and no effort is made to provide landscaping.
I would accept the spirit of Senator Naughten's amendment. Listening to the Minister, I am satisfied that he can put in place the procedures to resolve the problem and that is absolutely essential because various problems are caused by unfinished estates. For instance, very recently a local tidy towns group felt cheated by the fact that an unfinished estate was commented on by judges. I am satisfied with the Minister's assurance here that he will put procedures in place that will improve the situation.
It is proposed in Senator Naughten's amendment to have a register of those developers who are behaving in what I might term a socially unacceptable way, defrauding the public of their rights and fooling the local authorities. If there is a stigma attached to them, it is quite right that it should. I agree with Senator Naughten. It is quite right that there should be a stigma attached to them because it is a most dishonest way to behave. I cannot see why the Minister feels that this Bill, which deals with compensation only, cannot take account of this fact. We are talking basically about the same matter. We are quite simply talking about the local authority who have given a planning permission to a developer to develop land within their area and the developer fails to comply with the planning terms, or fails to complete the estate and in so doing is defrauding the local authority of what they are rightly entitled to expect from him. Why should it be so far removed from that when we ask that the same developer should not be entitled to receive moneys from the public purse in compensation for some other planning permission which he has not been able to receive? It seems to me that the two things are quite intimately allied and that there should be no difficulty in dealing with the matter here.
I am glad to hear the Minister saying that he is concerned about the whole question of enforcement. It is certainly an area that needs a great deal of tightening up. Senators have spoken about lists already in the county councils and one Senator said there was a list with five sections to it, from the real bad boys down to those who are guilty of only minor infringements. It is wonderful to have these lists but what can we do about them? We seem to be able to do precious little.
In our local authority we have constantly requested our planning officials to take action when such a developer comes in again requiring some other permission even though he has flouted the law most flagrantly and most blatantly. We say, is this the same developer who did not finish the estate? If I am incorrect in this I would like the Minister to correct me. We are told that we must look at a planning application, we must have regard to the proper planning and development of the area, we cannot look at what the record of the developer is. It seems to be quite outrageous but that is what our planning officials tell us, that we must have regard to the proper planning and development of the area. Here we are asking the Minister to assist us in being allowed to deal with it in another way, which is, refusing to give them compensation.
I would ask the Minister to take this on board because there seems to be general agreement across the floor that this is a very serious matter. It is one with which all local authorities have problems and we feel the remedy is in the Minister's hands and that he could assist us now.
All members of local authorities share the concern that has been expressed regarding unfinished estates and unfinished building developments. As Senator Naughten, Senator Howard and others have said, we can all identify with situations where neither members of the local authority, the planning section nor indeed, the public who were the recipients of the abuse were happy
The formulation of a register on the basis that is proposed will not solve anything. We have registers and lists in local authorities already. Senator Foley has been the answer to the problem.
The Minister homed in on what the answer is. He mentioned enforcement and basically that is what it is about. The Minister said that he would be looking at this area once the Bill has been enacted. I have no doubt that he will. Indeed at the end of the day, with co-operation, understanding and consultation with local authorities the answer will lie in the conditions laid down in planning permission by the local authorities and proper enforcement. The opportunity will be there and is there for local authorities to phase developments, to ensure that situations cannot develop unless certain conditions are met at a certain stage. In the end, it will come down to enforcement.
I am inclined to go along fully with the Minister. He has identified the answer. Consultation with local authorities and with ourselves as members of local authorities can indeed bring this situation to an end and provide the protection that we would like to see for the public in general when they buy property from any developer.
I would like to support Senator Naughten's plea to the Minister for a tightening up of this law. We have heard this debate a million times at county council meetings over the last number of years. I agree with Senator Finneran who said that a phased development which is being brought in is an answer, by and large. That has been not just the county council's way of dealing with the situation but now the public, rather than going into 1,000 house complexes are looking for the closer identification possibly with small clusters, of, maybe, 100 or 200 houses. The first phase of planning permission would be given and there should be a guillotine in relation to the second phase if the developer had not completed phase one.
The local authorities have only a certain amount of control in that area. We are talking about the environment and its destruction. There is nothing as bleak or devastating as an unfinished estate and as Senator Cosgrave said, the situation is exacerbated during the winter months. When people look for an individual planning permission — they might be only changing the roof of their house — the county engineer and the neighbours will ensure that they keep exactly to the planning permission. One can understand why people who have paid out vast sums of money to these developers are irate when they see the developers getting off scotfree and leaving unfinished business behind them.
A register is essential. I know Senators on the other side have said it is not a deterrent but it is a deterrent for the general public. When somebody comes to an area they go to the county council and ask what is happening in, say, Castletroy, over the next number of years. They also ask the names of the builders with an unblemished record, and of the fly-by-night operators. If one goes through the list one certainly will not be caught by somebody who will swoop off and leave one mucking around in the dirt over the winter months, or even during the summer months as happened a couple of years back when Limerick County Council had to spend £30,000 of their own money to complete an estate. They had enough to do in the area besides completing this fly-by-night builder's work. That builder took off and was never heard of since and the people there had to find all sorts of methods by which to clean their houses. It was a long hot summer and that meant there was a lot of dust and dirt. It was like the wild west or the dust bowl of the United States at the turn of the century. We should not have to put up with this and the responsibility should not rest solely with the county councils. They are doing their bit as regards phased planning permissions. The general public are also doing their bit because they do not want to be caught up in these 1,000 house ghettoes which invariably are never completed. They want the small clusters of houses.
Since I came into the Seanad on 1 November last, the Minister has listened with interest to all contributions and has taken our views on board. He said he will look into the matter after the Bill has been passed but will that take years? I hope not. I would prefer if the Minister included this in the planning and development area because it is broad enough to encompass all of this. It is a disturbing feature and the Minister should see that from the consensus among all speakers.
This is an important topic, especially as most people purchase only one house in their lifetime. It is the biggest decision that most married couples will ever take as it is where they will live for the rest of the lives. The problems arise in all local authority areas; they are not just confined to one county. It is a major problem and no one wants to come to grips with it. People are left with something that was not planned when planning permission was granted or when developers moved into areas. We all know that it is as a result of downturns in the market that these problems arise. We know that from 1983 to 1987 the building industry was decimated, it was on its knees. No one had the answers, no one could do anything about the problem.
Acting Chairman
The Chair has been very patient. We do not want Second Second Stage speeches and we have had 14 or 15 speakers on this amendment. While the contributions have been quite good the Chair will be very vigilant as far as repetition is concerned. There are two amendments before the House for discussion and I appeal to my colleagues to speak to them. The scope is fairly wide without going further.
Could I ask for clarification, not wishing to interrupt the Senator? When you say two amendments, do you mean we are taking the final amendment on the page?
Acting Chairman
Amendments Nos. 3 and 7.
All these problems arose, from my experience of local authorities, since 1985 when there was a downturn in the market. There are fantastic builders in Ireland and fantastic Irishmen building all over the world. We hear about the dishonest builders but much of the dishonesty is not premeditated. A lot of it just happens because of the downward trend in the market. As I said before, it seems to happen at a certain period, perhaps once every ten years.
In relation to the proposal before us for a register, this is a very specialised industry. It is an area where county executives keep an eye on everything that goes on from county to county. They liaise with their fellow county managers, county secretaries and county engineers. The Minister and the Minister of State know every secretary, county manager and county engineer after six months in the job. The Minister of State at the Department of the Environment is one of the most experienced ever to hold office. Members on all sides of the House recognise how courteous and approachable he is when dealing with any queries.
Bearing all that in mind I must listen to the advice of the experienced Minister of State with us today, I must accept his recommendation in relation to those matters. He has come in here time and time again and has given us the benefit of his own experience. As chairman of a local authority, I have never found him wanting in receiving a deputation from our authority and I wish to put that on the record of the House.
Acting Chairman
We are dealing in these two amendments with compensation and I ask the Senator to address that question.
As this industry is very specialised, in my view there is no need for a register. There are only a few in each province, never mind in each county. These people are very specialised in their own field and I accept——
The Senator's colleague said that Dublin did not have a monopoly, but that they were all over the country.
——the word of the Minister here today in recommending this to us.
Like previous speakers, I am concerned. We have some of the best contractors in Europe and they have excellent staff. They have proved their worth outside the country and at home. It concerns me that local authorities in general spend too much time inspecting private houses. If somebody builds a bungalow they have to inspect everything, down to the gravel on the footpath. To qualify for a grant of any description one receives a call from maybe three inspectors, and this at enormous cost to the Minister's Department. Some of our finest villages and towns have been adversely affected by the carry-on of some of the cowboy builders. There are so many sides to this issue such as the black economy. Many good, honest contractors go to the wall because they do everything according to the book while the fellow up the road does not play his part.
I must mention another body who have left eyesores all around this country and the Minister might have something to say about them. The NBA have blighted many towns, as they did in my own town in south Tipperary but they were not brought to heel by the local authority. We do not need registers of any kind if local authority officials paid as much attention to the big developer as they do to the small builder who builds a residence for a family and does not speculate on land or anything like that.
I agree with the concern expressed by most Senators. It is a shame to see nice towns and villages destroyed by people not completing the work on the footpaths, lighting, etc. Many people have a role to play including the planning section of the local authority and the Department of the Environment itself. Perhaps the Minister could tell us when a housing estate is supposed to be finished. They advertise a grant of £2,000 or £4,000 or whatever it is but they should not be allowed to publish that type of advertisement unless they have complied with all the planning conditions. It is misleading the customer and the Department should lay down regulations forbidding such a promise to the would-be purchaser. We all have a role to play and with a little goodwill we could get around the problems. I hope we will not have any more problems in future.
I want to thank the many Members who spoke on this and to refer them to page 22 of the Bill and the Fourth Schedule containing conditions which may be imposed on the granting of permission to develop land without compensation. One provision refers to any condition determining the sequence in which works shall be carried out and specifying a period within which work shall be completed. I do not want to be taken out of context because we are dealing in this Bill with compensation.
The Members spoke here in detail but they appear to be confused on many issues. Let me explain something very clearly. A local authority today has a right, when it is granting planning permission, to put in a condition that phase one of, say, a 20 house scheme, must be completed before they are sold. The local authority can also put in a condition in the Schedule in regard to funding. Instructions to local authorities are that we must be severe on developers. It is only right that if a developer builds houses in any planning authority he should comply with planning laws and the laxity in previous years must be rectified. In every local authority there is a planning authority committee to deal with all this. Generally, my own planning authority have a meeting every month where they discuss all major developments — indeed any development. We get a list of what is planned for the county. The planning authority members are very competent and they can bring that to the attention of the officials, the manager or the designated officer of the planning authority who give consent to the planning or whatever the case may be.
When this Bill becomes law, I will again get in contact with the local authorities explaining the position. I do not like using the word "penal", though I did earlier. I do not like to do that because in general we have excellent builders, although there might be one or two black sheep, if those are the words to use. I do not like using them either but I must if there is laxity in that regard. Completed houses in regard to which the Department pay a grant are inspected by the inspector of the Department of the Environment and must meet all the conditions laid down. The planning authority have the necessary powers in regard to private housing estates to enforce very strict laws.
As I said, when this Bill is enacted I will see what further action I will take. I will give that undertaking but I regret that I cannot accept Senator Naughten's amendment. I want to be as helpful as I can and I will bear in mind the Senator's remarks. Very constructive views were put forward here today and I accept many of the concerns expressed. Senators can rest assured that the Minister and I will ensure that all necessary action is taken in this respect.
Acting Chairman
Is the amendment withdrawn?
I regret the Minister did not accept my amendment. Having said that and having listened carefully to what the Minister said about having a further look at the Bill when it is enacted and that he would be in contact with county councils, I withdraw the amendment.
Amendment, by leave, withdrawn.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
I have a query on section 5. First, I am glad the Minister and Senators Cassidy and Byrne drew attention to the fact that the problems in regard to unfinished estates were caused by a minority of developers and builders. Unfortunately, those bad apples have given a bad image to the building trade. We should balance our discussion here by recognising that some of the finest estates in our cities and towns have been completed by developers whose work is regarded not alone here but outside as examples of good development.
Most of the discussions so far have been about developers and speculators. There is an obvious interest in this Bill and I regard it as a compensation Bill. It crosses the divide to affect the interests of another category, that is, landowners. For that reason I intend to hold a watching brief and to ask questions in their interest as this measure goes through. Therefore, under section 5 and, particularly, under condition No. 20 we are talking about compensation for the removal of a hedge. What kind of a hedge are we talking about? Are we talking about a decorative hedge around the front of a building or a fence around a farm?
We are talking about something that could be along a roadway and the local authority would be concerned with that. Local authority members should bring that to the attention of the local authority concerned. There are ways and means of dealing with it. Where a landowner is not satisfied, arbitration is available.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
Section 7 states:
Where a person would, but for this section, be entitled to compensation under this Act in respect of any matter or thing and also to compensation under any other enactment in respect of the same matter or thing, he shall not be entitled to compensation in respect of such matter or thing both under this Act...
This relates to the prohibition of double compensation. Will the Minister give an example of the situations or circumstances covered under this section?
The likelihood of double compensation arising is remote, although both the Air Navigation Act and the Arterial Drainage Act provide for compensation in respect of abatement of development rights. However, this section is a general and precautionary one and will cover future as well as existing legislation.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
Subsection (2) states:
All costs and expenses of parties to an arbitration to determine the amount of any compensation shall, in so far as such costs and expenses are payable by the planning authority, be recoverable from that authority as a simple contract debt in any court of competent jurisdiction.
I am concerned about this. Compensation claims of a very substantial nature already exist. The claims that have been made in this city are the ones that have generated interest and comment and the burden will fall on the local authority. However, should a smaller local authority, other than those that administer the city and county of Dublin, be confronted by a number of those claims some of which are already in the pipeline and not covered under this legislation, where will they find the finance, in view of the stringent circumstances which exist in so many counties? Can they apply to the Minister's Department to bail them out?
That is a different matter. Subsection (2) provides that the portion of the cost and expenses of parties to an arbitration payable by the planning authority shall be recoverable from that authority as a simple contract debt in any court of competent jurisdiction. In general, costs and expenses fall to be dealt with by the property arbitrator in accordance with the provisions of the acquisition of land under the Assessment of Compensation Act, 1990. The general procedure as heretofore will apply to all arbitration.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
This section deals with the recovery by the planning authority of compensation on subsequent development. In a small provincial town where planning permission is refused on land adjoining the town and there is a sale, and perhaps a subsequent sale, does the power of recovery by the local authority extend to second and subsequent owners?
Yes.
Question put and agreed to.
Section 11 agreed to.
SECTION 12
Question proposed: That section 12 stand part of the Bill."
In relation to the Roches Hill and Grange Development cases the Planning Appeals Board did not include non-compensatable reasons even though the non-compensatable reasons did apply. Will the Minister consider the inclusion of a section which would oblige the Planning Appeals Board to put in non-compensatable reasons and to specify them, if they did apply?
I understand the Senator's concern but she cannot have it both ways. When a planning authority grant planning permission or refuse planning permission and there is an appeal, it goes to An Board Pleanála. An Bord Pleanála are an independent body and they make the decision. I would not like to interfere with them in any way. Many Government Departments and local authorities have been blamed for interfering with various organisations. The Minister, the local authority or a member should have power only when it suits them. I am not referring to the Senator. I would not wish to get into that arena because then I would be putting down certain workers for An Bord Pleanála which I would not wish to do.
This is a new Bill dealing with compensation. While I will endeavour to accept what the Minister says in relation to not wishing to put any constraints on the Planning Appeals Board as they are a completely independent body, the reality is that the Planning Appeals Board do not have to pay the compensation. Therefore, it is nice and easy for them, independent as they are, to say that. That is not justifiable. Will the Minister stand over a case where non-compensatable reasons apply and the Planning Appeals Board neglect to include those and, thereby, leave the planning authority to pay the bill? It is the local planning authorities who have to find the money for those compensation claims. That is inexcusable and, in my view, it cannot be countenanced. If non-compensatable reasons do not apply, so be it, but where they do apply it is unreasonable to expect the board to decide. I refer back to the Roches Hill case and to the Grange Developments case. I believe the Minister is incorrect in saying that the Planning Appeals Board are totally independent and outside every jurisdiction. The Minister has the authority to direct the Planning Appeals Board in certain instances and he used that power in relation to shopping centres. In that instance the Minister issued guidelines to which the board had to have regard, so the Minister, when it suits him, can have jurisdiction over the Planning Appeals Board. It is not an unjustifiable interference with the Planning Appeals Board simply to direct them that if there are non-compensatory reasons they include them and do not leave the local authorities to foot the bill.
I want to be clear on this. The planning board of the day is completely independent. I would not interfere or direct them in any way because the planning laws set it all down. Say a planning permission is granted by a local authority. They often decide to delete the condition or put in another condition. I have to accept their judgment because they are competent people. Therefore, I would have to accept their views on the matter. The Minister does not interfere with the planning board of the day. I am not aware that any Minister has ever interfered with them. When the planning is on appeal they have to decide that on their judgment.
If I may come back on this, the reality is that the Minister did issue guidelines with regard to shopping centres. He directed the Planning Appeals Board to have regard to them. It is easy to say they are independent. Would the Minister be satisfied if he knew that tomorrow the Planning Appeals Board put in a non-compensatable reason where it applied and left a local authority to foot the bill? Is the Minister happy with that situation? I am not, and we could not be satisfied with it. Just to say that the Planning Appeals Board are totally independent is fine. I am not suggesting that they be interfered with when making a decision with regard to the rights and wrong of whether permission should be granted or not. But to require them to put in a non-compensatable reason where it applies simply so that a developer will not get compensation to which he is not properly entitled, does not seem to me to be any infringement of their powers.
Possibly I did not explain myself in full. Where there is a planning appeal to An Bord Pleanála, the local authority have a right to put their side of the case; the developer and land owners or anyone else also get that right. What more do we want? We cannot have our loaf and eat it. Firstly, we want independence and then somebody expects me — I will not use the word "overturn"— to interfere in the matter. All the Minister has is the Act. Our people here have an option which does not apply in other countries: they have the right to demand an oral hearing. In many cases this is granted. Then, if they are not pleased with the result of that, they have the option of going to the courts. What more do we want?
I am not going to interfere in any way with planning appeals. I would not do it. I recall the time, when a Parliamentary Secretary was responsible with his officials, for refusing or granting a planning appeal — and God help him at the time. He was not too popular. That is why we brought in the Planning Appeals Board and gave it complete independence. I would not dream of interfering. It would be a grave step to take and completely undesirable.
I want to put another query to the Minister. I would ask him to confirm or otherwise that my understanding of subsection (4) is correct. It states:
Where, under section 29 of the Principal Act, it is the duty of a planning authority to acquire an interest in land, compensation under section 11 shall not be payable in relation to that interest.
Section 11 dealt with compensation payable where planning permission is refused, or granted under such conditions as to make it inoperable. Am I to understand, in regard to what subsection (4) is dealing with here, that if that particular piece of land is required by the local authority for some particular purpose — road widening, development or some such purpose — that the earlier compensation does not apply?
Subsection (4) provides that compensation shall not be payable in respect of any interest in land which it is the duty of the planning authority to acquire under section 29 of the 1963 Act. This duty arises only if the owner claims that the land is incapable of reasonably beneficial use in its existing state and a purchase notice becomes effective requiring the planning authority to acquire the land. It follows that, where both a purchase notice and a compensation claim are submitted by the owner of the land, the purchase notice must be disposed of first.
That explains it.
Question put and agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
Subsection (2) again specifies a list of alternative developments. If, for example, planning permission is refused for a particular development, there is a list of alternative developments. It is as if the planning authority were to say: "Look, we are not allowing the development you applied for but we are prepared to admit or accept that any of the following would be suitable development" and in these circumstances compensation is not payable. My question is in regard to the developments that are listed as alternative developments there. Is that a total list? For example, a sportsfield is not listed in that development. A sportsfield could have a good commercial interest, a dog track, for example. There are many examples I could give. But they are not included in those that are listed. Are those that are listed an exclusive list? Is anything outside this compensatable?
Would they not come under structures?
Subsection (2) sets out the other developments to which a notice under this section may relate. This is development of a residential, commercial or an industrial character. A sports stadium could be counted as commercial. There could be a charge. Where you have what I call a sponsorship board then possibly it would come under it, too, because there is a gain to the ownership of that. Section 12 and the Second Schedule provide that where planning permission actually exists for gainful development of this kind no compensation is payable. The present section builds on that principle by providing that, where the planning authority formally declare that land is capable of gainful development for which permission ought to be available, compensation will not be payable either.
I wanted to establish whether those you listed were exclusive or not.
I would like to ask the Minister what is the difference between these notices, as they are now called, and what were previously called undertakings? Is the purpose of this section related to what happened in the past: where a local authority refused permission to a developer, the developer subsequently applied for massive compensation or some compensation and the local authority ran scared because they did not have the money and they said. "We will have to cave in and we will have to grant permission" and they gave an undertaking that they would grant such permission? I have the impression, though I am not certain about this, that subsequently there was a case where a developer did not want that and where the courts ruled that they had no validity. Is the purpose of this section to make those undertakings stand up in court?
I would like to question the whole basis of this idea of first of all refusing a developer permission to develop; he then comes along and puts in a claim for compensation and at that stage the local authority, having previously refused permission to develop, can come along and say that this land in their opinion is capable of some other development and they will give notice that they are prepared to do that and that that will invalidate the compensation. What we are really saying there is that what was at one stage considered to be bad planning and unacceptable, and therefore refused, tomorrow, or three months later, seems to become all right. It smacks of the sort of deals local authorities have entered into.
What is the position regarding an open space? If you have an open space, such as the Liffey Valley, the green belts around the county, places like Portmarnock, Howth Head, Killiney, anywhere else you like to mention, and permission is refused for these, is the local authority then going to be pressurised for planning compensation and give permission here for some other form of development?
The present section seeks to retain the basic principle of allowing a compensation claim to be rebutted by the offer of alternative development. To avoid the main difficulties associated with undertakings, briefly section 13 will make it possible for a planning authority to avoid the liability for compensation by serving a notice on the claimant stating that in their opinion the land in question is capable of other development for which planning permission ought to be granted. This will be more a statement of principle than a contractual undertaking and any planning application within the ambit of the notice will be dealt with through the normal procedures without any prejudice to those procedures.
So the same position is going to pertain: local authorities will be virtually forced to cave in by these possibilities——
No, it is a matter for the local authority. They will not be forced. They make their own judgment.
When I said "forced" what I meant was that they will be, in the whole area of compensation, because as the Minister knows better than most people, local authorities are strapped for resources. When they are faced with compensation claims, unfortunately, as things are at the moment and because they can give these undertakings or these notices, what is in fact happening is this. Where the local authority believe, for example, that an area should be kept as an open space, that that is in line with the proper planning and development of the area as laid down in the development plan, they then find that if there is a compensation claim in they have to scuttle off, change their minds and say they will allow the development. It is all right if you are talking about one form of development vis-à-vis another form of development, but what I have asked about specifically is in relation to open spaces and green belts as designated in a development plan. That is what I want to know about — where it is not considered good planning that there should be any development.
This is certainly presenting a very serious problem in the city. I am sure Senator McMahon will know the pressure they are under in the county areas trying to hold on to the open spaces. If local authorities are going to find themselves in the position of being faced with compensation claims or giving these notices, it is quite clear what will happen, because they simply do not have the money. I think that is very retrograde and not in line with good planning for the city, or, indeed, for the county.
This Bill is excluding claims. Where it is zoned for open development compensation does not arise at all. Much of this will come under your county development plan. It is a matter for the local authority who will know how best to act there.
Question put and agreed to.
SECTION 14.
I move amendment No.4:
In page 11, lines 32 and 33, to delete all words from and including "the Minister may" down to and including "he is satisfied" and substitute "the High Court may allow, the High Court makes an order declaring it is satisfied".
The reason I tabled this amendment was that on Second Stage I expressed great dissatisfaction that the word "Minister" was included in this section. While I have the utmost respect for the present Minister and, indeed, have no doubt that whatever decision he would take would be following detailed discussions and examination of the whole issue and based on sound planning and sound principles, nevertheless, this section does leave itself wide open to interpretation and inevitably will put tremendous pressure on the Minister of the day to decide whether a particular case is entitled to compensation or not.
I recognise that the Minister does not decide on the compensation, but under this section he decides whether a case is eligible to be considered for compensation. It is a great pity that the Minister did not seek an alternative avenue. In this case the courts would be the best people to decide whether a particular case was entitled to be considered for compensation or not. As I stated, I have grave fears that Ministers will be subject to political pressure. Certainly, they may well be subject to allegations — perhaps quite wrongly, but that is beside the point — and once the allegation is made very often it will stick, and people could be forgiven perhaps for interpreting a Minister's decision as being taken because of who the applicant was rather than on the merits of the case.
I would ask the Minister to consider this amendment carefully. I sincerely hope that the Minister will include the wording which I have in the amendment. I would appeal to the Minister to examine this section carefully. By and large, we all welcome this Bill and recognise it as overdue to fill gaps in the planning regulations allowing major claims for compensation to be lodged. While I recognise that to date only approximately £90,000 of compensation has been paid out, nevertheless there is a substantial number of claims there.
We should do all in our power to ensure that this legislation will have no loopholes. I fear the Minister will be dragged into the political arena if this section remains part of the Bill. That is why I put down this amendment. I appeal to the Minister to have this amendment examined carefully, because regardless of who is Minister, or of what political grouping, the Minister will be open to the allegation of taking a certain political stand. It is unfair that any Minister for the Environment should be put in that devious situation.
When replying to the previous section the Minister referred to the very difficult situation that existed prior to the setting up of An Bord Pleanála where the Parliamentary Secretary at the time was responsible for appeals. By and large most Parliamentary Secretaries were very fair and worked to certain guidelines, but allegations were made of certain planning applications getting more favourable consideration than others because of the political persuasion of the applicant. I am not saying it was true; what I am saying is that that is what happened. I would be very much afraid that the same thing would happen in this case and that is why I am appealing to the Minister to accept the amendment I am putting forward now.
As has been said earlier on by a number of speakers, the Minister has been very sympathetic. The Minister has been here on a number of occasions. He has dealt with a number of Bills, has been extremely interested in the comments and, indeed, has accepted some of the amendments. Here today also the Minister has been appreciative of the comments and the interest of this House. If there is one amendment which I hope the Minister will not have difficulty in accepting, it is this one. As the previous speaker said, it seems to be a very strange situation that this area should be left to the Minister of the day to decide rather than, as Senator Naughten's amendment suggests, that the matter be in the hands of the High Court. It would seem to be a much more rational and more valid way to deal with a situation if there appears to be an injustice — and it is quite possible that there could appear to be an injustice.
It appears that this legislation, drawn up by the Minister's Department and put through with a great number of amendments — most of which I appreciate — is going to be considered in certain instances to be inadequate and the Minister is then going to be able to step in and decide if compensation should be paid. As have been said by Senator Naughten, it undoubtedly leaves open the allegations which the Minister himself denies, the allegations that a Minister can intervene and go over the heads of those who are empowered to deal with this — and the Minister said how unsatisfactory it was in the case of planning decisions. We would all agree with that.
What I find very strange is this and I hope the Minister will be able to take this thought on board: on a number of occasions this afternoon the Minister quoted to us his abhorrence of the Minister interfering. You told us, Minister, that you wanted to keep him out of it, you wanted it to be independent, you did not want the Minister to be interfering and getting embroiled in this but now, suddenly, in this instance you seem to be very happy. However, we hope to hear that you are not happy and that you are going to accept the amendments; but if you do not accept the amendment you are certainly telling us that you are happy to have the Minister involved and embroiled in all this. If I may go back, Minister, I did not want to keep getting up over and over again. The Minister sidetracked the point I made earlier on two occasions — he simply did not respond to it — about the Minister being in a position to direct the Planning Appeals Board to have regard to certain items and that he did it in relation to the whole question of shopping centres. The Minister sidestepped that issue.
I do not think the Minister should be——
There is one thing about me and that is that I sidestep nothing — I will be upfront. I want to clear up this point, there was no sidestepping of anything. No matter who is the Minister of the day, the laws are there for An Bord Pleanála. They are completely independent. There is no sidestepping by me or anybody else. I resent that comment. I will not sidestep; I am too long in the political game to sidestep anyone.
Acting Chairman (Mr. Farrell)
Section 12 has been agreed and we cannot allow the Senator to go back to it. I cannot allow the Senator to continue on that section. We are on section 14 now.
Quite clearly, under section 14 we are talking about whether the Minister should be allowed to intervene. We are talking about the Minister here — whether he approves of Ministers intervening or not intervening — and it is in that context I am speaking. It is not very easy in one instance to say we cannot have the Minister getting involved at all and that the Minister must be kept out of it, but under section 14 we are suddenly deciding it is good to have the Minister embroiled and that the Minister shall have discretion to decide on this matter of compensation.
I think this is a very invidious position for any Minister. I wonder, if we were to think about it, would we not be doing the Minister a service by having that section taken out, because there is no question about it: whatever the Minister does under that section, if he has the discretion, he will be open to charges and allegations. If he says that compensation should be considered and it happens to be a crony of his, people will point the finger at him. If, on the other hand, he says "No" and he refuses, they will say it is because the developer was not a crony of the Minister. No matter what way it is done he is going to lose out.
I suggest that the Minister would be better out of this section. Undoubtedly, what was put forward by Senator Naughten is a very much more desirable way of dealing with the matter. I hope the Minister, since he abhors Ministers interfering in these matters, will accept Senator Naughten's suggestion and his amendment that the High Court would be the legitimate authority to deal with this.
Ministers present or other Ministers with whom I am friendly do not make decisions just because they have cronies. For Senator Hederman to stand up in this House, when a very sensible debate is going on, with across-the-floor agreement on local government, and accuse the Minister of sidestepping on a section now passed was unfair, to say the least of it.
On the amendment to section 14, I am amazed at the attitude of some of my colleagues on the other side. As practising politicians with confidence in ourselves, we should at all times try to protect the little bit of power we have left. I have the greatest respect for Senator Naughten but I cannot understand how he asks us to support an amendment replacing "the Minister may" with the words "the High Court". This is a matter that has in recent times been brought to the forefront of our political life. We must preserve what confidence we have and our belief that the judgment of Ministers, present and in the future, will be right.
To hand over the little power we have to a High Court judge is, I think, wrong and I say that as a friend of Senator Naughten. He is asking us in this amendment to remove the Minister, implying that he or the Minister of State may not make correct judgments in the future, and bring in instead a High Court judge. For senior Members of this House that has deadly serious implications and I would be totally opposed to this amendment. It is rarely I get up in this House, in all my years here, to take such a strong stand. I intend, while I serve to seek to preserve whatever power is left to us as parliamentarians, to hold on to it and not hand it to the High Court or any other courts for that matter. I oppose this amendment very strongly.
In supporting Senator Naughten's amendment, I am sure it was put forward out of utter concern for the Minister and in recognition of the pressure he will be put under in taking on himself the right to decide if compensation should be paid. Prior to the establishment of An Bord Pleanála successive Ministers for the Environment were put under pressure in relation to applications for planning permission, particularly when they turned applications down. I certainly do not see any derogation of power to the court. The amendment seeks to give the Minister scope to put through the ultimate Bill dealing with planning compensation. The Minister is going to come under pressure from those refused planning compensation who will say that he favoured some while not favouring others because of political alliances of one kind or another. The general public will look for a scapegoat and the Minister is ready to be that scapegoat. It would have been far better if the Minister had gone the whole hog and kept the matter above the question of political interference. We are not saying the Minister will interfere, by any manner or means, but Senator Naughten is anxious to harbour the Minister from such inferences.
I strongly support the amendment. The general public are going to lose thousands of pounds and they will be out for somebody's blood. I would much prefer to see them out for the blood of the anonymous courts rather than for the blood of the Minister, Deputy Flynn, or the Minister of State, Deputy Connolly. I certainly would not like to see his blood spilt just because he decided he would not pay a specific compensation claim. We are protecting the Minister in this case and he is more than aware of this.
Is Senator Honan saying that she would like to see a return to the position where the Minister would decide on planning appeals? That seems to be the corollary of what she is saying. I thought everybody accepted, in spite of the decisions we might not like, that the Planning Appeals Board did have the independence which Minister, Deputy Connolly, spoke about and that this was a good thing, but now Senator Honan appears to be telling us that the Minister should be involved and should take the final decision. I think Senator Jackman put it very well when she said there is much at stake. When I referred to the Minister's cronies, what I am hinting at was allegations, which may not be true, that may be made. We are leaving ourselves open to the allegation, whether the Minister decides in favour or against — as has been said, there is a lot at stake — that the person concerned was some pal of the Minister. This is undesirable. I ask the Minister, if his statements earlier that the Minister should be kept out of this were genuine, to indicate how can he justify giving this very delicate and sensitive power to the Minister rather than to the courts who are both impartial and well qualified to deal with such claims sympathetically and in a very reasonable way.
I oppose the amendment. While I respect the points made by Deputy Naughten, we are talking about the reform of local government. If we were to accept the amendment we would be giving away some of our powers. I am satisfied that the Minister of the day will take into account the purpose behind paying compensation. In his opening statement he said the purpose of the Bill is to amend and consolidate the law with regard to planning compensation. I believe the Minister of the day would be in a far stronger position to decide on compensation claims. If the matter were to be taken to the courts substantial costs would have to be out of all proportion to the amount of compensation payable. It has been mentioned already that claims to the value of £90,000 against the local authority in Dublin have been decided upon, with claims to the value of £25 million in the pipeline.
This amendment would transfer from the Minister for the Environment to the High Court the discretion to order payment of compensation in exceptional circumstances, as provided for under section 14. While I appreciate the intention behind the amendment, I consider the function involved to properly be a governmental rather than a judicial one. By tradition, the Irish courts have been involved in planning matters related to points of law in the interpretation of Bills only. The judgment required to be exercised under this section is not a matter of law. The issue involved is whether in particular circumstances it would be reasonable to give a person access to compensation, notwithstanding the restrictions placed by section 12. I should explain that section 14 does not involve the Minister in any way in determining the amount of compensation which a person should receive, which might be a token figure. Under section 5, that is a matter for agreement or arbitration.
As far as can be established, only two orders have ever been made by Ministers under section 58 of the 1963 Act, the predecessor of this section. The last of these awards was made in 1986. Applications have been much more frequent than awards. Some 21 applications under section 58 have been made since 1977. This relatively high failure rate of applications is another reason we should be slow in introducing a reference to the High Court in section 14. If a competence in this matter is transferred to the High Court, applicants will have to take on the cost of engaging a solicitor and counsel. We are all aware of the cost that would be involved and in saying that, I hope I am not referring to any legal people here. I have no wish to do so.
They are not around at the moment.
In bringing the case to the High Court one would be uncertain of the prospects of success. As things stand, application to the Minister involves virtually no expense. The power available to the Minister to permit the payment of compensation in exceptional cases is a necessary safeguard because of the very severe restrictions imposed under the Bill on the payment of compensation. I would be very reluctant to hand over this power to the High Court which will only be involved in deciding whether the Bill will stand up in law. I have explained the reasons I cannot accept the amendment, and I can elaborate on those if the Senator so wishes.
I listened with interest to the Minister's reply and wish to comment on the amendment. I support Senator Naughten for two reasons. First, he advanced excellent arguments in proposing the amendment and, secondly, it is in keeping with the policy of my party in relation to this matter. My party have always shown a great tolerance for those who might have certain reservations about certain matters. I want to say that I am undecided as to whether this adjudication should be made by the Minister or by a High Court judge but I am not going to allow my colleagues on the other side of the House to emerge from this debate with a monopoly in defending the integrity of politicians.
The Senator has seen the light.
Many people have jumped on the bandwagon and they avail of every opportunity to accuse politicians, be they ordinary Members of the Oireachtas, member of local authorities, or Ministers, of acting recklessly. I have never felt that I should support that particular lobby.
I welcome the fact that provision is being made for an appeals procedure. One can argue in favour of a judge or a Minister making the decision. I have always been of the view that the primary function of a Minister, apart from running his Department, is to act as a bulwark against bureaucracy in defending the rights of the ordinary individual. I am confident the Minister, or any other Minister, will fulfil this role. I am sure that where problems arise they will have arisen as a result of an injustice, perceived or real and we as politicians will be involved. We will be able to make an informed judgment on whether an injustice has been done. Somehow or other, I would fancy my chances in trying to have an injustice rectified far better with a Minister than with a High Court judge.
We are all aware of that.
I know the Senator is relying on me.
There is one aspect the Minister did not refer to and that is the cost involved. I respect and support what Senator Naughten has proposed. If he contests it, I will vote in favour but, as I have said, I am undecided. However I am glad I belong to a party that affords me the liberty and the opportunity to express reservations when I feel it is necessary to do so.
The Minister of the day will retain this power. Once Senators learn of the reason why I think they will thank me for it. When I outline the reason I am sure Senator Naughten will come around to Senator Howard's and the other Members' way of thinking and have a more balanced view.
I will not.
Let us take, for instance——
I am listening carefully, Minister.
——the case of the ordinary man or woman in any part of the country who is unable to unhinge the first door of the High Court because of the cost involved. This is very important. I have no intention of referring to the position of anybody in the legal profession, far from it, but how much would it cost to initiate High Court proceedings? I can assure Senators a great amount of money would be involved and the person concerned would be uncertain about the prospects of success. The ordinary man, and I am referring here to the fellow living in the midlands, would not be in a position to initiate court proceedings. Putting that section in the Bill gives a greater confidence to persons in poor financial circumstances to take the case on.
Let me elaborate further on that point. The procedure under section 58 of the 1963 Act, which allows application to the Minister for a declaration that it would not be just and reasonable for compensation to be ruled out, has been invoked only rarely.
According to the records of the Department, only 33 applications have been made since the 1963 Act came into operation in October 1964 and seven of these relate to the same case while only 13 orders have been made under section 58. Eleven of these refused the declarations sought by the applicant, while two orders, declaring that it would not be just or reasonable for compensation to be precluded, were made, the first in July 1974 and the second in May 1986. The total amount of compensation paid in consequence of the two orders was £39,000.
This information should allay the fears expressed by the Senators that section 14 of the Bill will lessen the effectiveness of the new prohibitions on compensation. I can assure Senators that any applications made under section 14 will be subjected to tough scrutiny and an order will not be made unless it is absolutely clear that the normal limitations on the right to compensation would bring about unjust and unreasonable results in a particular case. In no circumstances could I see the senior officials of my Department allowing me or any other Minister to take on board any application without first giving it very serious and detailed consideration. As Senators will appreciate, each Minister since the 1963 Planning Act came into operation has been most responsible. Nobody would deny that, but if I were to accept the amendment — I cannot agree to it — I would be doing a grave injustice to some of the people Senator Naughten and other Members of the Seanad would like to help but who, because of the limitations on their finances, are unable to take on a case. I would advise the Senator to consider it very carefully.
I have to say I cannot accept the amendment for the reasons I have given, but I hope I have been as frank and as open as I possibly can be on this matter. I told Senator Hederman I would give her a very detailed reply and I hope I have done that. I also hope I have allayed the fears of Senators. I appreciate the Senator's views on this matter. I think she is concerned that the Minister might find himself in an embarrassing or difficult position but I have to take into account the ordinary person who is not in a position to take a case on. When erecting a new house they are generally dependent on the financial institutions. I want to see that safeguard retained. The sole reason for this is that I want to look after the ordinary man and woman. I think Senators expect me to do this, and they would not think a lot of me if I did not.
I agree with the Minister when he says that this procedure will only be invoked in a small number of cases. I have to support my colleague as there is a possibility that the Minister of the day — I say this with the utmost respect to the Minister of State present — may come under undue influence in deciding, on applications, particularly those involving a lot of money. I think this was one of the criticisms made when the Minister did have a say in deciding on planning applications. One of the difficulties we would encounter in allowing cases to be taken to the High Court or some other form of tribunal is that we would run into delays. I do not think, given the number of cases involved, that that would happen in this case. Obviously we have to be careful in relation to the costs to the individual but I ask the Minister to look again at the question of whether he is going to put future Ministers under the spotlight, when they will face possible allegations that they were influenced by the old boys' network. I ask the Minister to take on board the intent of Senator Naughten's amendment.
I listened with interest to the Minister who is an excellent performer. With respect to all concerned, I think he would make a great lawyer in that he seems to be able to make a great case for almost anything. I think he has made an excellent case today for doing away with An Bord Pleanála, a body he defended earlier this afternoon. I, too, have reservations, like some of my colleagues, about taking powers from the politicians and handing them over to others. Perhaps Senator Naughten is going too far in his amendment but is there a middle road? Can a case be made here for establishing a body, similar to An Bord Pleanála, to deal with such cases?
They would have to make quicker decisions.
In listening to the Minister, one would imagine he was totally opposed to the setting up of An Bord Pleanála which is in contrast to what he said a couple of hours ago. I do not think he can have it both ways. A strong case was made for setting up An Bord Pleanála as ministerial decisions made in the past, even though they may have been legitimate and made for good reasons, were controversial for obvious reasons. Successive Ministers came under pressure from many sides, not necessarily from pals but perhaps relations of pals of the Minister of the day. In a very high percentage of the cases prior to the setting up of An Bord Pleanála, Ministers were subjected to political pressure of one kind or another and the same may happen in this instance. Granted, fewer cases will come before the Minister who stressed that point at some length, but if only one person has been unjustly treated it is only right that we give this measure due consideration.
I ask the Minister between now and Report Stage to consider something between what Senator Naughten is looking for and what is contained in the Bill; in other words, a body which would decide on applications to take the pressure off the Minister in such cases.
If Opposition Senators push this amendment to a vote we would want to be quite clear on what we would be voting on. We would be taking powers from ourselves. Ministers, like the rest of us, are politicians. Senator McMahon made reference to An Bord Pleanála. We would only be talking about the expenditure of a couple of pounds if the cases were to be decided on by An Bord Pleanála.
However if legal proceedings have to be entered into we would be talking about an sum of £10,000. We have heard all sorts of lectures in recent times about justice for all kinds of cases. I am strongly opposed to this amendment and I will not participate or take part in a debate which seeks to remove the little power left with the Minister who is one of us. I do not care if he is a Fianna Fáil Minister, a Fine Gael Minister or a Coalition Minister; I will have respect for him and give him the credit he deserves at all times in relation to any judgment he may have to make in the future.
I beg Senator Naughten and his party to pull back from this amendment because, what we are talking about is the handing over of the little powers left with politicians to High Court judges. We have heard lectures during the past few weeks on where power should lie in relation to cases we are not supposed to refer to now. However, I have said it now, and so be it.
Senator Howard stated he would have said more if he was on this side of the House but fair play to him, he nearly said it. I am a bit like Senator Howard, if something is right it is right, and if it is wrong it is wrong. I beg Senator Naughten to pull back from this amendment as we should hold on to the little power we have left and trust our Ministers now and in the future and not hand over these powers to High Court judges.
Senator McMahon has alleged that I want to dispense with An Bord Pleanála. That is not the case. I always supported the setting up of An Bord Pleanála who are completely and totally independent. In my opinion, all Ministers for the Environment have been very responsible. The Minister in deciding on applications will not decide on the amount of compensation to be paid; rather it will be decided on by agreement or at arbitration. Common sense will have to prevail.
What about the ordinary person living in Limerick, Offaly or Ennis who does not have the financial resources to take a case to the courts? It is not my intention to refer to the legal people in any shape or form but if a person goes to a solicitor in the morning to tell him that he has to take the case to the High Court we know what he will say to him. He will say, "Do you know the cost involved?" He will not thank him for it. The poor unfortunate individual down the country has not got the resources. The restrictions imposed under the Bill on the payment of compensation are very strict. I could see ministerial action taking place only in very exceptional cases and the records verify that since 1963. In the constituency I come from, if I were to allow a decision like that to the High Court, they would say I lacked judgement. I know Senator Naughten does not want that to happen.
I appreciate the manner in which the debate has taken place on this section. It has been a very constructive and most interesting debate, all the Members of the House saying how they saw things. That is why I am reserving that function for the Minister. I want to protect the unfortunate individual who has not got the financial resources. I would be failing in my duty if I did not do that. I am a politician and I never deny that. Whatever legislation we put through, it is always in our interest to safeguard the public.
Senators may ask where is the planning objection to An Bord Pleanála? There is very minimum cost involved in that but High Court costs are very high.
The Minister is talking about substantial developers. He is talking about five and six figures. Nobody would go to the court unless he had a good chance of succeeding.
Yes but what about a person who might be in a small way, just building a house possibly? Where would he be? The history of the 1963 Act shows that the Minister of the day intervened only in these cases.
The Senator's Minister.
I did not want to say that because I wanted to keep that out. I do not want to go down that road——
That thought did occur. The Minister was very generous in giving the years.
One of the cases involved a single house. The Minister of the day — I will not contest his opinion — thought it was unfair. If that Act had included the proposed amendment the case could not have been taken to the High Court. I would ask the Senator to think very hard before pressing the amendment. For the reasons I have outlined, I cannot go down that road. I would like to be as helpful as I can. I am being helpful in what I am saying. There is no man who understands the planning legislation more than I do because I have been through the mill on this. I have been introducing Bills and understand the situation very well. I would like to be as accommodating as possible because I have a high regard for Senator Naughten.
I will be very brief because I do not want to be repetitive. I must reply to a couple of points that were made, particularly by Senator Honan. I pointed out when I started to discuss the amendment that I had absolutely no doubt that if this Minister was making a decision under this Bill he would carefully examine all the facts and figures before him. I also said I had absolutely no doubt that any other Minister for the Environment would do the same. I did say they were open to allegations in cases of controversy and that is what I am concerned about. Whether that be one case over 20 years or two cases over 20 years, it is one or two too many in my view. That is why I am extremely anxious that this provision should be included in the Bill.
The Minister has explained at length his concern and the financial implications and has rightly pointed out that it may be just one dwelling house — it is quite possible — although it is more likely to be much bigger developments. I would also point out to the Minister that one of the things that has crept into our legal system over the past number of years is the principle of no foal, no fee. It is not abnormal nowadays for the legal people — solicitors, barristers — to take a case on the basis that if they win they are paid; if they do not win they are not paid. I believe there would be adequate safeguards there to protect the individual. My concern is that some Minister acting sincerely and genuinely on the information before him, would find himself subject to public ridicule because of a decision he took, maybe in the case of a party supporter, but, of course, he took the decision having regard to the evidence in front of him. That could be any Minister. It could be a Fine Gael or a Fianna Fáil Minister.
It could be yourself.
In time. That is one of the things we have to be concerned about. As Senator Foley pointed out — and the Senator is a Member for whom I have the utmost respect — this is the key to the Bill. This is an opportunity for the Minister to take politics out of decisions on compensation. I recognise that the Minister will not be deciding on the amount of compensation but as to whether compensation should be given in a particular case. There are a few other things I would like to say but I realise we have discussed the amendment at length.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 30; Níl, 17.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Cullen, Martin.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- Ó Cuív, Éamon.
- Fitzgerald, Tom.
- Foley, Denis.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McCarthy, Seán.
- McGowan, Paddy.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G.V.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Harte, John.
- Hederman, Carmencita.
- Howard, Michael.
- Jackman, Mary.
- McDonald, Charlie.
- McMahon, Larry.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Ó Foighil, Pól.
- O'Reilly, Joe.
- O'Toole, Joe.
- Raftery, Tom.
- Ryan, John.
- Staunton, Myles.
Tellers: Tá, Senators Wright and Fitzgerald; Níl, Senators Howard and O'Reilly.
Question declared carried.
Amendment declared lost.
Section 14 agreed to.
Sections 15 and 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
I want clarification on section 17. My understanding is that a planning application is submitted; plans are prepared and then it does not succeed in getting through the system. From reading the subsection I get the impression that preparation of plans for an unsuccessful planning application is an allowable cost in compensation. Am I correct in that? I understand that the actual cost of preparing the plans — architects' and engineer's fees and so on — in the event of the application being unsuccessful is an allowable cost in claiming compensation. Am I interpreting the subsection correctly?
It may be where permission is being revoked but the general position in regard to that is that you have your own plans. Where compensation applies that would be taken into account, that is, if it did apply.
Question put and agreed to.
Sections 18 to 24 inclusive, agreed to.
SECTION 25.
I move amendment No. 5:
In page 15, to delete lines 44 to 48 and in page 16, lines 1 and 2, to delete subsection (3) and substitute the following:
"(3) (a) The owner or occupier of any premises within the district of a sanitary authority shall be entitled to cause his drain to empty into the sewers of that authority subject to the following conditions:
(i) that he applies to that authority in the prescribed form and receives permission to do so;
(ii) that he pays the contribution required by that authority for making such a connection; and
(iii) that he complies with the regulations of that authority in respect of the mode in which the connection between such drains and sewers are to be made and with the directions of any person who may be appointed by the authority for the supervision or inspection of the work.
A sanitary authority may refuse permission for such a connection if, inter alia, the existing capacity in a sewer has been designated for the drainage of an area zoned for development in the development plan made in accordance with Part III of the Local Government (Planning and Development) Act, 1963.”.
What I wish to have included in the section is self-explanatory. In view of the general wish of the House to complete Committee Stage today I will not delay the House.
This amendment would replace subsection (3) of section 25 dealing with sanitary authority sewers but would leave the remainder of that section unaltered. Subsection (3) as it stands already provides that there will not be an entitlement to connect to a sanitary authority's sewer without the authority's consent and that this consent may be given subject to such condition as the sanitary authority consider reasonable. Accordingly, I do not believe that paragraphs (a) (i) and (iii) in the Senator's amendment add to what is already in subsection (3).
Amendment, by leave, withdrawn.
Section 25 agreed to.
Section 26 agreed to.
FIRST SCHEDULE.
I move amendment No. 6:
In page 17, in Rule 2 (a), between lines 9 and 10, to insert the following subparagraph:
"(i) the actual price paid for the land where the land was acquired within 6 years of the claim for compensation being made, or where the land was received by way of an inheritance within the aforesaid 6 years, the valuation of the land on the date of death of the deceased from whom the land was inherited.".
Again, it is clear what is intended by the amendment and I would just ask the Minister to comment on it.
This amendment would require the property arbitrator in determining both the antecedent and subsequent values of land to have regard to any price paid for the land within the previous six years and also in any valuation for debt duty purposes within the same period. I consider that this last aspect is adequately catered for in paragraph 2 (c) of the First Schedule. This provides that all returns and assessments of capital value for taxation made or acquiesced in by the claimant may be considered. The first part of the Senator's amendment would not be necessary. The arbitrator's basic terms of reference have already been set by paragraph 1 of the First Schedule and they are to operate on the basis of open market value before and after the adverse planning decision. The same principle will be relevant to this system of open market valuation. It can be said in a general context that the valuation as it operates is fair under the arbitration procedures.
Amendment, by leave, withdrawn.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
I have two queries on the First Schedule. Paragraph 2 (c) reads:
"All returns and assessments of capital value for taxation made or acquiesced in by the claimant may be considered".
I want an explanation as to the effect on compensation and capital taxation where that is involved.
I also want to raise a question on the next paragraph 3 (1). It reads:
In assessing the possibilities, if any, for developing the land, for the purposes of determining its antecedent value, regard shall be had only to such reasonable possibilities as, having regard to all material considerations, could be judged to have existed immediately prior to the relevant decision under Part IV of the Principal Act.
I find it hard to understand the wording, "regard shall be had only to such reasonable possibilities as having regard to all material considerations, could be judged to have existed immediately prior...". I cannot understand that because whatever possibilities existed went out the window when planning permission was refused. What does this mean?
It will be open to the person or persons concerned to put that forward at arbitration. I am getting into another area and the Cathaoirleach may not allow me but, under the Finance Act there are provisions for a write-off and claimant's expenses will be taken into account under that Act. Expenses incurred in regard to arbitration where that may arise will be taken into account in that respect.
The other question I asked was about reasonable possibilities. There are no possibilities once the refusal has taken place.
It is the existing value.
Question put and agreed to.
Second Schedule agreed to.
THIRD SCHEDULE.
Amendment No. 7 not moved.
Question proposed: "That the Third Schedule be the Third Schedule to the Bill."
Can the Minister explain paragraph 12 which says:
Paragraph 11 shall, subject to paragraph 13, not apply in a case where a development objective for the use specified in paragraph 11 applied to the land at any time within the five years immediately prior to the date on which the relevant application was made for permission under Part IV of the Principal Act to develop the land...
In all cases where land has been zoned, rezoned or dezoned from residential, industrial or such purposes to agriculture — in other words where land is reverting to agriculture — is compensation payable in all such cases?
Provided the same owner is involved.
Where a property zoned for residential or industrial purposes is dezoned — I am not sure if I am using the proper term — by the local authority for agricultural purposes is compensation payable?
If he bought when there was zoning in the last five years it would apply. Where there was zoning in the previous five years before he became the new owner, compensation would apply.
Compensation would apply, even for a new owner?
Provided the zoning took place in the previous five years.
If the land does not change hands, compensation will still be payable?
He has to be the same person and he must have had the land within the previous five years. Where it is going into zoned ownership he would be entitled to compensation.
I am not clear on this. He would have had to own the land for five years?
The exemption is made in paragraphs 12 and 13 and is only for landowners whose lands have been down-zoned, that is from development to non-development zoning. By virtue of these paragraphs compensation will not be excluded on zoning grounds where the land had a zoning in the previous five years with which the development proposal would have been compatible and the person claiming compensation acquired his land interest before the new restrictive zoning came into operation or was formally notified in draft by the planning authority.
I take it that, irrespective of whether he has purchased the land within five years or has been the owner of the land all the time, he would be entitled to compensation.
Yes.
Question put and agreed to.
Fourth Schedule agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
My only concern is to put on record that I tabled an amendment, which I pressed a vote, with regard to who should have the final say as to who is entitled to compensation. I regret the Minister did not accept my amendment. I regret that it was not included as part of the Bill.
I would like to thank the Minister for coming here and taking the Bill.
I want to thank Members of the House for their co-operation. We had an interesting debate and it covered a wide field and a difficult area. I appreciate all the views that were expressed.
Question put and agreed to.