To most people the mysteries of planning law and particularly planning appeals are daunting. Senator Fitzgerald has just indicated that. Very often considerable expertise is needed in advising whether, when and how to appeal. I, therefore, welcome this opportunity to discuss in general terms the whole issue of planning and development in this country.
It is true to say that the impact of planning legislation could scarcely have been envisaged in the comparatively far off days before the hallmark and revolutionary legislation of 1963. The Town and Regional Planning Acts, 1934 and 1939, represented the first comprehensive attempt to provide a statutory framework for the control of development in Ireland. By the sixties, however, it had become apparent that these Acts suffered from serious defects. In the first place, these Acts did not become operative in an area unless the relevant local authority adopted their provisions. In the second place, even if a local authority did decide to adopt these Acts, its statutory obligation to plan the development of the area was very loosely defined. In the event, only one scheme was actually prepared and that was the result of an order of mandamus which was made by the High Court in the case of the State Modern Homes (Ireland) Limited v. Dublin Corporation in 1953 which directed Dublin Corporation to produce a scheme under these Acts. In the third place, the powers of local authorities to enforce planning legislation were rudimentary and in practice they were very rarely used.
The Local Government (Planning and Development) Act, 1963, repealed the Acts of 1934 and 1939 in their entirety and established a far more comprehensive system. Planning was now to be of universal application and not merely at the option of local authorities. Each local authority was now under a statutory duty to prepare a development plan within three years — a set of guidelines for the planning and development of its area. Local authorities were given extensive powers to enforce compliance with the terms of planning permissions and to restrain unauthorised development. Thus from 1 October 1964, any developments so defined, that is any significant structural works or material change of use, required planning permission. Exemptions were provided in favour of agriculture, local authority projects in their own areas, development by State authorities and other relatively minor works and uses to be set out by ministerial regulations.
The overlord of planning and development established by the 1963 Act was the Minister for Local Government, now the Minister for the Environment. He had power to make regulations under the 1963 Act, to decide planning appeals and to determine whether a proposed development was or was not an exempted development which did not require planning permission. While it was the intention of the 1963 Act that the Minister should exercise general supervision over planning policy, in practice it is true to say that he held the reins lightly and it was usually left to the local authority for each area to lay down and administer its own planning policy. The Minister rarely intervened except in the case of planning appeals which he was required to determine on its merits as if each application had come before him for determination in the first instance.
Thus, the 1963 Act achieved a major transformation in the history of Irish planning law by forcing all local authorities in this country to produce development plans and gradually, under its influence, there emerged an appreciation by the public of the fact that any sizeable building project and, indeed, many changes of use required planning permission and the consequences of not getting planning permission could be very serious. Thus in the words of Philip O'Sullivan, Senior Counsel, the author of Irish Planning Law and Practice:
Today's legitimate hypersensitivity to the needs of the environment is founded on the cornerstone of the 1963 Planning Act which, as amended and extended by four subsequent Acts, has provided an enduring contribution to civilised life in modern Ireland.
There were, however, two significant defects in the 1963 legislation. One had to do with the lack of teeth in the enforcement provisions of the 1963 Act and the second was that planning appeals were dealt with by the Minister for Local Government who was perceived, perhaps, as being too close to the political arena to carry out this function in a satisfactory manner. Thus the Local Government (Planning and Development) Act, 1976 was introduced to establish an independent planning appeals board called An Bord Pleanála. That Act also created a completely new enforcement procedure, the section 27 procedure, in regard to planning injunctions. The section 27 planning injunction was an overnight success and is a great tribute to the Minister who introduced it and to the Department. It enabled planning authorities and anybody interested to go straight to the High Court and get an injunction, just as in any other urgent and important matter.
Permissions under the 1963 Act were not subject to a time limit. As time went on, this became increasingly unacceptable and so, in the 1976 Act, the so-called withering process was introduced into our law for the first time. This provided that permissions would cease to have effect five years from the introduction of the Act or from the granting of the permission, whichever was the later. This provision, though necessary, did not work very well on its first introduction in the 1976 Act and so it was replaced by a more refined and staggered variation in the Local Government (Planning and Development) Act, 1982, which gave planning authorities power to extend the usual lifetime of planning permission as part of their decision and also gave a right to developers to have that period of time further extended if they had completed substantial works within the lifetime of the particular permission.
The fourth planning Act — the Local Government (Planning and Development) Act, 1983 — was introduced largely to improve the constitution and composition of An Bord Pleanála which was set up under the 1976 Act. Under the 1976 Act, the members of An Bord Pleanála were appointed by the Minister for Local Government. Public confidence in this arrangement remained hesitant, however, and it became desirable, therefore, to distance the board's membership from any political connotations or connections. Thus, under the 1983 Act, the chairman is now appointed by the Government from a short list of usually three people selected by a committee consisting of the President of the High Court and five other members who are representative of political affairs in this country. The 1983 Act also provides that the five ordinary members are to be appointed from persons selected by professions or organisations concerned with physical planning, environmental protection, the construction industry and socio-economic interests. The fifth planning Act — the Local Government (Planning and Development) Act, 1990 — is concerned with compensation. Once again the first attempt in the 1963 Act as providing compensation for adverse planning decisions had proved very unsatisfactory.
Awards were potentially crippling in a post-inflationary age when local authorities had a reduced capacity to raise their own finance. Rather than face high awards, the planning authorities preferred to give undertakings to grant planning permission to claimants who had been refused permission for good planning reasons. However, these undertakings, as we all know, were contrary to the spirit of good planning and development and eventually the Supreme Court curtailed and restricted their scope. So the 1990 Act significantly reduced and curtailed the circumstances where compensation could be claimed whether in respect of refusals or grants which were subject to conditions. The 1990 Act also reduced the likely amount of awards by altering the rules of assessment.
A recent major feature is the environmental impact assessment legislation. This is now contained in two regulations which came into force on 1 February 1990. These regulations impose an obligation on any developer, including local authorities but excluding the State, who are carrying out specific works, to prepare a statement on their likely impact on the environment. This statement must contain certain specific information, it must be published and submitted to public comment and it must be assessed by the appropriate authority.
In summary, therefore, these Acts of 1963, 1976, 1982, 1983 and 1990, the regulations made thereunder and the environmental impact assessment regulations constitute a comprehensive and effective code which has been developed inside a mere three decades and which is being supplemented and interpreted by a detailed and developing body of Irish case law. I would suggest that the planning legislation in this country and the regulations made under it are as good as any in the world. I think our departmental officials and our practitioners and town planners are to be congratulated in this regard.
I hope that this legislation, the Local Government (Planning and Development) Act, 1991, will further improve and enhance our physical planning system while, at the same time, ensuring that a fair balance is struck between the needs of the developer, on the one hand, and the rights of the objector, the genuine objector, on the other hand. I hope that this legislation will lead to a better ordered and more expeditious appeals process without compromising, of course, the rights of genuine objectors and the ability of the planning process to subject planning appeals to rigorous, fair and objective scrutiny and examination.
I agree with the Minister for the Environment that one of the key tests of the effectiveness of our planning process and system is its ability to give final and conclusive decisions on development proposals within a reasonable time frame. While the need for rigorous scrutiny and examination of proposals is beyond doubt, I think it is true to say that a developer is legitimately entitled to expect that he will receive a final and conclusive decision on his proposal within a clearly defined period. Undue delays in the planning process cause understandable frustration for developers and can lead to the abandonment of worthwhile projects with consequent loss of investment and employment opportunities.
The need to avoid delays in the planning process is all the greater in a country such as Ireland because of the urgent and critical need for substantial new development in tackling our very serious and pressing unemployment problem. In addition, undue delays in our planning system or any perception that our planning system and process is ponderous or dilatory would put us at a serious disadvantage in seeking to attract internationally mobile projects.
However, this Bill as it stands is potentially unconstitutional. It seems to me to infringe some of the principles of constitutional and natural justice and could, indeed, worsen our planning process. While I welcome, in principle, any attempt to tighten up the timescale for planning decisions and appeals I question the taking of short-cuts in our planning system. This Bill is seriously defective in that it does not commit the necessary staff and other resources to An Bord Pleanála to ensure that deadlines are met and therefore, many time limits could be reached without the board having had sufficient time for proper analysis and scrutiny of an appeal.
I am amazed that the explanatory memorandum to this important Bill contains the following bald and unrealistic statement. I quote:
The Bill will not entail additional staffing or financial requirements for An Bord Pleanála.
It seems to me that the appeals process cannot be speeded up simply by the enactment of legislation. If the Oireachtas legislates that the appeals process has to be speeded up, if the Oireachtas decides that a decision has to be made, or that there is a statutory objective that a decision has to be made within four months but the provision for additional staff and resources is not made, then it seems to me that that could very well end up in bad decisions being made and bad planning being introduced into this country. On the one hand, it could lead to a substantial increase in the number of refusals of genuine planning appeals while, on the other, it could lead to the granting of planning permission by default due to the lack of adequate staff and resources to carry out proper analysis of a proposal within the prescribed time limit.
That cannot be the intention, I would suggest, of the Houses of the Oireachtas nor should it be the effect of this legislation. Moreover, the rights of objectors could, in many circumstances, be restricted and curtailed by certain provisions in this Bill. One of my principal concerns about this legislation is the tilting of the balance in favour of developers and builders who quite understandably want to get quick, expeditious and conclusive decisions and away from the interests of the general public and local communities and residents' associations and even bodies such as An Taisce, who were, I believe condemned here this morning by Senator Fitzgerald.
Certain provisions in this Bill, particularly sections 2, 3 and 4, will have the effect of making it more difficult for members of the public, third parties, residents' associations, local communities, individual citizens, An Taisce and other such bodies to lodge an appeal against an application with which they are unhappy. My concern is that this Bill will make it easier for the well resourced company, the well resourced individual, the well resourced organisation, to pursue their interests while making it more difficult for the ordinary citizen or the poorly resourced residents' organisation to pursue their interests.
Irish planning law differs substantially from the United Kingdom planning law in that it is based on the philosophy that the public in general, as well as persons whose legal interests are affected, are entitled to participate in the planning process. This position is well summed up by Justice Henchy in the Supreme Court case of Stanford v. Dún Laoghaire Corporation in 1981. He stated:
The grant or refusal of planning permission involves three parties: the developer, the planning authority and the public. It is to be said that the exercise of this quasi-judicial function would be flawed if the public, one of the interested parties whose interests do not necessarily coincide with those of the planning authority were to be denied the opportunity of yielding forth interested persons, who could make representations or objections.
I am, therefore, concerned that good decision-making may be sacrificed in the interest of speed and that the statutory time limit of four months may be too short for the processing of many appeals. It is true that section 2 (3) will enable An Bord Pleanála at their discretion to extend that period where it is appropriate but we all know that more and more planning applications and appeals are becoming very complicated. For example, we are now in the era of environmental impact assessments and a much more professional approach is being taken to both planning applications and planning appeals.
One of my main concerns relates to the period of time and the procedure for making appeals. Under existing law article 36 of the 1977 regulations provides that an appeal shall (a) be made in writing, (b) state the subject matter of the appeal, (c) state the grounds of the appeal and (d) be accompanied by the appropriate fee. It was decided by the High Court in the case of the State (Walsh) v. An Bord Pleanála in 1980, and by the Supreme Court in the State (Elm Developments Ltd.) v. An Bord Pleanála in 1981 that an appellant in lodging his appeal need not state the grounds of that appeal at that time. In the Walsh case Keane J. stated:
The language of Article 36 is undoubtedly mandatory; but that by no means concludes the matter. The law has for long recognised a distinction between those parts of an enactment which may properly be regarded as imperative and those which are merely directory.
In the Elm Developments case, Henchy J. stated that the effect of section 17 of the 1976 Act was that the board may always treat the grounds lodged with the appeal as merely interim or provisional grounds, and essentially informative. Section 17 entitles the board in dealing with a reference or an appeal to take into account matters other than those matters which were raised by the parties.
Moreover, even if the appeal contains a full statement of the grounds of appeal, that statement is not conclusive as to the grounds that may be considered on the hearing of the appeal. The grounds of the appeal are not to be equated with the pleadings in court proceedings. They do not or cannot circumscribe or identify the issues on which the appeal will be decided. The reasons the courts have held that "shall", which is mandatory in language, means "may" in article 36 (c) shows their willingness to facilitate public participation in the planning process.
Under section 17 of the 1983 Act, where the grounds for the appeal are not stated at the time the appeal was lodged, the board may serve a notice on the appellant giving him 14 days to state them, and warning him that if he does not state the grounds within that period the appeal may be regarded as withdrawn. Under the new procedure, however, the appellant must lodge his appeal within one month and that appeal must state in full the grounds of appeal and the reasons, considerations and arguments on which these grounds are based. That is provided for in section 4 (1) (d). If the appeal does not comply with this requirement it shall be invalid, according to section 4 (2) (a).
This means that in future it will not be possible for an objector to write to An Bord Pleanála objecting to a planning decision and later submitting considered grounds and reasons for that particular objection. This requirement will, I believe, place local communities, residents' associations, bodies like An Taisce and ordinary individual citizens at a considerable disadvantage.
This Bill is also defective in that if fails to make any provision which would make An Bord Pleanála democratically accountable. The Minister for the Environment should make provision in this Bill for the setting up of an Oireachtas environmental committee of both Houses so that An Bord Pleanála will be subject to scrutiny not in relation to any particular decision but in relation to general planning policy, efficiency, balance and fairness. I also believe that the board's powers to initiate material contraventions of development plans which have been prepared and drawn up by local authorities should be removed.
Provision should be made in this Bill which would require publication of the board's inspector's report on each appeal that is made. It seems to me that in the presentation of this Bill an opportunity has been missed to clarify a number of issues that have arisen over the years, including the issue as to when does a planning authority give its decision. In the State (Murphy) v. Dublin County Council in 1970 O'Keeffe P. held that the planning authority gives its decision on the day it puts it in the post in accordance with section 7 of the 1963 Act. O'Sullivan and Shepherd, however, in their book point out that the Murphy case was based on an earlier English decision, which has since been distinguished and in Freeney v. Bray Urban District Council in 1982 O'Hanlon J. said obiter that the planning authority does not give its decision until the applicant receives it. Therefore, this matter should have been clarified in this legislation.
I wish to refer to two matters which I regard as of special significance. First, I welcome the provision in section 19 which was included on Committee Stage as the Bill passed through the Dáil to grant access to all parties to the Circuit Court in respect of injunctions against unauthorised development. In a speech delivered to the Incorporated Law Society dated 29 November 1986, Mr. Justice Ronan Keane, a former President of the Law Reform Commission observed: "I have no doubt that the section 27 machinery is highly desirable machinery. I think it has had an extremely salutory effect on unauthorised development and unauthorised use". Mr. Justice Keane added: "The High Court has an exclusive jurisdiction in this area. The Circuit Court has no jurisdiction for reasons which I don't follow". I, therefore, welcome this change in section 19 for access to the Circuit Court. I agree with the Minister that allowing this access — the Minister put it very well in his speech to this House — to the Circuit Court for section 27 injunctions will help to further enhance and improve the effectiveness of this injunction.
Secondly, I wish to refer to the very positive and constructive discussions that have taken place between the Department of the Environment and the conveyancing committee of the Incorporated Law Society in respect of time limits for planning enforcement. That committee comprised John F. Buckley, Patrick Fagan, Rory O'Donnell and Philip O'Sullivan, SC. In their memorandum entitled, Enforcement Procedures in Planning Legislation, they submitted that absolute and certain time limits of say five years should be introduced with regard to the institution of enforcement and kindred proceedings under the planning code and, as appropriate, the service of notices in connection therewith. The difficulties in the planning field which most frequently confront conveyancers — and indeed they are many — include those emanating from actual or possible breaches, uncertainties and lack of evidence.
That committee emphasised that attempts to achieve clarity and certainty in any given situation are greatly disadvantaged by the passage of time and by the fact that planning authorities often decline to make records back beyond five years available to solicitors and their clients. Frequently, the planning history of a particular property is not readily available. Breaches or perceived breaches include matters — often minor matters but serious matters for the conveyancers — such as extensions to and conversions of domestic dwellings, and the sale of secondhand houses and shops. In respect of use, it can sometimes be extremely difficult to establish the use over a long period of years to which different portions of a property have been put, particularly if internal works or rearrangements have been carried out which did not themselves require planning permission.
The approach made by the Incorporated Law Society to the Department of the Environment was inspired by the very significant difficulties obtaining as a result of time elements within the planning legislation itself. An ever increasing time limit running back to 1 October 1964 is likely to produce more and more insoluble problems and hold up the sale of property.
The committee, therefore, submitted that the imposition of absolute and certain statutory limitations on the timing of all enforcement procedures under the planning legislation was desired and this was the primary objective of their submission. In a similar vein, in the speech which he made to the Incorporated Law Society, Mr. Justice Ronan Keane made a number of observations: first, the all important feature from the point of view of application under section 27 is that there is no time limit and that in theory at any rate a person who erects an unauthorised structure or who makes unauthorised use of land is liable at any time, no matter how long it has been in existence, provided that it came into existence since 1 October 1964, to find that that structure has to be removed or the use discontinued; second, with regard to warning notices, the same procedure applies. There is no time limit; third, all this has created very considerable practical problems; fourth, the position whereby there are no time limits for the making of section 27 applications or the serving of warning notices is difficult to justify; fifth, whether one should follow the headline in relation to normal enforcement procedures and simply provide a five year limitation period in respect of section 27 and section 26 is a matter on which there might be debate, but he says, it is a possible solution; and sixth, this modest reform would not affect the proper operation of these sections but would avoid a situation which is at present capable of creating injustice.
I welcome indeed the statement and the assurance which was given by the Minister in his Second Stage speech to this House. I quote him in respect of time limits for planning enforcement. He said:
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.
I welcome this statement of assurance from the Minister. It is similar to legislation which has already been introduced in the United Kingdom for the capping of these time limits.
In conclusion, I wish this legislation well and hope it will achieve its objectives of enhancing and improving our physical planning system.
