I would like to correct one small error which I made yesterday. I was speaking about a reference in which my local authority and my residents' association were involved — whether windows were an exempted development or not and I was in error. That particular reference was taken by the local authority, but everything else I said is correct. It still has not yet been decided after, I think, about 15 months; I did not check the exact date, but it is between one year and 18 months. The one the residents' association did take was a reference to bed and breakfast because the planning authority simply would not take the reference and, in that case, the residents' association took it. I just wanted to clear up that point I made yesterday.
Speaking yesterday about appellants and third parties only having a month from the date of the appeal to make their case, I was trying to make the point that this is genuine. It may not be clear to those who are not regularly involved in trying to present information, whether at an oral hearing or in writing, that this is not something you can do quickly; it takes time. One of the points I want to make — if I did not make it already — is that my local authority publish the lists of their decisions every week but other local authorities only publish them every month.
When investigating this, I was told that Wicklow County Council sent the January list of the applications and the appeals to An Taisce, one of the four prescribed bodies which is obliged to take these matters seriously on 7 February. As I understand it, if a person was interested in an application that was on the list and an appeal had been made on 2, 3, 4, 5, 6 or 7 January, the time they received the information from the local authority, they would be too late. I would be glad if the Minister could clarify the issue because I only know what my local authority do. They bring out their lists regularly, and I have no complaint with that.
I understand there is no obligation on a local authority to issue such lists and some local authorities do not do so. All I know is that some local authorities issue lists weekly, others monthly. I am suggesting that the local authorities should be obliged to issue a list and there should be a legal obligation on them to make this information available because it is unrealistic to expect an organisation like An Taisce — a voluntary organisation with only two full-time employees and I do not think it gets a Government subsidy — to ring the relevant local authority every day asking if an appeal has been lodged in a certain way in order to get the information as soon as possible to comply with the one month provision. I believe that section will have to be looked at again. I am not a person who is in favour of imposing further obligations on local authorities. I am of the school that believes local authorities can do these things if left to their own devices.
I would like also to ask what provisions are made during a postal strike. How do people get the information to the local authority? I know we have couriers, but it is too expensive to send post from Kerry or Donegal to Dublin by courier. That issue should be looked at again and we should not impose this obligation on third party appellants. The appellants may be big developers and I could see them having a real problem here because they may need to get a lot of information about a major development they have in hand. I believe they too have to be considered. I am sympathetic to and in favour of making life easy for developers because I am not anti-development; I am very enthusiastic about good development which I believe it is very important.
I will be putting down amendments asking that there be a relaxation in the expiration of the appropriate period, whether it is 14 days or a month. I believe the local authority must have the information within 14 days from the time the request is sent out. I asked the Minister to change that to the time the request is received by the local authority. This is very difficult to understand unless one has had experience of how a voluntary organisation, a developer or anybody else deals with the period between taking an appeal and lodging the appeal.
I very often had the experience of going with somebody to a hatch in the planning department to look for information on the file and it may not be there. I am not sure if there is an obligation on the local authority to make information available under this Bill. Would there be any problem about making copies available to all sides? I am speaking about copies not only of the relevant documents but of some of the plans of the elevations. I have been told there is a copyright problem here and we cannot do it but that does not stand up. I know of people who simply take a piece of tracing paper, lay it over the plan and mark it out so that they can come back and discuss it with their local residents' association.
It is all part of encouraging people to be responsible and not to take the attitude which I was speaking about yesterday where we are against everything. As I said yesterday, the first thing that is important is for people to be able to get the information and to have the correct information and as much of it as possible. The more the Minister can do to facilitate that the more he will be helping people to enter into a partnership with the planning bodies and the prescribed bodies and the local organisations so that they will work together instead of being at loggerheads.
I deplore and detest any group, whether they are voluntary or otherwise, who enter into confrontational situations. I do not believe that anything is achieved by that. I was wondering if it would be possible to provide that all those involved would get from the local authority copies of the material which has been lodged so that they could give the proper consideration to the issues involved in the preparation of an appeal.
There is another matter that I think is very unfair and I find it very difficult to see how it will work. Originally appellants were not allowed to put their toe in the door by saying: "We are appealing this" and sending in their money. They had to have the whole case in. Then there was a court case where the court held they were entitled to put their toe in the door to keep the door open for an appeal and to follow on with the grounds of the appeal and also in the same way to ask for an oral hearing. If they get the oral hearing they can go to the oral hearing armed with all the information and research they have done ready to fight their appeal at the oral hearing. As I understand it, in this Bill they have to say they are going to lodge an appeal, they have to send in all the information and ask for an oral hearing all at the same time. I do not have any great objection to that. I know there was a problem about people saying they were going to appeal and then not sending in the grounds. Many responsible associations and groups tried to get in appeals as early as possible but I think the Minister's making it very difficult and extremely unfair by saying to them to send in all the grounds for the appeal, to do all the work, to get it all typed out and then they may discover they are going to get an oral hearing. I would like clarification on that because it seems to me to be a very strange way of proceeding. It is certainly not the way things were done previously.
I said that for a developer also who must state all the grounds for appeal a month is too short unless it is a very simple straightforward case of a domestic extension. That applies also to the local authorities who have only 14 days to submit their information. They are in the same position, they have to do a lot of work and many decisions have to be taken when they are involved in an appeal. It is also quite difficult for them. I think it will result in what the Minister and his Department seem to be hellbent on which is speed at all cost as opposed perhaps to the quality of the information on which these decisions are to be made.
The worst feature of this is in section 4 (3) where the Minister has ruled out the possibility of writing in again once a person has written in and stated they want an appeal. We know they have to give the grounds for their appeal and I presume at the some time they have to say they want an oral hearing. If they discover they have made a mistake, and everybody can make a mistake in this life, they cannot write in again. I wonder is that in breach of a person's constitutional rights? It is all speed, speed, speed. If they forgot something and they get it in on the last day of the month, then that has to be circulated to the other parties but all the pressure is being put on everybody except An Bord Pleanála. Everybody is expected to send in their information. However, An Bord Pleanála has three months minimum, and there is the clause where if they feel they cannot deal with the matter in three months they can take as long as they like.
I am amazed that section 4 (3) got through the Dáil, I reiterate that I am also concerned about the effect on a developer. He may have some major development like Irish Life on George's Quay or something like that. He sends in the grounds of the appeal but he forgets to send in one document or realises there was something that had not come to his attention which he cannot send on. Is what is proposed in section 4 (3) reasonable or just? For a developer there are millions of pounds at stake. The poor unfortunate third party person or An Taisce have no money at stake. If the developer went to the court and stated he had made some error or that some unfortunate secretary had left out the documentation and that the matter was not now going to be considered by the board, I do not think that the courts would uphold that. I know that the board, if it wants some extra information, can ask for it. How is the board going to know that this information was left out or that Irish Life or whoever was involved did not send in all the data? Because if Irish Life writes a second letter to tell them about this the board are precluded from reading the letter. It is as simple as that. I do not see how the board is going to know about it. I think it is a breach of a person's fundamental rights and that a case will be taken on it.
Residents' associations are all voluntary organisations. Let me give an example of my own very fine residents' association which has been in existence for 25 years and has taken a very responsible attitude. There is a central committee with a chairman and secretary and because we believe in subsidiarity and in local democracy we have subdivided the committee into five smaller areas — the Waterloo area, the Wellington area, the Dartmont area and so on, and each with their own committee. If, for example, the residents' association decides to appeal a decision in Burlington Road — which is in the Leeson Street branch area — and the Leeson Street branch have decided to appeal it and are preparing their case, and the chairman of central branch dealing decides this is very important and in a letter stating the case as they see it, what will happen when the letter is received from the secretary of the Leeson Street branch? Will that not be acceptable? From my reading of the Bill, that will not be acceptable.
What would happen if somebody in the area wanted to prevent our residents association from making an appeal and sending in the grounds, wrote purporting to be on behalf of the association? In that case the residents association would never have an opportunity to appeal because an individual who lives in the area might be a member of the association. Is it too Machiavellian to imagine that that could happen? I do not think so when you think of what is at stake for the major developers. A major developer might find a resident sympathetic to his point of view and by writing sooner than the association would foil the residents' appeal. I would like that point to be looked at very seriously and to be clarified because I can see that happening — and I have not a particularly Machiavellian mind, alas. I wish I had because it would be helpful in politics. If I can see that pitfall, imagine what a more devious person could see. That is something I am extremely concerned about and which I feel will have to be looked at.
If the Minister can assure me that I am incorrect about that I will not continue. I think this section is a breach of natural justice and a case could be taken on it under Article 43.2 of the Constitution.
I would like to know did the Minister consider the question of making internal reports available to members of the public, and what about the inspector's reports. As regards making internal reports available the EC Council Directive 90/313/EC of 7 June 1990 on the freedom of access to information on the environment says: "Considering the principles and objectives defined by the action programmes of the European Communities the environment of 1973 ... and more particularly the action programme of 1987 which calls in particular for devising ways of improving public access to information held by environmental authorities..." In line with that would the Minister not consider that all these internal reports between Departments should be made available to the public in the same way as inspectors reports? Under section 5 (1) these reports are only available, when appealed, to the appellant. I am confused about that section but will come back to it at a later stage.
On the question of the public notice, I outlined some of the problems there. Did the Minister consider the question of having all planning notices appear in one newspaper once a week on the same day? The current situation is that an applicant may advertise on site or in any newspaper of his choice; it may be a national newspaper but I am not certain about that. I do not know whether it can be in the local newspapers. I know Wexford County Council recommended that notices should be displayed on site as well as being published in the newspapers. Did the Minister think of writing that into the Bill? It is not a particularly onerous obligation to impose and I think it has merit if you want to involve people rather than trying to exclude them from the public participation in planning. It is advantageous that people should know about this and it should be made as easy as possible for them. Did he consider the possibility that the local authority might be made responsible for publishing the notice in the newspaper at the applicant's expense? I do not see that that would cause any great difficulty and this would allow the local authority to publish all the notices in newspapers on one day each week. It would also get over the other problem I was speaking about, which is that the planning authority should be obliged to issue a list.
If the local planning authority not only advertised the list of applications, which they would charge to the applicants but also advertised the list of their decisions and the list of appeals lodged, that would get over the problem of bodies and local people not knowing that on such and such a day and in a particular newspaper they could get all the decisions for the week.
Many notices appear in the newspapers which are not correct. Perhaps they do not adequately describe the site and, in these instances, the applicant has to rephrase the notice and insert it again. That problem would be got over as well because the local authority could be responsible for doing that.
When an applicant receives planning permission and there are conditions attached sometimes these conditions oblige the applicant to enter into discussions with the authority on how these conditions will be fulfilled. That can go on behind closed doors and the public or a third party, even if they were appellants, as far as I understand it, are not necessarily privy to what goes on. That needs to be clarified. I have no objection to it happening because one cannot be too cut and dried about things. If the matter can be resolved by the Appeals Board putting in a condition, the developer can come back and comply with that. In many instances the developer can comply with the condition without the knowledge of people in the locality or without the knowledge even of another objector. They are not obliged, currently, unless the local authority require it my means of additional information, to submit drawings to comply with these conditions. It would also help enormously with enforcement because later on when the building is completed and it is apparent that the condition has not been complied with, there is often a grey area there because there are no precise drawings.
Section 27 of the 1963 Act relates to the retention of structures already built. It has always been clear to me from the first sentence of that section that it was intended to be a transitional measure when the Act came in 27 years ago as to allow people who had put up a building to get their house in order, so to speak, after the Act came into force. It is extraordinary that that section is still operative. It is still being used by people to obtain retrospective permission for structures already partly or completely built before a planning application is submitted.
The planning committee of Dublin City Council have written to the Minister's Department objecting to the fact that people can go ahead, put up a building or carry out a development of relatively substantial significance without getting planning permission. Once the development is well under way, probably the planning inspector comes to look at what is going on. They keep building faster and faster to be sure that they get as much done before the local authority try to stop them. They get as much building done as they can and then the developer — if may be just somebody building a house, a factory or anything else — puts in an application for retention.
Will the Minister clarify if it was ever intended that this loophole should be left there? Our city council have contacted the Minister's Department about this because we now see a situation where more and more developers are building first and then looking for retention. It is time for that loophole to be removed and for a firm message to go out, that the local planning authority, backed by the Minister and this Bill, are determined and are genuinely committed to the idea that developers cannot come looking for retention.
Of course, I understand there may be a situation where, for example, a person has built a small building and perhaps, unknowingly, has done something incorrect and of course we want to be able to give them the leeway to rectify the matter. However, that is not what is happening. It is being used by developers to stymie and to frustrate enforcement action by local authorities against unauthorised development. The Minister should look at the figures for development control surveys that were carried out by An Foras Forbartha which were very illuminating and frightening. In 1986 the Environment Research Unit looked at this retention problem and confirmed that it is something which is escalating rather than diminishing. It was intended initially to cover the transition prior to the 1963 Act and post-1963 Act. It is hard to imagine that somebody who carried out a development prior to 1963 would be looking for retention now. That is not what is happening. They are going ahead and carrying out the development because they know that once the development is carried out it is very difficult for the local authority to act. How many of us here could quote a situation where somebody was made to undo a development? We had the famous case of the Central Bank. There is one instance I can remember, a joyous occasion, where somebody in Terenure, after nine years of struggle by the enforcing section of the corporation, had to take a house down and told he would go to jail if he did not. I am not at all sure that that person took the house down as I did not follow up the case.
The retention problem is extremely serious. In 1983 retention applications represented 10 per cent of the total number of planning applications made to local authorities. By 1986 retention applications had risen to 12 per cent of the total. I suspect, because I do not have the figures, that if you looked at that figure in 1991 you would find that percentage had risen further. If the Minister and his Department are not prepared to close that loophole it is difficult for me to believe in the bona fides of the Ministers determination to tackle unauthorised development.
Words are easy. It is easy to bring out glossy magazines from the Department which say that we are very good about the environment and to send another lovely glossy magazine off to Rio de Janeiro saying the good things we are doing. I am not criticising or belittling those actions, provided they are backed up by the real thing and the real thing is, have the Minister and his Department the determination to close this loophole which is a scandal and which is not something which should be allowed to continue? Is there a provision in the Bill which will close this loophole? The Minister might say we have increased the fines for illegal development but the Minister knows how little that means.
If people carry out unauthorised development and did not have this loophole, they would have problems I presume with the conveyancing laws and when they came to sell the value would be greatly reduced because the planning file would not be in order. That would be a real financial incentive to those people who become involved in unauthorised development. The present situation, where there are no legal or financial restraints on development by retention, means it is a very profitable form of development for those who indulge in it at the expense of those who abide by the existing planning system. I hope the Minister will give us some good news on that and that we will be assured he intends to tackle that situation if it has not been done already.
I am confident the Minister will consider the amendments proposed. I ask him specifically and his officials to believe that any amendments I put down are not to frustrate the passage of this Bill, which I welcome, or indeed to drag out things but that they have been put down in an effort to improve the situation. If the Minister cannot give us some joy on the question of the limit of a month and on an appellant being allowed to write in once and never allowed to follow up with anything else, would he consider, in the case of an appeal where there is an EIS involved, which must complicate the thing, making an exception and put them into a slightly different category?
I find section 8 (3) to be totally unacceptable. It is really abhorrent to me. I would like the Senators present to have a look at it. We have talked about the submissions or observations by persons other than the parties and the fact that when you make these submissions to the board and the section goes on to state the conditions with which a person must comply. This will be of interest to Senator Conroy with his large vision of things and the very important role he plays in the European scene with regard to mining and development. The section states:
The provisions of subsection (1) (b) shall not apply to submissions or observations made by a Member State of the European Communities arising from consultations in accordance with ...
In other words, Irish people, An Taisce or any of these bodies are to be put in an inferior position in comparison with observations which are sent in by a member state of the European Community. I will not take that. I cannot see why we should be made second-class citizens. If there is some development on our side of the Border and effluent discharged will adversely affect the other side of the Six Counties, an Irish person who wants to comment and wants to make a submission will be bound by the provisions of section 8 while somebody from a member state of the European Community will not be bound by the section.
