I am pleased to bring this Bill before the Seanad.
The primary purpose of the Bill is to modify the legal framework for planning appeals so that An Bord Pleanála will be able to determine them in a shorter time than at present. The measures it proposes will improve the efficiency of the appeals process so that it will be possible for the board to determine virtually all cases within four months. It will ensure, at the same time, that this streamlining and speeding up of the appeals system is achieved without any diminution of the essential fairness and thoroughness of the process.
The Bill provides also for some changes to the provisions governing court challenges to the validity of decisions by planning authorities and An Bord Pleanála, the purpose of which is to facilitate the expeditious determination of such proceedings. It proposes, in addition, that there will be a substantial increase in the fines for offences under the Planning Acts and that it will be possible in future to seek orders under section 27 of the 1976 Planning Act against unauthorised or non-conforming developments in the Circuit Court as well as in the High Court as at present.
The physical planning system which has been in operation in this country for almost 30 years has, by and large, served us well. The thorough examination to which development proposals have been subjected has ensured orderly development and efficient and environmentally acceptable land uses. It is essential, nevertheless, that the process is kept under review to ensure that both its effectiveness and its efficiency are maximised.
An effective planning system should be capable of giving conclusive decisions on development proposals within a reasonable time frame while at the same time ensuring that the proposals are subjected to the necessary detailed examination. Undue delays in the planning process are not in anyone's interest; they can in particular cause frustration for developers and could, in the worst case, lead to the abandonment of worth-while projects with the loss of the investment and employment they would provide. It is essential, therefore, that we ensure that our planning system strikes the correct balance between the need for rigorous evaluation of proposals and for final decisions within a generally acceptable period. I believe that the measures proposed in the Bill will give us this necessary balance.
I would like now to explain the immediate background to the Bill. Some time ago a comprehensive review of the systems and procedures of An Bord Pleanála was carried out. This review led to various recommendations about the board's management and administration and these have largely been taken up by the board. However, the review also identified features of the existing legal framework within which the board operate which inhibit the speedy determination of appeals.
There has been a considerable improvement in the board's performance since the review was carried out. For example, between September 1990 and April 1992 the number of appeals on hands fell from 1,703 to 1,046 and the proportion of cases on hands for more than six months fell from 21.4 per cent to 3 per cent. This is a marked change for the better, for which the board is to be commended. At the same time, however, the time taken to deal with individual appeals is still not satisfactory. The truth of the matter is that the law as it stands at the moment will inhibit the achievement of further significant improvement.
As for the general approach taken in the Bill, some concerns were expressed when it was before the Dáil that existing rights of appeal would be curtailed. I should like to take this opportunity to assure Senators that no right of appeal against the decision of a planning authority will be taken away by the Bill. It will continue to be possible for any person to appeal to An Bord Pleanála against a planning authority's decision. All the Bill will do is to create a more orderly and effective framework for dealing with appeals.
The Bill's approach is to set out strict time limits for all stages of the appeals process. These time limits will be reinforced by a clear statement of the rights of participants in appeals concerning submissions to the board and of their obligations in relation to the timeliness and completeness of submissions. It is because of these changes that it is possible for the Bill to propose a statutory objective of four months for the determination of appeals by the board.
I would now like to briefly outline the Bill's provisions. Section 1 is a standard form of interpretation provision. Section 2 sets out the duty and objective of An Bord Pleanála in relation to the determination of appeals and the various other matters which it decides. These other matters, including references under section 5 of the 1963 Planning Act as to what is or is not development or exempted development, account for only a small proportion of the board's overall workload. The vast majority of cases coming before the board are appeals against planning authorities' decisions on planning applications. Accordingly the Bill, apart from section 2, is generally concerned only with such appeals.
Section 2 restates the general duty contained in section 4 of the 1983 Planning Act which requires the board to ensure that it deals with all appeals and other matters as expeditiously as possible. However, section 2, also sets an objective for the board to determine cases within a period of four months. The board will be expected to comply with this objective in all but the most exceptional cases. If, however, the board considers that it will not be possible or appropriate in a given case to meet the objective, it will notify the parties involved and inform them of the date by which it intends to give its decision. The board must then take all the steps open to it to ensure that it gives its decision by then.
The four month objective will not take effect until six months after the enactment of the Bill. This six month period will allow the board to adapt its procedures to meet the objective and to dispose of cases on hands.
Senators will have noted that the four month period is an objective rather than a strict time limit and that suitable provision has been made for instances where the board cannot comply with the objectives. I am advised that an absolute time limit would not be acceptable as it might prevent the full consideration of all the issues in a very complex appeal. The proposed objective goes as far as possible, therefore, towards placing a time limit on the appeals process. I might add also that the board's performance in complying with this objective will be monitored by my Department.
Various views have been expressed about the four month objective for the board. Some consider that this period is too short while others are of the view that a shorter period should be specified for certain types of appeals. I believe, however, that four months strikes the right balance and that it should apply to all appeals initially. If it emerges in the light of experience that a shorter or longer period would be more appropriate for a particular class or classes of appeal, I could then consider using the power under section 2 to provide for such a period by regulations.
Section 3 amends section 26 of the 1963 Planning Act under which appeals against planning authorities' decisions on planning applications are made to the board. Under existing legislation the applicant for planning permission is allowed a period of one month within which to make his appeal but any other appellant must appeal within 21 days. The Bill proposes to increase the appeal period for third parties so that everybody will now have a period of one month in which to appeal to the board. The fact that the third party appeal period is being increased is indicative of the even handed approach towards all interests in planning matters adopted by the Bill and demonstrates that there is no foundation for any suggestion that it will tip the balance in the planning process in favour of development interests.
Section 4 sets out the requirements to be met when appealing to the board. The most important of these is the requirement that an appeal must include the full grounds of appeal and the reasons, considerations and arguments on which they are based. As matters stand, an appeal can validly be made by submitting a statement of appeal in the first instance and forwarding the grounds of appeal afterwards. The interval between these submissions can be considerable and has led to delays in the determination of appeals. Section 4 is designed to overcome this problem by ensuring that an appeal must be submitted in full at the outset. Any appeal which is not accompanied by the full grounds of appeal will be invalid.
I am aware that some concerns have been expressed that a requirement to submit the full grounds before the end of the appeal period may be too burdensome for appellants. I am satisfied, nevertheless, that this provision strikes the appropriate balance between the rights of appellants and the need for conclusive planning decisions on appeals within a reasonable period. The one month period will, in my view, allow an appellant sufficient time to prepare a detailed statement of case and submit it to the board.
Sections 5 and 6 place new obligations on planning authorities which will facilitate the speedier operation of the appeals process. Section 5 requires a planning authority to make documentation relating to a planning application available to the public from the day of their decision on it. This will ensure that a person wishing to make an appeal to the board against the decision will have access to all the relevant documentation without delay. Under section 6 planning authorities will have to submit relevant documentation to the board within a period of 14 days of being notified of an appeal and is intended to overcome certain difficulties and delays that the board have encountered in this regard.
Section 7 regulates the right of the other party or parties to an appeal to respond to the appeal. The board will send a copy of the appeal to the other party or parties who will then have a period of one month in which to make submissions to the board. Section 8 deals with submissions or observations to the board by persons other than the formal parties to an appeal. It is well established in practice that such persons have a right to make submissions to the board but this right is expressly stated in planning law only for appeals involving environmental impact assessment. This section will, therefore, put the matter on a formal legal footing for all appeals and, in most cases, will require submissions to be made within one month of receipt of the appeal by the board.
Sections 7 and 8 prohibit the making of further written submissions except in the circumstances contemplated by section 9. This is because of the difficulties posed for the board and the delays which arise when they receive further submissions at an advanced stage in their consideration of an appeal. I am satisfied that this limitation is necessary for the effective operation of the appeals process and that these sections nevertheless afford parties and other persons a fair and reasonable opportunity to put their case to the board.
While all participants in an appeal will generally be allowed one opportunity to make written submissions to the board, it may be appropriate in certain circumstances to allow a participant the chance to make a further submission. For this reason section 9 empowers the board to request any participant to make an additional submission within a specified period if they think it appropriate in the interests of justice to do so. If a response to this request is not received within the period specified, section 11 will authorise the board to proceed with the determination of an appeal.
Section 10 gives the board power to ask any participant in an appeal to submit any additional documents or other information which they consider necessary for the determination of the appeal. This section will replace the existing provision contained in section 18 of the 1983 Planning Act. If the documents or other information are not forthcoming within the time allowed, the board under section 11 can then proceed to determine or dismiss the appeal according to the circumstances of the case.
Section 12 deals with oral hearings of appeals. It will replace section 15 of the 1983 Planning Act and incorporates a number of changes. I mentioned already that problems are posed for the board where further submissions on an appeal are forwarded to them when their consideration of the appeal is at an advanced stage. A similar problem arises from requests for oral hearings which are made at a late stage. To overcome this problem, the Bill proposes that an appellant who wishes to request an oral hearing must do so at the outset of the appeals process. A request by any other party to the appeal will have to be made within the period of one month allowed for making submissions or observations to the board.
The new section does not contain the Minister's power under section 15 of the 1983 Act to prescribe classes of cases for which oral hearings must be held, which has not been used to date. I consider that it is best left to the board to decide whether an oral hearing should be held in a given case by reference to the circumstances of that case.
Section 13 is essentially a restatement of section 17 of the 1976 Planning Act. It empowers the board to take into account matters other than those raised by the participants in an appeal. If the board proposes to take a matter of this nature into account they must notify the participants in the appeal and allow them an opportunity to comment on the matter.
The next three sections largely restate certain of the board's existing powers under the 1982 and 1983 Planning Acts which facilitate the speedy determination of appeals in certain circumstances. Section 14 empowers the board to dismiss appeals which they consider to be vexatious or frivolous. This power, although infrequently used, is necessary to ensure that the board do not have to waste time in dealing with appeals which have no proper foundation in planning matters. Section 15 enables the board to deal with appeals relating to conditions by reference only to those conditions. This ensures that the board do not have to deal with an appeal from first principles where it relates only to a condition or conditions attached to the planning authority's decision. Section 16 allows the board to declare an appeal, or an application to which an appeal relates, withdrawn if they consider it to have been abandoned.
Section 17 makes a number of provisions about the time within which certain matters relating to the appeals process must be done. It provides, among other things, that an appeal received by the board after the one month appeal period has expired will be invalid. However, if the last day of the appeal period falls on a day when the board's offices are closed, the appeal will be in time if it is received on the next day on which the board's offices are open.
Section 18 gives the Minister for the Environment power to make regulations prescribing certain procedural matters in relation to appeals and other matters coming before the board. Any regulations made under this section will have to be laid before this House and the Dáil for a period of 21 days in the normal way.
Section 19 of the Bill contains a number of measures amending existing provisions of the Planning Acts. First, section 82 of the 1963 Planning Act will be amended so that challenges in the courts of the validity of decisions by planning authorities or An Bord Pleanála can be concluded more expeditiously. Such challenges will in future have to be taken by way of application for judicial review, which is generally quicker than plenary proceedings. Before leave to apply for judicial review is granted, the High Court will have to be satisfied that there are substantial grounds for contending that the decision challenged is invalid. The decision of the High Court on challenges of this nature will be final except where it certifies that its decision involves a point of law of exceptional public importance. This will not, of course, preclude appeals to the Supreme Court on questions concerning the validity of any law having regard to the provisions of the Constitution and the section was amended in the Dáil to clarify that this is the case.
The second important provision contained in section 19 provides for the substitution of a new section for section 27 of the 1976 Planning Act. Section 27 relates to court orders against development carried out without the necessary planning permission or in contravention of the terms of the permission granted. The new section will allow access to the Circuit Court as well as to the High Court for orders against such development and fulfils the commitment in this regard contained in the Review of the Programme for Government, 1989-1993.
A further significant improvement made by the new section is the provision which will empower the courts to order land which has been subjected to unauthorised development to be restored to its condition before that development took place. Planning authorities have found the existing section 27 to be a very effective means of dealing with planning contraventions and I believe that the improvements in the replacement section will considerably enhance the effectiveness of this procedure.
Section 20 increases the maximum fines for offences under the Planning Acts. The indictable offences of carrying out development without permission or contrary to the terms of the permission or contravening the terms of a warning notice will in future attract a maximum penalty of £1 million compared to £10,000 at present. The maximum fines for summary offences will also be increased. I am sure Senators will agree that these increased fines will act as a significant additional deterrent to contraventions of planning law.
Section 21 provides for a technical amendment of the 1990 Planning Act. Section 21 of that Act provided for compensation in limited circumstances in respect of decisions by planning authorities on applications for consent required under Tree Preservation Orders. That section should have referred also to decisions of this nature given on appeal by An Bord Pleanála and this section of the Bill will insert the necessary reference to the board into the 1990 Act.
Sections 22 and 23 are standard provisions dealing with repeals and transitional provisions respectively. Section 24 is also a standard provision relating to short title, commencement and collective citation.
It is of critical importance also, of course, that there should be an efficient decision-making process at the planning authority stage. I have indicated previously that my Department have informed planning authorities that the greatest possible number of applications should be decided within the statutory two month period. Planning authorities have also been asked, in cases where additional information is sought, to decide such applications within a period of one month of receipt of the information. I would like to take this opportunity to assure Senators that I will continue to monitor the time taken by planning authorities to decide planning applications and that any action necessary to eliminate undue delays will be taken.
I would like to inform Senators at this point that I hope to bring forward on Committee Stage an amendment dealing with the time within which enforcement action can be taken in relation to unauthorised or non-conforming development. Some of the enforcement powers under the Planning Acts may only be used within five years of the relevant contravention but others are open-ended. I believe that these open-ended powers are unnecessary for the enforcement of proper planning and development and that their existence gives rise to serious practical problems, particularly for the property market. Accordingly, I intend to propose that a five year time limit will apply to the use of all planning enforcement powers.
This Bill is a clear indication of the Government's belief in the importance of an effective physical planning system and its proposals are a decisive response to the evident need for a redrawing of the legal framework for planning appeals. They will see to it that appeals can be decided within the reasonable period of four months without reducing the fairness of the process or taking away any right of participation in it.
I look forward to a positive debate on the Bill.