Local Government (Planning and Development) Bill, 1991: Committee Stage (Resumed).

Debate resumed on amendment No. 6:

In page 5, subsection (2) (a), line 3, to delete "four" and substitute "five".

—(Senator Hederman.)

Mrs. Hederman

We were concluding the debate on amendments Nos. 6, 7 and 9. As I said earlier, I did not expect the Minister was going to take amendment No. 6 on board and other speakers have put forward good points as to why less time is adequate; but with regard to amendments Nos. 7 and 9 a good case still holds. My comments about not being confrontational were intended to the extent that local communities and groups are concerned about the areas in which they live and their genuine and deep felt frustration that they are not in a position to influence the changes they see, many of which can be major and bewildering because the pace of change is so intense. I reiterate these points so that we can consider the Bill in the context of these criteria.

We must give people the opportunity to know what is going on. That is why I put down the amendment about the newspaper circulating in the area where all the applications could be listed together. If people know what is going on, have an opportunity to make their views known and if they feel their views are taken on board — even if they do not always get the decision they want — they can be satisfied. At all costs we must endeavour to ensure that people do not get to the appeals stage. People should be involved at the early stages when matters can be sorted out. I am heartened to hear the Minister saying this is his intention. I hope it will mean the whole area of local democracy will be considered because it is fundamental to what we are talking about here.

Amendment, by leave, withdrawn.

Amendment No. 7 not moved.

Mrs. Hederman

I move amendment No. 8:

In page 5, subsection (2) (b), line 5, to delete "other" and substitute "longer".

The same arguments apply to this amendment. Subsection (2) (b) says that the Minister may prescribe such other period either in respect of a particular class or classes of appeals or other matters. I am concerned that the Minister might reduce the time. I do not know whether the time factor or the classes is involved here. The way I read it initially was that it was the length of time. I would be happy if the Minister wanted to lengthen the period but not that he should shorten it.

Minister for the Environment (Mr. Smith)

Senator Hederman will recall that the Fine Gael proposal which sought to require me in the case of routime and minor cases to specify a period shorter than four months, specified two months. I indicated at that time that that was not feasible. It may be that An Bord Pleanála would be in a position to make decisions within that time constraint or shortly thereafter, but I was not of a mind to specify that.

The effect of Senator Hederman's amendment — she supported the Fine Gael amendment earlier — would be to preclude me from specifying a shorter period in routine cases. The provision in the Bill leaves the flexibility and the power to specify longer periods if that were necessary and to specify a shorter period if that proved to be necessary for the more routine cases. You will appreciate that broader flexibility is much more desirable in the context of not only what we want to achieve but of what the Senators have said.

Mrs. Hederman

I appreciate what the Minister said, but unfortunately he did not take on board the Fine Gael amendment, which would have dealt with the classes mentioned by Senator Naughten — domestic extensions, etc. What I want to ensure here is that this would be done by regulation; it would not be a matter of legislation. These things have a habit of slipping through and the Minister might shorten the period for dealing with them. It might not necessarily relate to the class or classes the Seanad dealt with earlier. That is my concern.

Mr. Smith

Senator Hederman can rely on it that the Minister for the Environment does not have any hidden agenda. The fact is that, in relation to the Fine Gael amendment, I indicated that I already had the power. I was not proposing to use that power until we had greater experience of the new procedures. I want to stop Senator Hederman from preventing me from either going for longer or shorter periods in prescribed classes. That is all.

Mrs. Hederman

I did not for one moment suspect that the Minister might have a hidden agenda, but with political upheavals as we have known them, the Minister might not be in that Ministry forever. I would be concerned that other Ministers might not be as sympathetic as he to the environment in which planning is considered. It was for that reason I put down this amendment.

Amendment put and declared lost.

Amendment No. 9 not moved.

Mrs. Hederman

I move amendment No. 10:

In page 5, lines 8 to 24, to delete subsection (3).

Will a lot of the time of An Bord Pleanála be taken up with staff writing out explanations and replying to queries as to why in a particular case they feel they need more time? Will this deflect them from their real work, which is the consideration of planning applications. I feel that if they had limited resources it would be unfortunate if they were to divert these resources to functions which do not appear to me to be central to their role of deciding on planning appeals. In view of section 2 (1), I wonder is this subsection necessary.

Mr. Smith

Perhaps I should at this stage say a brief word on how all of this developed. We had consultations with members of An Bord Pleanála for a number of years with regard to the possibility of streamlining the system. During that period there was a very considerable improvement in the time it took the board to decide an appeal. Following exhaustion of all of the possibilities within the existing legal system, it emerged that there were still other areas which could only be addressed by legal mechanisms if we were to further improve that system. I am delighted to tell the Seanad that, even in the lead-up to the introduction of this legislation and in the expectation that this would be enacted before the summer, there has been a considerable improvement. There is now a diminishing number of applications on appeals which are taking longer than the four months now being prescribed. This is an indication already of the capacity of the board and of their willingness to meet as far as possible the requirements of this legislation.

I cannot accept this amendment because it would involve removing section 2 (3) from the Bill. That is essential because it lays down the procedures which the board must follow in particular cases and the procedures it must follow if it is not possible or appropriate for it to meet the time objective for the determination of cases set for it in section 2 (2). If we were to delete that subsection, the procedure in circumstances where the board is unable for quite legitimate reasons to give its decision within four months would be unacceptable and uncertain.

Amendment No. 11 raises the possibility that the board might serve a series of notices indicating dates by which it intends to determine a particular case. To provide for a succession of notices indicating different target dates would, in effect, give the board a blank cheque in terms of time and be completely at odds with the whole purpose of the Bill. I cannot accept that amendment either.

Mr. Costello

I support both amendments. Amendment No. 11 is the Labour Party amendment. It seems to me that section 2 (3) (a) is in the wrong position. I would have thought that where there is a proposal that the board would be asked to intervene where it considers either the four months inappropriate or the period determined by the Minister, then it could come in with another period if it felt that it was not appropriate to be dealt with within the expiration of that period.

First, the board would deal with an appeal in the given standard period of four months and, secondly, should that period not be sufficient, as we have outlined in the amendments previously in relation to environmental impact studies, the board would then go on to extend that period and only then would the Minister get involved — in other words, the Minister would be a person of last resort to determine the appropriate period. In those circumstances we would be improving the legislation and getting to a stage where the Minister would not be faced with the need to consider extending the four month period. That would deal with the issue of the extra complexity involved in the context of an environmental appeal which requires an environmental impact study. Perhaps the Minister could look at that again. I am not so sure I would go quite so far as to delete it. Certainly, in regard to its position and the manner in which it is done, I think both logic and reason would suggest that the principle could be dealt with at an earlier stage after subsection (2) (a).

In relation to our own amendment, we are proposing that, at the end of subsection (3) (b), which says:

Where a notice has been served under paragraph (a), the board shall take all such steps as are open to it to ensure that the appeal or other matter is determined before the date specified in the notice

to add the words: "If this is not possible the Board may from time to time by notice extend the period concerned." It is given a degree of flexibility to the board to extend the time when it is not possible to deal with the matter in the time allowed. Something of that nature could arise when there are legal proceedings in relation to an application. I recall the procedure in relation to the Clifden Airport application not so long ago in Roundstone. The Office of Public Works had designated it as an area of heritage which was to be preserved. Then there was a successful High Court action followed by a Supreme Court action which was taken by the Office of Public Works. Obviously a procedure of that nature would require an extension because the board simply could not deal with it within the timeframe we have specified. We need to make provision for those exceptional circumstances where it is not possible for the board to complete its deliberations within the timeframe and something of the nature of the amendment we are suggesting here would cover that eventuality.

Mr. Smith

I really do not understand Senator Costello. He would appear to be supporting both amendments Nos. 10 and 11 and they are mutually exclusive. If you delete section 2 (3) (a), you deny the board the right to go outside the four months period. On the other hand, if you accept amendment No. 11 you are giving an unlimited right to the board to keep extending that period. I do not understand the Senator's reference to me as Minister, because I do not have an involvement in individual cases. We are here discussing the prescription — hopefully in law — which will enable the board to take its decisions and having the objective of doing so within a four month time period.

The Seanad have now accepted the four months objective. If you delete this paragraph the right will be taken away from the board in certain specific circumstances to seek a longer period. That seems to be the case that Senator Costello is making to me — to make sure that is there. It is there and we are keeping it there. On the other hand, the amendment affords the prospect of extending the right to the board to have an unlimited period and that would be totally against the whole reason for introducing this legislation in the first instance.

Mrs. Hederman

May I refer to something the Minister said before and after lunch? He mentioned the consultation there had been with An Bord Pleanála over a number of years streamling the process and that as a result there had been a big improvement but that it had exhausted all those improvements. In that context I am aware that there were two investigations carried out — one by Frank Benson and a team and the other an internal investigation by civil servants. Is the second report available to the public?

Mr. Smith

It does not arise on this amendment, but the Minister for the Environment is so open and helpful in all these matters that I have to tell the Senator it is not available. It would form part of a great deal of internal work which goes on in the Department of the Environment about various responsibilities we have, and in the normal way is not for publication.

Mrs. Hederman

I am sure the Minister did not mean to be amusing when he said that the Minister for the Environment is so open——

Acting Chairman (Mr. R. Kiely)

I would prefer, Senator, if you would get back to the amendment.

Mrs. Hederman

It was in the context of this amendment that the Minister brought up the question of the consultations that had taken place and I wanted to ask if he would be prepared to tell us with which bodies he had consultations when this legislation was being considered and before it was drafted, because I think that would help to clear our minds in regard to exactly who is being facilitated.

Acting Chairman

This amendment refers to the extension of notice being given on appeal.

Mrs. Hederman

We are dealing with the amount of time the board might require or request to make their decision; and it is in that context that I was trying to expedite matters. I was trying to find out what information was available to me as a Senator and I was anxious to know if that internal report — not the Benson report — was available. The Minister said it was not. You have to forgive me if, because of a lack of information and a lack of knowledge, I have to ask questions which I would not otherwise ask if the information was available to me.

I wanted to ask the Minister what bodies and groups were consulted when this legislation was being considered and when it was drafted. With regard to the question whether the board will be able to make their decisions within the specified period of four months, I mentioned the Culliton report, which says that they think the statutory time limit of four months for processing planning appeals "would be very difficult to achieve because of the generally poor record of the local authorities in submitting fully documented files to An Bord Pleanála".

In view of the fact that I am convinced that the Minister wants to improve the lot of the local authorities and to assist them in carrying out their democratic functions, would he not consider that it would be more appropriate to give the local authorities the expertise they require or make it easier for them to afford to take on whatever staff they required to comply with the requests they will get to send documentation to An Bord Pleanála? In many ways it seems — and the Minister appears to have confirmed this this morning — that, to a large extent, it is the local authorities who have been gumming up the works because they have not been sending in the documentation.

The Minister said he was aware that in a great number of cases the local authorities were holding up the whole procedure, that they were taking longer than the two months to make their decision and that they were not getting the information to the Appeals Board within the time required. Would that not be the source of the problem — the inability of the local authorities to comply with these requests for information? Would the Minister think of directing his activities for efficiency in that direction, rather than taking the heavy handed approach?

Mr. Costello

My support for Senator Hederman's amendment was more by way of solidarity with the Senator rather than logic.

Mrs. Hederman

Thank you, Senator.

Mr. Costello

The point I made was that section 2 (3) (a) was in the wrong place; it should come after section 2 (2) (a), in other words there would be more extensive powers given directly to the board before the Minister would intervene and the Minister's powers would be prescribed at the end of this section. In this way we would allow An Bord Pleanála greater flexibility after the standard four month period.

The second amendment is along the same lines. I pointed out that you could have a series of convoluted and extended court cases which would clearly require an extension of time. Therefore it should be specified that it would be possible for the board from time to time by notice to extend the period. Subsection (3) (a). says: "... shall specify the date before which the Board intends that the appeal or other matter shall be determined"— in other words, it seems to refer to a single specified date. Because of the complexity of issues that may arise and the complicated legal processes which may follow an appeal, or be part of an appeals procedure, extended powers given should be given to the board to cover that eventuality. That is what I am trying to do in the second amendment.

Mr. Howard

The discussion on this amendment is very wide and I want to come back to what my feelings were on reading both the amendment and the subsection. Good arguments have been advanced, particularly the point made by Senator Costello about Clifden Airport and the difficulties that can arise in circumstances like that but these, of course, are the exceptions. In dealing with the majority of cases, if you were to remove the teeth in this subsection I think it would be pointless to have this legislation. That is my feeling. I agree with the Minister when he said that the effect of accepting one of the amendments would be to give An Bord Pleanála unlimited time to reach their conclusions.

I would like to hear the Minister's comments on the point Senator Hederman made about the problems caused by local authorities being slow to submit documentation. All the documentation involved must be in the file from the first day. I referred to the experience I had with a particular case and I asked the Minister to consider the value of giving legal effect to a system of information from the board to people who are involved with planning applications. He did not respond, but I feel that this section is moving towards what I had in mind. If the board believe they cannot reach a conclusion within four months, then at least they are obliged to inform the parties that they are extending the time. They are obliged to specify a date by which they have to reach a conclusion. I support that because of experience in dealing with the board.

The situation at present is wholly unsatisfactory. Even when the period of three of four months has elapsed, when one would imagine that the collection of all documentation should have been achieved at that stage there is no means of establishing when a decision will be reached in a specific case. That is unsatisfactory and in so far as the section is attempting to tidy it up it is an advance. To take from that section whatever few teeth are in it would be a worthless exercise to engage in because the whole purpose is to have a timescale and to get the board to adhere to it.

The discussion is very wide and I accept that there will be exceptional cases as outlined by Senator Costello. I am sure the Minister will indicate if there is a mechanism to deal with these circumstances. So far I find that section is essential for the success of the Bill.

Mr. Smith

I want to go back to Senator Hederman's earlier point with regard to resources for local authorities. There is a misconception that the only way you can achieve efficiency and improve procedures is by additional staff. If you want to make comparisons between local authorities and output and then make those comparisons with staff again you will find fairly extraordinary results just as we all do in our everyday lives. It has got to do with capacity, performance, dedication, commitment and, for the greater part, we can find that in all local authorities.

In this context the local authority are being required to submit documentation to An Bord Pleanála within two weeks. That is an improvement. As far as consultation is concerned, it goes on all the time. We have eight Bills before the two Houses at the moment relating to the Department of the Environment so the consultative process goes on all of the time with all of the interests involved.

I had a very successful meeting with An Taisce in relation to the elements in this Bill where I was able to allay their fears. Senator Hederman would be wise not to inform An Taisce that she is proposing to delete subsection (3), which gives to An Taisce and other bodies the realisation that if there are the type of cases which Senator Howard and Senator Costello referred to which prove too difficult to be dealt with within the specified time, there is an absolute provision for the board, in examining and determining that case, to take a longer period. It would be very unwise to remove that subsection.

In regard to the point raised by Senator Costello on legal proceedings, in the normal way these would take place after the final process and very rarely during the examination by An Bord Pleanála. Clearly we could not try to take account of all of those individual possibilities beyond saying that it would be very wrong to give the broad blank cheque to make decisions about a large number of applications without having regard to the timescale and the framework into which we have tried to lead the new legislation with regard to planning. The Bill adds certainty to the process. They must decide on almost all of the applications within four months and only in the most exceptional cases would a longer time be warranted. In those circumstances I ask both Senators to reconsider their position.

Mr. Costello

Will the Minister clarify for me in relation to amendment No. 11 how this legislation would operate in relation to the example I gave? I know we try not to deal with hypothetical situations but this is not quite a hypothetical situation. This is a situation where planning permission was refused by Galway County Council because the Office of Public Works had designated the area as a heritage centre. An application was taken to the High Court which was successful and the Office of Public Works then appealed that to the Supreme Court. Obviously it is an ongoing situation that requires an enormous amount of time. I would like to know is that covered in the provision here? It seems to me it is not. If it was simply a hypothetical situation I would not press it any further. It is a situation that can occur more frequently. I imagine there will be more court cases in relation to applications on appeal where there are environmental implications as there are in this case.

Mr. Smith

If it is not possible to proceed for any reason the Bill makes the following provision in section 2 (2) (a) and (3) (b) where a notice has been served under paragraph (a) "the board shall take all such steps as is open to it to ensure that the appeal or other matter is determined before the date specified in the notice". It can only take the steps that are open to it.

Mr. Costello

Does there not seem to be the opportunity in that provision to prescribe for an extension of notice that may be required depending on whether there is an application to the High Court or the Supreme Court which would require a variation in terms of the period. All it says in section 2 (3) (b) is where notice has been served the board shall take all such steps as are open to ensure that the appeal or other matter is determined. While the board may take every step they can take within their power, nevertheless the law may very well take it out of their hands. What is the situation? We are saying that if you add the amendment it makes provision for the intervention of circumstances that will now come increasingly to bear on planning applications and planning appeals, namely, environmental considerations that will lead to litigation.

Mrs. Hederman

I am very amused at the Minister's comments about An Taisce because when An Taisce sent me their submissions they said in connection with section 2 (3) (a), "this particular duty to be imposed on the board is not necessary in view of the provisions of section 2 (1)" etc. They say in relation to section 2 (3) (a) and (3) (b), "for the board to implement such provisions means it must divert limited resources to functions which are not central to its role on deciding planning appeals and these should be deleted in view of the duty imposed in section 2 (1)". I have written beside it, "do not understand". I did not intend to put down this amendment but I looked over it again and looked at some other documentation they sent me and I decided I had better table the amendment. Perhaps it is An Taisce who have made a mistake. I will certainly be quite upfront in telling them what I have done. I am doing it at their behest and they can have no gripe with me. I thank the Minister for assisting me in that way.

Amendment put and declared lost.

Mr. Costello

I move amendment No. 11:

In page 5, subsection (3) (b), line 24, after "notice" to insert ", but if this is not possible the Board may from time to time by notice extend the period concerned".

Amendment put and declared lost.

Mrs. Hederman

I move amendment No. 12:

In page 5, subsection (4) (b), line 28, to delete "vary" and substitute "lengthen".

The Minister may, by regulation, vary a period mentioned in subsection (2); I am looking for the Minister only to lengthen the period. I am concerned that so much is to be done by regulations. I know how difficult it is, in the short time I have been in this Chamber, to take issue with regulations. Perhaps that should not be but that is that way it is. I would be happier if they were part of the fundamental Bill.

Mr. Smith

I have nothing further to add. This has been dealt with on a number of occasions.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 13; Amendment No. 14 is an alternative and both may be discussed together.

Mr. Costello

I move amendment No. 13:

In page 5, subsection (6), line 42, to delete "six" and substitute "twelve".

The intention of these amendments is to give more scope to An Bord Pleanála to clear their books before the implementation of the strict provisions of this legislation. We want to delete "six" months and substitute "twelve" so that we might provide a lead up period of time to enable An Bord Pleanála to get rid of the back log. I am glad to hear the Minister say there seems to be fewer arrears of appeals than there used to be. Nevertheless, we are making strict provision for the handling of appeals and imposing a very strict timescale. Taking into account all the considerations in terms of staff and the existing workload we should give the Appeals Board every opportunity to deal with new appeals under the provisions of this legislation. It seems to be a reasonable proposal that we substitute "twelve months" for the "six months" in the legislation.

Mrs. Honan

I thought the idea was to speed up the procedure. Now we are being asked to delete "six" months and substitute "twelve" months. That would be slowing down the process. The wording in the Bill is fine.

Mrs. Hederman

In the earlier part of the debate — I do not know if Senator Honan heard it — it appeared that everybody was anxious to speed up the procedure. It is a question of how we achieve that. Some people might be of the opinion that the way to do that would be to put the squeeze on third party appellants, to make things more difficult for them in the hope that that would result in a speeding up of the process. Other people take a different attitude, people like myself who feel that a more consensual approach would be more appropriate with less of an impression given that we are trying to shut out those who have a legitimate interest.

If we go that route what will happen? Sadly, there has been a lack of confidence in the planning system. Industries have not located here because the public were not confident that the authorities would look after their interests. In the long run, what happens is disastrous for the country. We want to speed up the procedure but we want to ensure that it is done at a fundamental level and that we do not end up with a worse situation.

I want to refer to the section. Should I wait to do that?

Acting Chairman

Yes.

Mrs. Hederman

In relation to these amendments, Nos. 13 and 14, Senator Costello has said much of what has to be said. Here again I felt the Minister would probably not agree to 12 months; I thought nine months would be a compromise. It is really a question of when this system will come into operation and how much time is needed. In view of the fact that the Minister told us the Appeals Board have speeded up the appeals process, perhaps they will be able to cope, and I will not press my amendment.

Mr. Fitzgerald

I disagree with the extension to 12 months. In all his answers today, the Minister has been above board; he explained everything to us and, as he rightly pointed out that treaties have been negotiated in four months. Major historical events, such as the collapse of the Berlin Wall and the Iraqi War, took place in a shorter period than the Appeals Board take to deal with planning applications. We are again trying to extend a time limit here with which I disagree. I would hate to see planning being pushed through; I believe a six month period is adequate. I ask the movers to withdraw this amendment so that we could move to the other amendments.

Mrs. Hederman

We cannot get the wording of the referendum which will be held in a number of months time; the Taoiseach has told us the longer it takes the better it will be.

Mr. Smith

The backlog of applications before An Bord Pleanála two years ago was 1,700; it is now slightly over 1,000. There has been phenomenal improvement and the board have adopted a new and more business like approach. The question of extending from six to 12 or from six to nine months the time period necessary for the board to give up their operations after the passage of this legislation is what is at issue here. While, there was support for the principle of the Bill, a number of amendments seem to have the effect of cutting across this principle, trying to establish new procedures and speeding up the operations of the board. The board have responded magnificently and will continue to do so. That is the way I want to see it.

I reject Senator Hederman's comment about squeezing out and shutting up groups who have a legitimate right to make an appeal against a development. I have looked at planning systems throughout Europe and I am proud to say there is not a better or more flexible system in respect of third party appeals than that in this country. I refute the notion that we are always against something. I have considerable contact with organisations throughout this country and I think the majority of people are positive in their approach rather than negative. It may very well be that there is need for discussion, consensus and for transparency in the consolidation of the planning regulations and an making objections public from the beginning. In all of these areas we are improving the position and Senator Hederman is not correct in saying that those who have a legitimate right to appeal against a development are being squeezed out. In fact, their position in a number of ways is being enhanced. I am very anxious to have a more transparent system, one with which the public can feel more at ease. That is not inconsistent with trying to do our business more quickly and properly.

All of the indications I have from An Bord Pleanála show that they are prepared to take this legislation on board because this was published last year. In the normal way, if we had been able to pass this legislation last January the six months would be practically up now but we hope to have reached that stage in 1993. In the meantime the board have geared up their operations and I am delighted to tell Senators that the statistics are showing a strong improvement all the time. That is without neglecting or diminishing the rights of anybody to exercise what they consider to be their rights with regard to planning laws.

I ask the Senators if we are in favour of the principle of doing this or are not. If we are not then we will put all the obstacles into the way of enabling the board to do what we want them to achieve. I regard extension of time as unnecessary. All of the indications I have had, which I have spelled out here, indicate to me that nobody in An Bord Pleanála, in terms of their existing arrangements, considers it necessary to have an extension of time.

Mr. Costello

I do not at all question the Minister's bona fides on this matter but his attack on Senator Hederman was a little unfair because there has been quite a long campaign in certain sections of the construction and the house building industry and they thoroughly welcomed the provisions of this Bill. The nub of the campaign has that planning appeals are far too long and there is need for streamlined legislation to get rid of the arrears and the delay. The reason for this legislation, in the first place, was because of the delay in processing appeals. Now we are virtually being told by the Minister that there is no delay, that it was really a question of gearing up An Bord Pleanála to deal with the appeals, that the number of planning appeals is down and that the arrears are virtually eliminated.

Mr. Fitzpatrick

The Senator is taking what the Minister said out of context.

Mr. Costello

The Minister certainly gave us totals in relation to applications from 1,700 down to 1,000. He did not give us figures in relation to the backlog of appeals that have not been dealt with, which matter we would be interested in and about which I asked a moment ago. If the reason for the legislation is that there has been an undue delay in processing appeals then we can accept that reason still remains and that there is still a backlog. If that is the case we need some time to get that out of the way before we get these new streamlined provisions. If the Minister is quite satisfied there is no need for a period, at least no more than six months, I will accept that.

Section 2 states that the duty of the board is to ensure that appeals are made expeditiously, but the more haste, the less speed. If we are introducing very tight and quite rigid procedures, a time-scale for all applications of four months, major and minor, then we want to make sure the board are operating from the word go without any backlog causing trouble once they start. The intention of these amendments is not to breach the objective of streamlining and expediting the procedures but to ensure that when the legislation comes onstream there is no obstacle to it operating effectively.

Mrs. Hederman

The Minister has given me good news in relation to the improvements in the procedures in An Bord Pleanála. I still wonder why the reference, which was made to them last January twelve months by my residents' association, is still waiting to be decided, but that is obviously a detail which I do not expect the Minister to answer here.

I may be able to cool the atmosphere. I might have inadvertently misinformed the House in terms of the numbers of planning appeals. The backlog in September 1990 was 1,700 and in April 1992 it was 1,000.

To come back to the internal report, it has always been Government policy to manage developments of this kind in that way. A large number of improvements in An Bord Pleanála resulted before the legislative change, and there was quite a number of improvements on foot of the legislative change. There is also an expectation of further improvements when we implement the provisions of this Bill.

The only part of this Bill which must wait six months after the enactment of the legislation is the four month objective; everything else is put on stream immediately, and that includes the obligation on local authorities to submit the documentation, the requirement on planning applicants to have a further map to facilitate the local authority, etc. All these provisions are immediately put in place and this will enable the board to continue with the progress that has been made.

In regard to the staff figures I gave this morning, if Senator Hederman cannot trust them, I would ask her to take on board the manner in which An Bord Pleanála have been able to bring down the backlog from 1,700 two years ago to 1,000. If she is arguing that they achieved that with a reduction of staff, I have to tell her that it was achieved by a more efficient operation and increased staffing, particularly the technical inspectorate to whom the Senator referred.

Mr. Costello

If the backlog has been reduced in a two year period from 1,700 to 1,000, there will be still a backlog of 1,000 when the legislation comes into force. Do An Bord Pleanála have a time scale for dealing with those cases? Are they satisfied they can be dealt with within the six months under the legislation?

Mr. Smith

I would not advise the Senator not to go for an economics degree. The Senator will appreciate that planning appeals are being submitted all the time. There would be no reason to have An Bord Pleanála if there were no appeals. Each month the board receive 250 or 300 appeals; in a four month period there would be over 1,000 appeals. Therefore there will always be a backlog. If there was no backlog, I would have to reduce staff numbers drastically because they would not have any work to do. We could not reach the stage of not implementing the legislative provisions until the backlog was removed.

Senator Costello's point relates to the net figure of appeals on hand. I cannot say what that is — it is probably 700 or 800; I would not like to be too specific but it is less than 1,000. I do not know how much lower it could or should be. Clearly those appeals would be dealt with by the end of the year.

Mr. Costello

Is the Minister satisfied that An Bord Pleanála is able to cope?

Mr. Smith

Absolutely.

Amendment, by leave, withdrawn.

My point is that it was relevant to those two amendments because if that report spoke about speeding up the procedures that was relevant in the context of whether the board would be able to cope with the matter within six months, nine months or 12 months. I want to emphasise the point to the Minister that here once again the transparency which was so laudable and about which we are delighted apparently is not going to be implemented here. I do not really think the fact that the decision has been made means the report would be irrelevant.

If I am not misinterpreting the Minister, he said he knew of a case where the board had taken a different view to the inspector and in his humble opinion the board were right. Let me put it to the Minister that might very well be the attitude which An Taisce, a residents' association or the public might take and that concealing these matters from them is what drives people mad. That is what people hate. I find it difficult to understand why it is that once people get into positions of power where they have information available to them they suddenly forget what it was like when they were in the humble position of trying to look after a constituent who is taking an appeal or a planning application and the frustration felt when one cannot get access to information and reports. It is the frustration of not being given information up front, of knowing that there is an inspector's report which is hidden away which some people can see but we cannot, that drives people into taking a third party appeal.

Somebody like the Minister, Deputy Smith, can look at a report and say that he agrees with it. However, we are deemed less reasonable and it is assumed that if we were to see it we would not agree with it. That is the fundamental flaw in much of the planning legislation. There is the continual assessment of the public as in some way unable to take a responsible position. That is what is causing so many of the planning application appeals to go wrong; people are being forced by circumstances to make appeals because they are concerned that there may be a hidden agenda. Perhaps the Minister does not have a hidden agenda but they feel other people have. Because the Minister will not let them see the report, they wonder what can be in it.

The one report I have asked the Minister for is the one I cannot have. I believe in that report there is information that might be relevant to my case and the fact that I cannot have the report fuel my certainty that there is something in it that the Minister does not want me to see. If the Minister had given me the report and I had had time to look at it overnight I would probably have discovered there was nothing in it and I would have come in here in very good humour and we might all be home by now with these amendments agreed or disagreed.

Mr. Smith

We will agree to differ. In regard to people feeling frustrated, I will be here a long time before the Senator can convince me that it is always the absence of information that causes this frustration. Often it is an interpretation of new information and other aspects that equally frustrates people. I have said from the beginning that compared to any other European country one could not find a more open, fair and more balanced system than ours. On the production of the reports at local authority and all relevant levels up to the point of the decision being taken, I am prepared to have a totally new approach and all sides of the House welcome that. However, in regard to the inspector's report I have told the House that the only time it can be produced is when a decision is taken. In all other cases all of the information is available up to and until a decision is taken. Once the decision is taken the report clearly does not have the same relevance.

Perhaps Senator Hederman is trying to tie the Irish legislation to the UK legislation where the inspector's report is published. In the UK it is the inspector who decides. In our case the board have statutory authority to make an independent decision, taking into consideration the inspector's report and all the other things they must take into account. However, they make their own decision. The inspector's report is not the decision. I consider that the production of that report in circumstances where the board is not bound by it would cause as much conflict and frustration as its absence seems to create for Senator Hederman. We will have other legislation in this area in the future when there may be a different view taken. That is my view at this time.

Let me give the House the benefit of my experience. When inspectors are dealing with these very often difficult situations it may be better if they can stand back from these applications and make an independent assessment in the knowledge that will not be pressurised into deciding on a future application because of something they said in relation to an earlier one. Many a public servant has set out honestly to deal with a planning application and make an assessment only to find himself faced with something that was published on the basis of what was decided in, say, Drogheda; and there may be a different report for Cork because there were different circumstances. It is not that we are hiding anything.

I want to refute again the line that we have a hidden agenda in relation to this planning Bill. As far as the report in my Department is concerned, this is it. The board had a backlog of 1,700 on 13 September 1990 and 1,000 on 30 April 1992. That is solid progress and the legislation will improve that position. The fact that there were no votes called on this legislation, which has been supported on all sides of both Houses of the Oireachtas, is an indication of the consolidated position being taken up by the majority of elected representatives. I have great regard for Senator Hederman's contribution in this field. It is part of the democratic process into which each of us has a right to have an input. I am satisfied that the provisions here for openness, transparency, flexibility, balance and a fair approach will prove in time that we do not take away rights from anybody. We want to consider each application on its merits. We have the board in place to make decisions. We have made solid progress so far and that will continue.

An Cathaoirleach

We have debated this amendment for a long time. Is the Senator pressing this amendment?

Mrs. Hederman

Not only will we be pressing it but we may have to put it to a vote. It is not that we want to do so but the Minister seems to be sending us in that direction. I hope the Minister does not think I am cowed by the approach that everything is all right and that I am the one who wants to stand out against this. I do not mind if I am the only one who stands out. I will stand up here for what I believe are the right principles so that people will have the right to participate in planning. It does not bother me if I am the only person in the House to do so and I know the Minister recognises that. I am here to represent the people and I will certainly continue to do so. I will not accept that because the Minister keeps saying he wants to be open, transparent and flexible that everybody is going to conclude that he is being open, transparent and flexible. I am not a member of a political party. What the Minister says may be adequate to convince the members of political parties who are under political three line Whips, but it does not convince me and I do not want the Minister to think it will convince me.

What I have said — and I repeat it — is that the Minister has continuously talked about making reports available but as soon as we ask for something to be made available we are given 100 reasons it is not possible. I know that the board will have made this decision, but I do not see why that should preclude the public, an appellant or a developer from seeking to know that influenced the inspector to come to a certain decision. I have been to a number of appeals and I know the inspectors but not for one moment do I think that the inspectors in the Department would be intimidated into giving one report because it was going to be made public and another report because it was going to be kept secret.

Amendment put and declared lost.

Mr. Howard

I move amendment No. 16:

In page 5, between lines 46 and 47, to insert the following subsection:

"(8) (a) No extension of time for the hearing of appeals of any class or type or kind shall be sought or accepted by the Board or imposed by the Minister under this section or any other enactment arising from staff shortages.

(b) The Minister is required to ensure that the board has sufficient staff and ancillary resources to meet, save in exceptional circumstances, the time limits set out in this section.".

I am disappointed that the Chair did not see me offering on the last amendment. What we are seeking here is to prevent the excuse of staff shortages being used by An Bord Pleanála for their failure to meet the four months deadline in the legislation. We are concerned that this excuse is being used from time to time and may well be used to extend the deadline. In the second part of our amendment we are seeking to ensure that the Minister will provide sufficient staff and ancillary resources to the board so that they can operate within the time limits set out in the section.

During the discussion the Minister drew a distinction between the board of An Bord Pleanála and the administrative process within the board. That was an interesting concept to put before the House because the public do not differentiate between the board and the administrative staff of An Bord Pleanála. We are concerned that staff shortages should not be used by the administrative staff as an excuse for not meeting the four months objective.

The value of the board to the planning process has not been referred to and the impression may emerge that there is dissatisfaction with the whole process. That would be wrong because the majority of us accept that the decisions that emanate from the board are usually satisfactory and I think their contribution to the planning process has been worthwhile.

The two areas that have caused concern and which have dominated the discussion here today are the time applications or appeals take to be decided and the absence of transparency in the process. I consider the final results that emerged from the board as worthwhile and deserving of support. It is obvious that our frustrations and concerns are with the length of time appeals take and the perceived absence of transparency.

If the board fails within a period of four months to arrive at a decision or seek an extension of time, what is the status of the appeals? I ask that question having regard to the status they would have with the local authority in similar circumstances. I have extended the matter to some extent. Basically, the amendment requires that staff shortages would not be used as an excuse for delays in processing appeals.

Mr. Smith

I thought Senator Howard was going to tell me that when you look out the window on a lovely sunny day you might say it will be raining in an hour or, alternatively, when you look out the window and it is raining you might say it will be fine in an hour. My philosophy is that if it is fine it will stay fine and if it is raining it will get fine.

The statutory provision governing staffing is covered in section 10 of the Local Government (Planning and Development) Act 1976. The same applies to all boards. In the past, applications from An Bord Pleanála for extra staff received sympathetic consideration. I must take into account the national financial situation. If you put in different staffing provisions from those which apply to other boards it could ultimately produce fertile ground for industrial unrest. I do not want that to happen and I am sure Senator Howard does not want it either.

The existing board and staffing levels have been increased marginally in recent times; the inspectorate has been substantially upgraded in numbers and the performance of the board, while not fully satisfactory, is moving very close to meeting the provisions laid down in this legislation. There is no evidence to suggest that there is any problem in that regard. If there are future developments of the kind the Senator outlined, we will have to examine them, but we will not anticipate them; we will not say that that will be the position because in a number of areas we have lightened the load. We have streamlined the system which require the local authority to send all the necessary information to the board from the outset. Previously the board were obliged to write to the applicant asking him to submit a full appeal. We now have what might be called an automatic system underpinning many of these appeals which takes away a considerable part of the board's workload. In requiring them to make decisions within a four month period, we are streamlining that system to enable them to make those decisions. It is not a case of off-loading or on-loading additional requirements without taking into account how the system is changing and how their management and structure can benefit from the proposals which will be implemented immediately after the enactment of this legislation.

Mrs. Hederman

Senator Howard made a good case with regard to the problems which might arise as a result of an inadequate number of staff, and the Minister referred us to section 10 of the 1976 Act. In view of the Minister's pressing desire to be less involved where he is not needed so that he will be able to deal with more important issues, is there any need for employees of the board to be subject to the approval of the Minister, as set out in section 10? The phrase "with the consent of the Minister" is mentioned in almost every section. Does the Minister consider that that is his job or would he be better employed doing the important work which he, as Minister for the Environment, has to do and which, from what he said today, he wants to do?

Mr. Smith

I do not want to find fault with the Senator, but if I was going to consider someone for a team who was able to play every position on the field, I would strongly recommend the Senator. While this is not related to the matter at issue, I agree with Senator Hederman. In fact, I will be making proposals to the local authorities in the near future, without the requirement of new legislation, to transfer functions which were carried out only with the consent of the Minister from time immemorial. I agree there are many areas where the Minister's involvement is not required and I propose to make any changes I can.

When it comes to personnel staffing issues and matters relating to public pay, unfortunately, for better or ill, in terms of how the national purse strings are managed and the constraints on public finances, there has to be a fairly even-handed approach throughout the Civil Service and the State sector. The consent of the Minister is not required in every instance, rather the system produces a situation where there is balance and comparability between these areas. I do not generally have to sign documents dealing with these issues but, on a broad front I adopt an even-handed approach, otherwise there would be considerable additional costs on the Exchequer which, in turn, would be passed on to the taxpayers — a burden they are unable to carry. That general requirement is enshrined in the legislation, not my personal involvement in the day-to-day business of the board.

Amendment, by leave, withdrawn.

Question proposed: "That section 2 stand part of the Bill."

Mrs. Hederman

In relation to the duty of the board to produce a report, what steps are taken by the Minister when the board do not produce a report? Is the report to be produced at a specific time?

Section 9 (1) of the 1976 Act states:

The Board shall, not later than the 30th day of September in each year, make a report to the Minister of its proceedings during the preceding year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

In view of that, will it be produced by September of that year? May I ask the Minister how the board produced their report by 30 September of each preceding year and what would the Minister do if they did not?

Mr. Smith

It is good that we can laugh at ourselves now and then as well as at others. I do not want to give the same answer I gave Senator Howard regarding what would happen if something is not done. I prefer to say what I will do when it happens. As the Senator rightly suggests, there have been times when reports of this kind have not met that statutory deadline. Usually it is because of queries raised by the Comptroller and Auditor General and we would be informed that the preparation of the report had been delayed but would be available as soon as the Comptroller and Auditor General had delivered on whichever point was raised in that context. It is not a general problem. Delays are inevitable, but we are informed of them and it is the duty and requirement of the board to meet them as far as possible, and they normally do.

Question put and agreed to.

SECTION 3.

Mr. Costello

I move amendment No. 17:

In page 7, line 5, to delete "giving" and substitute "making public".

Amendment No. 17 proposes to delete the word "giving" in section 3 (5) (f) so that the term "appropriate period" paragraph (a) would mean the period of one month, depending on the day of making public the decision of the planning authority rather than the day of giving the decision of the planning authority. These dates are quite significant because there is a difference between the actual day on which the planning authority make a decision and the date on which it is made known to the public. Indeed, notification of decisions made by local authorities generally made at least a week or a fortnight after the decisions have been made. When the new schedule is introduced it will be more difficult for all the parties involved to lodge an appeal within the required timescale.

Amendments Nos. 18 and 19 are related and may be discussed together.

Mr. Naughten

I move amendment No. 18:

In page 7, before section 4, to insert the following new section:

"4.—(1) The Board shall be answerable directly to the Oireachtas or to a designated Joint Committee thereof, not in relation to any specific appeal decision but in respect of its general policy, efficiency and fairness.

(2) Where such function has been delegated by both Houses of the Oireachtas to a Joint Committee the terms of reference of that Committee shall include detailed provisions of how the Committee and the Board shall relate to each other.".

This amendment would allay many genuine fears and concerns of the general public regarding certain decisions taken by An Bord Pleanála. I would be the first to recognise that the majority of decisions do not create major problems, but some do. On Second Stage Senator Fitzgerald outlined experiences he had in his area, and a number of peculiar decisions have also been brought to my attention recently.

If An Bord Pleanála were answerable to an all party committee of both Houses of the Oireachtas the policy under which they operate would be clear to everyone. For example, in one county a local authority had designated an area for an environmental amenity scheme, a developer applied for planning permission on the same site and received permission on appeal to An Bord Pleanála. That was contrary to the development plan of that county. In my county, two decisions taken within the past 12 months were also contrary to the county development plan. The county council employed consultants to prepare a county development plan, went through the normal legal process, received submissions from different bodies, examined those submissions and proceeded to grant planning permission along those lines. However, because of an appeal to An Bord Pleanála the development may not go ahead. This is contrary to what was decided by the county council when preparing their county development plan. The area in question was designated for housing but when an appeal was lodged with An Bord Pleanála, the board overturned the decision of the county council.

I have had a number of similar complaints about decisions and appeals that are extremely difficult to justify. People will suggest there is redress to the courts, but we all know the cost of this and, for the majority of applications that go before An Bord Pleanála this is not a realistic option because the developer cannot afford to take his case to the Supreme Court.

This is a worthwhile amendment and should be taken on board. The Oireachtas joint committees have been very successful to date. Each Member on the Committee of Public Accounts — on which I had the honour to serve for seven years — regardless of their political views, got on well and dealt with the business before them. An Oireachtas joint committee to which An Bord Pleanála would be answerable would improve the planning process and allay the fears of the general public who feel that certain developers who do not deserve it get planning permission while others are rejected. In my experience, those who are rejected do the most damage to this economy. Some of these appeals have been with An Bord Pleanála for eight or nine months and, as a result, job opportunities were lost. Hence my welcome for the provision that the decision must be made within four months.

I ask the Minister to accept this amendment.

Mr. Costello

I reluctantly support this amendment because An Bord Pleanála was set up specifically as an independent forum which would be free from political or other interference when it came to planning decisions. I do not like the idea of any intrusion by the Oireachtas in the exercise of their role and the annual reports provide a degree of monitoring and accountability which is welcome. Nevertheless, I feel bound to support this amendment because of the complaints made to me by colleagues in the political arena, at local authority level particularly, about decisions made by An Bord Pleanála which I hate to say, they would have described as perverse when one takes into consideration the evidence presented.

The amendment says the board shall be answerable directly to the Oireachtas or a joint committee not in relation to any specific appeal decision but in respect of its general policy, efficiency and fairness. We should ensure that there is accountability to the Oireachtas or an Oireachtas joint committee, especially if it caters for general provisions rather than specific ones.

Mr. Howard

I support the objective of both amendments. I believe it is essential in the interests of democracy that the Oireachtas should have the opportunity of a periodic review of developments in bodies such as An Bord Pleanála. I believe that type of review is fundamental to the success of our democratic system. I regard as unsatisfactory that the only opportunity we in this House have of discussing the activities of an organisation such as An Bord Pleanála is when legislation dealing with that board comes before the House.

Of course, our discussions on the functions and activities of any body to which legislation may relate is confined to the areas of that organisation's activity applicable to the legislation we are dealing with. Therefore, I believe there is considerable merit, and I believe it is even crucial to the democratic system, that we would have in place a mechanism by which bodies and organisations set up by the Oireachtas to discharge certain functions on behalf of the State and on behalf of the people should be examined on a regular basis. In the absence of a better system being put forward by the Minister or by his Department, then I would ask him to seriously consider accepting the amendments as proposed.

Mr. Smith

I was hoping that Senator Hederman, knowing how vulnerable I was in a situation like this, might give me a hand on this one. However, those of you who were in public life prior to the 1976 Planning Act will recall the old system. I think all of us sought and welcomed the change to an independent board with its own distinctive character and constitutional requirements and any failure in that respect would have to be referred to the courts. I certainly was very glad to see planning appeals moving away from the political arena. With the best will in the world, no matter how you would approach it, no matter how fairminded you might be, I think it was open to misinterpretation. That change, therefore, was welcome.

I take on board the fact that Senator Naughten wants to have a debate in the House, but not on individual cases. In view of the quasi-judicial nature of the work of the board and its independent character, I think it would not be appropriate that it would be answerable to the Oireachtas in the way suggested by this amendment. As Senator Costello said, you have the annual report, which presents a certain opportunity, but I would not like to politicise in any way the activities of the board and I think the amendment should be withdrawn.

When it comes to satisfying the public, all of you are experienced politicians. Regrettably, I have the habit now and then of tending to look as if I was trying to lecture, and I sincerely am not. However, in cases where there are opposing views, which there has to be in the case of planning appeals or the appeal would never have arisen in the first place, let us not try to fool ourselves that just debating it in the Houses of the Oireachtas eases the tension. Clearly, there are differing views and they may well differ at the end of the process. There are occasions where dialogue can improve that and where the final decision can meet all considerations but, inevitably there will be decisions which do not accord with one side or the other. They cannot be reconciled just by having a debate. It is the tension; it is part of the system that is there.

Senator Naughten referred to the case where a county development plan is changed by An Board Pleanála. He asked why should county councillors or other public representatives accept that. After all, their technical offices prepared the development plan, the public represenatives decided that plan, and why should some boards actually change the content of that plan in a particular decision? All the planning board can do within their remit is what you can do also, because is it not true that county councillors in the exercise of their planning functions have changed county development planning by decision? The same option is open to both sides. The county council may do it in specific circumstances, so also may An Bord Pleanála.

I really would have to say — please do not misunderstand me; it is only my belief and I have just one man's input into it — that the Oireachtas would be well advised to accept the present situation where you have the annual report but should not try to get into a situation where by calling in An Bord Pleanála they would seek to deal in the public arena with the tensions and different attitudes out there vis-à-vis certain decisions. I would not see that as being in any way favourable to the political system, and in many ways I would see people interpreting it as some kind of a return to the pre-1976 period. I am sure that is not Senator Naughten's view, but I think there would be a danger of that complexion of interference to it.

Mr. Naughten

My point on this amendment concerns accountability. What worries me greatly is that we now have, whether we like it or not, a group of bureaucrats appointed, probably for their lives, who are answerable to nobody. I find it extremely difficult to accept that. As I pointed out to the Minister, local authorities go to the trouble of employing planning consultants to advise and prepare a county development plan. Perhaps they have lands in their possession for upwards of ten years and they have a development plan for ongoing development. Then we see that An Bord Pleanála make a one sentence decision that this development is unsuitable. I do not want to abuse the privilege of this House in any way, and I will refrain from doing so, but I tell the Minister that when the like of that is happening it is about time those people were accountable to somebody.

I have put down this amendment and I have given it a lot of consideration. I think it is time the Oireachtas were entitled to lay down the policy and give a clear guideline to An Bord Pleanála. I feel this is the best possible way of doing it. Therefore, I appeal to the Minister to accept the amendment. The Bill will be much better if it is included. I believe we can look forward to much clearer decisions being taken, decisions that people can understand and where there will not be a half dozen question marks after them.

Mr. Howard

I think the Minister in some way misjudged the amendment by seeing it as an attempt in some way to revert to the pre-1976 situation. It is not. It is very clearly specified in the amendment that individual decisions and individual cases are completely and totally out. It is the global effect of the functions and operations of the board that should be a matter to be considered by the Oireachtas.

The fact that we are here today discussing this legislation is evidence that the Minister himself became satisfied there were certain shortcomings in the operation of the planning system that needed to be rectified by legislation. I believe if we had that annual review, either in a committee of the Houses of the Oireachtas or in the Houses of the Oireachtas, perhaps the matters we are dealing with today would be dealt with earlier. I want to make it absolutely clear that there is no intention whatsoever that individual cases would ever form part of the review. What would be involved would be the overall operation, how the operations of the board evolve over a period — and it is there for quite a long time now.

As I said earlier, the only opportunity the Houses of the Oireachtas ever have had of discussing how the board operated was when legislation relating to it came before them. These only emerged because it became obvious to the Minister and his Department that it was necessary to bring in the changes intended in this legislation. Therefore, there is a useful role of review and discussion that the Houses of the Oireachtas or a joint committee of the Houses can discharge in relation to this body, and indeed to some other bodies as well. I encourage the Minister to look more favourably on the proposed amendment than he has so far.

Mrs. Hederman

I support the last point made by Senator Howard. I do not think there is any question of going back to the position where the Minister was involved in making specific decisions. That is quite clear from the amendments. I did not quite understand the Minister. I think he said that all An Bord Pleanála do is make a decision which changes the development plan and that local authorities can do the same. That is not the way my local authority operates. If there is a material contravention of the plan and we want to give a decision for some good reason — circumstances might have changed since the plan was drawn up or there may be some other extenuating circumstances — we go through a whole procedure which is similar to the procedure the plan goes through. You advertise in the newspapers; you invite comments, submissions and so on and you have to deal with those. Then, having dealt with them, you deal with the planning application. An Bord Pleanála do not go through any of that rigmarole. They simply make the decision and that is that. They just pull it out of the air and decide they will totally ignore a development plan and the public is taken unawares. I do not quite understand what comparison the Minister was making there.

Unless it is changed in this Bill, the Minister has the power to give directives to the board in relation to matters. I am thinking of cases where the Minister gave the board some guidelines in relation to how they should make decisions on shopping centres. I do not know if that is the only one or if there have been others. I do not think the Minister is completely excluded from the whole thing. Perhaps in a way he would like us to believe that he is, or perhaps that is the impression I seem to have been given in that regard.

I do not agree with the suggestion that the Houses of the Oireachtas should be giving policy directives all the time. By and large one of the very few powers a local authority has is the making of its development plan, and I am very happy to hear that the Minister intends to hand over other powers to local authorities. I hope they will not be just about the dog pounds we heard about in relation to dog licences. I am pleased the Minister intends to hand over more powers, because that is what subsidiarity is all about. In this case here I think it is fairly clear that the involvement of the Houses of the Oireachtas or a joint committee would be very limited.

Mr. Smith

I really have very little further to add. It is clear that both Senator Naughten and Senator Howard are very very committed in their view that the board should be answerable to the Oireachtas in some way. I am equally resolute in the view that that is not the road we should travel. If I were asked whether I was entirely happy with everything that happens in An Bord Pleanála, my answer would be the same as the Senator's answer. I know there are shortcomings and I have tried to address some of them and so have my predecessors. Part of the whole belief behind the legislation was not only the streamlining process but also to improve in every way possible the decision-making capacity and to make sure in all we have done here, in regard to public documents and trying to get decisions made more quickly, that we have a more open system.

There are shortcomings; that is undeniable. From time to time all of us may wonder about particular decisions. I am merely giving my advice to the House that I do not see that you will enhance your position in any way by being involved with a quasi-judicial, independent board, with its own independent character, in matters where very often there are clearly two distinct and opposite points of view and you are trying to reconcile them. I do not understand how you could have this matter on the agenda in the Oireachtas without discussing individual cases.

Very often public representatives use words like "bureaucrats". However, the board is selected; there are nominating panels, people like An Taisce and others. It is a fairly representative and, in many ways, as good a selection process as one can find. There are terms for the duration of the people who serve on the board and clearly over time changes are made. I am not in a position to accept these amendments.

Mr. Costello

Our amendment No. 40 is an attempt to tighten up further the activity and the accountability of An Bord Pleanála by extending the conditions so that they would have regard for the provisions of the development plan, of any special amenity area order and of any tree preservation order relating to the area. That seems to be part of the problem, that An Bord Pleanála may or may not concur in its decision with the provisions of the development plan. Local authorities — for example, Dublin County Council and Dublin City Council — adopt development plans and the overall development of an area is integrated into that. However, there is no compulsion on An Bord Pleanála to relate its decision to the actual provisions there. Certainly that seems to be a major gap. The local authority is responsible for the overall development in a cohesive and comprehensive fashion.

At present we have the procedure whereby our semi-State bodies and the Secretaries of Departments come before Joint Committees of the Oireachtas and are questioned very keenly on decisions made. I do not know why there should be any problem about questioning An Bord Pleanála in general terms before the Oireachtas in relation to broad patterns of development that have been outlined by local authorities and whether they have adhered to those. I think the Oireachtas could usefully play an accountable role in broad terms as long as it is quite clear that it will not deal with the specifics of any particular application. The balance, I think, would fall in favour of going ahead with this amendment and incorporating it in the legislation.

Mr. Smith

Planning authorities may grant planning permission in contravention of their development plan by way of the material contravention route. This always arises when dealing with individual planning applications. When it comes to the case of An Bord Pleanála, they, too, must have regard to the development plans, but in my view — and this is the point I was making earlier to Senator Hederman and now to Senator Costello — it would be impossible to tie an appellant body absolutely to the development plans of 87 different local authorities in the exercise of their functions and with their wider remit. As I said earlier, we can agree to differ. I am determined and of the view that because of the quasi-judicial nature of the work of the board, it should not be subject to this kind of consideration. That is my advice to the House. This is a democratic system and I can do no more than that.

Amendment put.

The Committee divided: Tá, 16; Níl, 22.

Tá

Cosgrave, Liam.
Costello, Joe.
Harte, John.
Hederman, Carmencita.
Howard, Michael.
Kennedy, Patrick.
McDonald, Charlie.
McMahon, Larry.
Naughten, Liam.
Neville, Daniel.
O'Reilly, Joe.
O'Toole, Joe.
Raftery, Tom.
Ross, Shane P.N.
Ryan, John.
Upton, Pat.

Níl

Bennett, Olga.
Bohan, Eddie.
Byrne, Hugh.
Byrne, Sean.
Cassidy, Donie.
Conroy, Richard.
Farrell, Willie.
Fitzgerald, Tom.
Foley, Denis.
Haughey, Seán F.
Honan, Tras.
Hussey, Thomas.
Keogh, Helen.
Kiely, Dan.
Kiely, Rory.
McKenna, Tony.
Mooney, Paschal.
O'Brien, Francis.
Ó Cuív, Eamon.
O'Donovan, Denis A.
O'Keeffe, Batt.
Ryan, Eoin David.

Tellers: Tá, Senators Cosgrave and Neville; Níl, Senators E. Ryan and Fitzgerald.

Amendment declared lost.

Amendment No. 19 not moved.

SECTION 4.

Mrs. Hederman

I move amendment No. 20:

In page 7, lines 31 to 39, to delete subsection (1) and substitute the following:

"(1) (a) An appeal shall consist of a notice of appeal and a statement of the full grounds of the appeal,

(b) the notice of appeal shall be submitted before the expiration of the appropriate period.

(c) the statement of the full grounds of the appeal shall be submitted within two months of the date of publication of the planning authority decision,

(d) A notice of appeal shall—

(i) be made in writing

(ii) state the name and address of the appellant

(iii) state the subject matter of the appeal

(iv) be accompanied by such fee (if any) as may be payable in respect of such appeal in accordance with regulations under section 10 of the Act of 1982.

(e) The statement of the full grounds of the appeal shall state in full the grounds of the appeal and the reasons, considerations and arguments on which they are based.".

I hope I have got the wording of this amendment correct because I found it difficult to get the meaning across properly. The reason for this major amendment is that, similar to the four month provision which we discussed some time ago, this aspect poses enormous problems for the proper consideration of planning and development matters. I do not think the Minister has conceded any change. I hope he will consider this amendment and come back with good news.

The one month in which the Minister requires the appellant to state his or her grounds in full makes it virtually impossible for third parties in general and for some of the prescribed bodies like An Taisce to submit their views. One of the problems the Minister may not be aware of is that the planning lists, which alert bodies such as An Taisce to what is happening are very often delayed for a considerable time. Dublin Corporation are normally very reliable about publishing a weekly list of planning applications but An Taisce told me that recently a specific list did not reach them until 17 days after the decision had been made. I know that other local authorities only compile a monthly list of planning applications and it could be well into the following month before the list is published.

There is also the other point, which I do not suppose will bear very heavily with the Minister. I do not imagine he will consider it to be of much importance but I would like nevertheless to make it. Many voluntary organisations which the Minister was genuinely anxious to involve in the planning process, only meet once a month. Many of their members have to travel considerable distances to attend meetings, and unlike local authority members they are not paid expenses. This makes it difficult for them to meet to consider planning applications or planning appeals.

A further problem is that when they send a planning officer into the planning department they find it very difficult to get copies of some of the information. Sometimes since the file is with a Corporation official they cannot see it and they have to go back again. All these things add to the difficulties experienced by members of voluntary bodies. Another problem is that there can be a tremendous volume of appeals coming on stream together. It came to my attention recently that there will be three major planning appeals — Powerscourt in Bray, Lough Key in Roscommon and Carton, all of which I am sure Senators will agree are extremely important. They are all being appealed, and I know An Taisce are interested in them. Three appeals within a short time of each other make it extremely difficult for them to spread their resources to enable specialists to make their input. All these matters add enormously to the difficulty. The Minister insists that not only must they send in the grounds of their appeal in full initially but they must state at that stage whether they are looking for an oral hearing. Of course they do not know the decision the board will make about an oral hearing, and they will have put all this effort into sending their documentation to the Planning Appeals Board and there may still be an oral hearing where they will have to be represented. This puts a very unfair burden on the local voluntary groups who have a genuine concern and interest in their area.

Before I move off that point I want to mention a very good booklet on planning appeals — a guide brought out by An Bord Pleanála. On page four it says:

Fundamental principles of natural and constitutional justice must be applied in the consideration of each case. All parties to the matter raised must be fully and fairly heard by written representations and, where appropriate, by oral hearings.

If a body does all that is required of them under this section within a short period of time, one could say they have been given time to put up a good case.

I am proposing in this amendment that the appeal would consist of a notice of appeal, a statement of the full grounds of the appeal, that the notice of the appeal would have to be submitted before the expiration of the appropriate period, but that the statement of the full grounds of the appeal could be submitted within two months of the date of the publication of the decision of the planning authority. That is the distinction and what I think is intended by this section. What would happen if there was an appeal within the required time but a clerical error was made, a page was missing or something was left out? It would appear from this that the appeal would not be allowed.

Another question comes to mind: what would happen if the appeal was sent in but the wrong fee was included? I suppose the present practice would apply — if there was time available they would write to the Minister to get in the correct fee. A more complicated case would be if the chairman of a large association or An Taisce thought he was told to make the appeal, he sent in his intention of appeal, and he sent the fee but he was of the opinion that the actual grounds could be sent in later, and if, at a later stage the secretary of the same association sent in the full grounds, from what I understand, they could not be considered because, if the legislation was interpreted in a narrow way, that association had already communicated with the board and the board would not be allowed to consider that further information.

I wonder if the Minister is committed to this way of doing things. I do not want to give an inordinate length of time to an appellant, but I believe what the Minister is doing here is squeezing them to such an extent that I suspect in some cases people's constitutional rights will be impinged on and we may end up in a worse situation than we were before. I would like the Minister to address some of these points.

Mr. Costello

I support this amendment. This tells how we can deal with the timescale prescribed in the Bill and also with the question of the balance of ensuring that the person who will be affected by the development in relation to a planning application, is not unfairly discriminated against by having to complete both the objection itself, starting the subject matter and giving the full contents of the grounds of the submission in relation to the appeal. That is the crunch. You must have literally 100 per cent in by the end of the month. Even if the variation was that the objection could be lodged and that the substantial grounds would be entered but to say that the full grounds must be given means there cannot be any elaboration whatsoever after the specified period. That seems to me to be tilting the balance unfairly against those lodging an appeal. I do not think it is the Minister's intention to tilt the balance against the bodies who might be lodging it, those who would be affected by the application and so on. That seems to me to be the effect of the way it is prescribed here.

It means that effectively all the procedures have to be dealt with in a very short period and the fact that the period has been increased from three weeks to a month means that we end up with a restricted period, I wonder if it is practical or fair to insist on that time period for the totality of a submission. However, as Senator Hederman stated there may be a constitutional problem if the procedures do not allow the appellant to make a full case within that timescale and if there is a direct obstacle to submitting other material that may have a bearing on the application at a later stage — whether it was omitted inadvertently or new information had become available as a result of further research.

It seems reasonable that the subject matter of the appeal be stated and the substantial grounds be stated within the period of a month but if further relevant and important information comes to hand, there should be a channel whereby that could be brought into the appeal, I wonder if it would have a bearing on the European directives on environmental impact assessment and if the free flow of information is being inhibited in terms of making a decision in the rigid timescale being demanded. I believe that while Senator Hederman's proposal does not fully address the problem in section 4(1), nevertheless it attempts to tease out the complexities of third parties in particular trying to deal with an application that has been made for a planning decision whereby there may be substantial and complex grounds of appeal. It may not be possible to put them all together within the tight timeframe that is given here but it would be possible to put them substantially together within that timeframe. Some flexibility in that respect would give due process and fairness to all concerned.

Mr. Fitzgerald

I am not sure, and I will be guided by the Chair and the Minister, but I would like to ask a few questions regarding the provisions of making appeals. Would it not be prudent to have somewhere in this section a subsection dealing with a clear, clean title by the person looking for planning permission? In other words, do you have to have full title to the property? A person could claim a right-of-way across another person's property, which would have a bearing on the granting of planning permission. In this case, the planning authority in one of their conditions could put in that a fire escape be erected at the back of the house. The only place a person could go from that fire escape would be right through somebody else's property. As time goes by if the owner of that property look for planning permission he or she could be turned down simply because of the stipulation of a fire escape. I know the Minister has answered my question with a nod but in all fairness there should be some tidying up as far as title is concerned.

Mr. Smith

Section 4(1) of the Bill sets down the various requirements which must be met when an appeal is being made to An Bord Pleanála. It provides, among other things, that an appeal must be accompanied by the full grounds of appeal and the reasons, considerations and origins on which they are based.

This amendment from Senator Hederman would represent a fundamental change to the proposed appeal requirements. It would allow a statement of appeal to be submitted within one month of the planning authority decision with full grounds of appeal to be submitted within a further month. I do not accept that this two-step approach to the making of appeals is desirable. Indeed, the fact that an appeal does not at present have to set out the grounds has been a significant contributory factor as regards delays in the appeals process. I am satisfied that a requirement to submit the full grounds of appeal, when appealing is crucial for the efficient operation of the appeals process, and that the period of one month allowed in the Bill will give an appellant adequate time to prepare and submit his case to the board.

In all the cases made by Senator Hederman and Senator Costello, it appears this is the first time this matter has appeared on the agenda. This is a matter which has been subject to planning permission by the local authority for a period of two months at least and, on average, for a period greater than that. It is not the first time we have heard about this situation. Obviously people who are interested in the planning application at that time will have lodged objections to the county council or whatever.

Already in the context of our earlier debate we decided on an objective of a four month limit for An Bord Pleanála. If we now begin the process of slowing up the appeal process into the board we will constrain the board in trying to meet that four month objective.

We will go back to the 1983 Act. Section 17 (a) requires the person within a period specified in the notice being a period of not less than 14 days beginning on the date of the service of the notice to submit to the board a written statement of his grounds of appeal. Why was that section put in in 1983? After the 1976 Act people submitted their notice of appeal and it got so bad that the requirement was put on the independent authority to write to the appellant to submit his or her grounds of appeal. That was scarcely the way to do business. If one is interested in making an appeal we want the appeal to be made and to submit the grounds for it all at the same time; in other words, to show that people are truly in earnest about what they are trying to achieve. The whole thrust of the Bill is to make it more practicable and to create the procedures which enable the board to do their business efficiently. It is not fair to require the board to write to so-called appellants to send in their full grounds of appeal. We are asking the appellant to do it. That is very reasonable.

Senator Hederman asked what would happen if documents were lost or something happened? Of course, common sense would be used about all these matters. It is not a question of absolutes if a mistake was made or something over which nobody had real control developed. Clearly it is a case for common sense to be used. In this instance also, we have moved from three to four weeks. Up to now a person could lodge an appeal and he or she had 21 days to so do. Now, we have extended that to one month and added the additional requirement to put in the full grounds for appeal at that stage. It is all part of having a more sensible approach in a way which will enable the board to take their decisions within the time specified. We have to stick to that.

As I said earlier, most people agree we should tidy up the planning appeals process. My difficulty is that each time I try to put a legal mechanism in place to achieve that there is a corresponding amendment to slow up the process. I know that in certain instances it will require appellants to prepare their case within a timeframe which they may not have envisaged in the past but I would remind the House that we are not at the starting process. We are now dealing with an application which has been before the county council for at least two months. I am looking at that county council making their decision and I am waiting for them to respond one way or another. My attitude is that if I had two months advance notice that there is a possibility that the local authority will refuse this application or that the council will uphold it, I have a clear two months notice to prepare my case and, at least, to think about what might arise. If it does not arise it is no harm. If it does I have had that preparation time. Heaven knows, in the Ireland of today where we are trying to improve the systems we have, it should not be too great an expectation that a person who is interested in a planning application having that kind of notice would prepare the full grounds for appeal and have it dealt with expeditiously.

As I mentioned in my earlier contribution, it is in everybody's interest to have quick effective decisions which take account of all considerations. Therefore, I ask the Senator to withdraw the amendment on the basis that this is very much part of the objective to enable the board to take their decisions within the prescribed four month period.

Mrs. Hederman

I gather what the Minister says in the House does not have any legal standing. I cannot produce the Minister's statements and use them as evidence that, for instance, I can send in extra information if I have made a mistake. I understand that what is in the Bill is the relevant material. That is what is important. The Minister is now saying that if a mistake was made common sense would prevail but what does he mean by that? I can only be guided by what I read in the Bill.

The Bill says that without prejudice to section 9 an appellant shall not be entitled to elaborate in writing upon or make further submissions in writing in relation to the grounds of appeal stated in the appeal or to submit further grounds of appeal and any such elaboration, submission, or further ground of appeal that is or are received by the board shall not be considered by it. Is the Minister trying to tell me now that if a mistake is made common sense will prevail and that they will consider it? That is in conflict with what is here. Which am I suppossed to heed or believe to be the true case?

The Minister makes a good point — and I accept it — that by the time the appeal comes to this stage it has already been two months before the local authority and that therefore, everything is known about it. However, I made a point earlier, which the Minister cleverly, or happily, avoided answering, that there is provision between the time a developer makes an application to the local authority and is refused for him to go to the Planning Appeals Board with different plans. The Minister was not in the House when I said this, so I hope he will bear with me as I say it again, but I had the unfortunate experience of a planning appeal which I was very concerned about which had been refused by the local authority only on my prompting because it was in serious conflict with our development plan. It went on appeal.

The date of the oral hearing was changed three times. I broke my holidays at considerable expense and inconvenience and arrived at the oral hearing to find that the developer had put in different plans which largely pulled the rug from under the case which I was making. Then the case went ahead and I had to pay £15 — I mentioned this before — even to have my voice heard. The £15 was demanded of me and I had to put my money on the table. The inspector said it was not his fault and, of course, I understood that; these were the rules laid down. The whole thing was starting to be quite an expensive day.

I found the applicant had substituted a different set of plans, but the appeal went ahead. Some time later I received a communication from the board to the effect that because it was to a certain extent a different case which was being put up to the board as compared to the one which was put to the local authority, the board were now scrubbing the whole thing but they did not refund me my £15 or indeed my train fare. The whole thing was scrapped.

I am trying to make the point that the Minister says we can have a case ready against the possibility of an appeal, but the reality is that the plans can be changed and I do not think that the Minister has changed that procedure in this Bill. It is fairly unlikely that a voluntary body would have the team of experts the Minister would have at his disposal. It is not difficult for the Minister's Department and, if I may say so there are occasions when they are not that quick about making various decisions, although I will come to that later. The Minister has a team of experts to get all this data ready for him. I think the Minister has a very limited understanding of the voluntary organisations that, I understand, he is anxious to facilitate. I do not know whether it was he or somebody else who went to Rio. Here I have the national report on the United Nations Conference on Environment Development which is a splendid document——

Acting Chairman (Mr. McKenna)

That has nothing to do with your amendment.

Mrs. Hederman

How do you know what I am going to say?

Acting Chairman

It is a report on Rio. I ask you now to keep to your amendment.

Mrs. Hederman

My amendment No. 20 is about the opportunities the public will have to be involved in the appeals process and the extent to which they should be included. The quality of the environment can only be maintained and enhanced if all citizens and communities play their part. The programme emphasises the need to intensify environmental awareness, information and promotional programmes so that people will know how, as individuals, they can act positively towards their environment. It is all very fine for that to be said in Rio but the reality of this section is that the public will be crucified by the unreasonable sections of this Bill.

I would like to remind the Minister, on top of everything else, that the planning charges which are being hiked up everytime one goes to another appeal are such that it is now virtually impossible for any organisation to make an appeal. The Minister talks about them getting all this data so that they can be ready in the event of an appeal being made but they are so busy nowadays trying to raise funds to pay money into the Department for the planning charges that they find it very difficult to have all this information ready in the likely or unlikely event that there might be an appeal. I ask, is the Minister being reasonable? Has he any appreciation or understanding of what local bodies are put through that he would imagine that in addition to paying all these planning charges they could also pay people to get this data ready? It is quite unreasonable.

An Cathaoirleach

This debate has been going on for at least half an hour and I am anxious to conclude it as quickly as possible, one way or the other.

Mr. Costello

This amendment, and indeed the two following amendments, are very much at the centre of the problems we are facing on this side of the House and that we are seeking to solve to some degree. We are endeavouring to get a fair balance in relation to the new timescale that is being established here. I put down amendment No. 17 to provide that the appropriate period would mean the period of one month beginning on the day of making public the decision of the planning authority as distinct from giving the decision, because there is a sort of no man's land between one and the other. The Minister has indicated he will improve that situation with some form of uniform standardisation for the local authorities and I welcome that.

The second point is that the appeal must state the full grounds and this is where the problem arises. On the understanding that we will get regulations that will cover the publication of the decision that will improve the position and make it less haphazard, a person then has to lodge the appeal and the full grounds and that must be done within a month. What I want to find out is whether the Minister would be prepared to accept that the appeal would be lodged and that the substantial grounds would also be lodged on the understanding that other material may be introduced in error or inadvertently or may arise because it may be a complex issue.

The Minister says people should be preparing their case two months in advance but that is not the way that matters are dealt with. For example, a residents' association may or may not be well organised. They have to hold meetings. They cannot simply make a decision overnight as to how they are going to proceed, so a third party is at a disadvantage. Of course An Taisce, who have obviously done a lot of lobbying on this issue are concerned with the matter too. If we could change it in that fashion, there should be at least the facility whereby other material could, if necessary, be introduced at a later stage on the understanding that we would stick to the time schedule. We do not want to depart from that; I believe we should stick to it. However, we should ensure that we do not tilt the balance against those who will be the recipients of a planning decision that may not be in their interests, and may not be one that they would wish for, and that they have the opportunity to put forward all the material that becomes available to them so long as they have made the substantial case in within the period specified.

Professor Conroy

I have not yet had the opportunity to speak on this section. I will be very brief. It is a great pity that the trend of this debate has been to oppose the Minister. The purpose of the section is to try to put in time limits and in regard to each limit, amendments are being moved which would have the contrary effect. Coming through in this section are objections to this and objections to that. That is sad when it is taken for granted that there will be an appeal against virtually every development in this country. Surely all planning applications are well and thoroughly considered by the appropriate statutory planning authority and a decision given.

I would have thought it more appropriate to consider the position not of the objector but of whoever is trying to put forward the development. In that sense I would have some sympathy with Senator Hederman's suggestion in that a developer who is given permission with, perhaps, 37 onerous conditions attached to it, has an extremely tight time schedule in which to prepare his answer and appeal against those objections. This is what we should be looking at.

However, I would agree that we should keep the limits and put the pressure on the developer to put forward his appeal and give the grounds for it within a short period of time. That is the way we should be looking at it instead of assuming that every development is going to have an objector which unfortunately seems to be the case.

Mr. Smith

I want to make one or two points. Once again Senator Hederman has sought to categorise me as somebody who does not understand this problem and the problems of residents' associations and others who might want to object to a development.

Let us try to put it into perspective. We have already agreed in a previous section that the board will be obliged to make a decision within four months of receiving the appeal. There is now a requirement to lodge notice of the appeal and the four months starts from that time. That is already agreed in this legislation today. Now we are asked to allow a further month for the full grounds to be submitted. Other parties have to be informed of those grounds and they also have a month to respond. Assuming a couple of days elapse in the county council, we are now nine weeks into the four months. I am supposed to be the one who does not understand the consequences of these amendments, but we are now nine weeks into the four months allowed as a result of Senator Hederman's amendment and that is confining the board to a timescale which is unacceptable.

I am also attacked because local authorities are imposing charges which make things impossible for objectors. Let us face facts. The resources available to An Bord Pleanála from fees represent 20 per cent of the cost to them. Taxpayers are, therefore paying four out of every five pounds for that system and let us not forget it. They are not involved in the appeal but they are providing four-fifths of the costs. It is not fair, therefore, to accuse me of not understanding this system and at the same time to talk about costs without looking at the full picture.

Finally, I want to say to Senator Hederman, may the Lord keep any Minister from having to legislate for mistakes. Is it reasonable to expect me to take into account the kinds of mistakes some people make in an application form and enshrine them in legislation? I said that common sense would prevail. If a person submitted a 12 page document in an appeal and clearly page 8 and 9 were missing, of course that would be dealt with by common sense but to try to fiddle with legislation to take account of mistakes that might or might not happen would not be reasonable. I have tried to be reasonable.

This Seanad has already provided for a four months time limit starting from the lodgment of the appeal. Any decision taken now would restrict the board to an extraordinary degree. Amendments must relate one to the other. We are not just taking an amendment now as if no debate had taken place this afternoon. Amendments must fit in with what we have decided already. I am not putting up resistance for its own sake. I think the legislation is practical and workable and I am sure that the response to people who are concerned in these areas will be to meet those requirements in the future in a new, different and more business like way.

Mrs. Hederman

The Minister has misrepresented what I said. I asked what would happen if a mistake was made. I said what I understood the Bill to mean, which was that in no circumstances could additional information be sent in. I read out the section and I am not going to read it again. The Minister subsequently said that common sense would prevail and I asked him to elucidate on that to tell us what he meant. Was he saying that I was to believe what was in the Bill or to believe him, and how far would that commonsense go? That was all I was asking.

The Minister has not explained anything other than to say that if some pages were omitted that circumstance would be dealt with. We have no way of knowing what would happen if a chairman wrote and sent in a certain amount of information and the secretary sent in the rest. If both submissions arrived by the same post would they be accepted? If they did not arrive by the same post, would they not be accepted? This must not happen. I do not think I am accusing the Minister of not understanding; I think he is unsympathetic to the realities a voluntary organisation has to face. If the Minister said he was fed up with these voluntary organisations, that he wanted to get rid of these third party appellants because they were a thorn in our sides——

Mr. Smith

That is outrageous.

Mrs. Hederman

I said if the Minister said that I would say that at least he is being consistent with the Bill.

I read from these very glossy booklets that are issued and are brought to Rio. This is the image we like to have abroad. This is what we would like to portray as the reality. ENFO says that people must get involved, that they can make appeals and representations to An Bord Pleanála, that it is their duty if they want to help make Ireland a better place for their children and so on. I am not going to quote all of it but that is what we are being told. However when we try to implement what is in these booklets and make Ireland a better place for our children, when we try to provide better opportunities for our young people to get jobs here and go down the route we have been going for all these years, we know what happens. Our record is nothing to be proud of and it is time we took a fundamental look at it to see to what extent we are militating against the future of this country by implementing legislation with our eyes closed. We have done it in the past and we continue to do it and these may be the worst we could do for the future and for the economy of this country.

I do not think the Minister should give the impression that people like myself want to impede progress. I have made it clear from the word go that that is not the case. I have beseeched and begged the Department and the Minister's predecessor to speed up An Bord Pleanála and to have more efficiency in the board. I have not asked that it be done at the expense of the small person whom the Minister tries to encourage to enter into the planning appeals process but makes it so difficult for them. The local authorities impose charges because some were told to impose them and many did not do it very willingly.

The Minister tries to make out that the taxpayers are bearing the brunt of the costs of irrelevant and frivolous appeals. The reality is that the number of appeals by third parties was approximately one-fifth of all appeals lodged. Of these the planning authority decision was confirmed in about one-quarter of the cases, modifications were made in half of the cases and the planning authority decision was reversed in the remainder. Therefore, we are talking about a quarter of one-fifth. In other words, in one out of 20 the board did not uphold the appeal.

Were there frivolous appeals? I am not sure. I do not have that information. We are talking about a very tiny percentage of the appeals where one could not say it was not perfectly reasonable for them to take the appeal because the Appeals Board upheld some aspect of them. I do not think we should get the matter out of proportion. It is something very small and limited and the vast bulk of appeals are solid appeals taken by people who have, as the Minister's own ENFO says, a real anxiety and a duty to make Ireland a better place for their children.

Amendment put and declared lost.

Mrs. Hederman

I move amendment No. 21:

In page 7, subsection (2) (b), line 44, after "appeal" to insert, "but where the Board decides to hold an oral hearing of an appeal the grounds of appeal can be clarified, elaborated on or added to, and an extension of time for the appeal may be agreed between the applicant and the Board.".

You will be pleased to hear, a Chathaoirligh, that there will be no need for me to go back in any great detail over what I have said before because the same arguments apply. In other words, if one is granted the extreme favour of an oral hearing by the board one would be able to clarify matters sent in in writing and elaborate or add to them at the hearing. That is really the nub of it. Also, an extension of time for the appeal may be agreed between the applicant and the board. Obviously if there is going to be an oral hearing it is going to take extra time and perhaps some arrangement could be entered into to facilitate that?

Mr. Smith

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 22:

In page 7, between lines 44 and 45, to insert the following:

"(c) The relevant Planning Authority shall provide such information and technical assistance as is practical to appellants in complying with the requirements of subsection (1) (d).".

I am sure that the Minister will accept this amendment. Subsection 1 (d) is central to appeals. It states that the full grounds and the arguments on which they are based must be given. In other words, a totality of information must be provided when the appeal is being lodged. Since the Minister has stated that he is very much in favour of transparency and co-operation and since there is now an extra responsibility on the appellants to provide the totality of evidence from the word go, there should be some degree of assistance to those who might require it. Many of those who are appealing could be people who lack technical information or knowledge of how to go about appealing and it would be appropriate that the officers of the local authority would be available to co-operate with people to help them expedite matters. That is central to it because we agreed that the purpose of this Bill is to ensure that the timescale is tight, that it is streamlined and that everything is dealt with expeditiously.

However, it is not just a matter of haste. We must also ensure quality by taking account of the full planning and environmental considerations. We must ensure that those who are lodging the appeal are assisted in every possible way by those who have the technical knowledge and experience to assist them. This is also in keeping with the Local Government Act, 1991 which makes provision for co-operation with citizens in matters relating to local government and the civic charter that is operational in Dublin city relating to co-operation between the local authority and the planning authority. For those reasons I would be delighted if the Minister would accept this amendment.

Professor Conroy

The amendment is of general application. In other words, if an applicant has got permission to build a garage, or whatever and has had conditions imposed by the planning authority, that planning authority, if this amendment was allowed, would be obliged to give technical assistance to the applicant. It might be an application looking for an extension. In other words, the authority would give him assistance to appeal technically against the decision of the local authority.

Mr. Smith

Section 5 of the Bill requires planning authorities to make all documents relating to decisions available for public inspection. I do not accept that it would be right in principle to require the local authorities to provide technical assistance on the basis proposed in this amendment. The local authority is always a party to the appeal. It would be quite wrong if one party provided technical assistance to another party, especially if the two parties were at odds. Let us try to examine this.

The local authority, presumably, is being asked to give technical assistance to a group appealing to An Bord Pleanála against a decision that the county council have taken. In this instance, the technical officers of the county council have a totally different view to that of their opponents and yet they are supposed to be required by law to give them technical assistance. If Senator Costello uses his imagination he will know that I could not accept such an amendment. By no stretch of the imagination could this be interpreted as the Minister not wanting to be open or to make documents available.

There is another factor. The local authority must devote their resources in the planning area to the job they are expected to do, which is to deal with planning applications. The appeals procedure is to be dealt with by An Bord Pleanála. I am extremely anxious that a greater consultative process would be developed between the local authority and the people applying for planning permission, even in advance of the original submission of the planning application. After that, interested parties can make their views known and have discussions. To enshrine a provision of this kind in law requiring the local authorities to do as suggested would clearly be unacceptable and would have very serious legal ramifications.

An Cathaoirleach

Is the amendment being pressed?

Mr. Costello

I appreciate the Minister's point that there would be two bodies at odds in the application and the appeal, the planning authority and the appellant. We are asked in section 4 (1) (d) to give full grounds — not just substantial grounds — in a very short space of time and this is putting considerable pressure on individuals. Third parties, in particular, may find themselves without the necessary expertise. They do not have anywhere to go. I am not talking about the planning authority making recommendations; I am talking about the procedures. The planning authority will give whatever technical information is required to put the appeal together in a comprehensive fashion so that there is no error because there is no second shot at this. It must be done in the first appeal. If a mistake is made it cannot be rectified. The Minister said there should be a consultative process at an early stage. It should be more precise than that. The local authorities should make available technical assistance as distinct from making recommendations. Their functions should be to assist in the expediting a correct appeal within the time scale being imposed. I am not sure whether the conflict the Minister spoke about is inherent in this amendment. I do not think it is. This is a different function in the procedures of making the appeal to ensure the maximum information is provided so that no mistakes are made and that it is kept within the time frame.

Professor Conroy

This would be virtually a charter for frivolous appeals. It means that anyone could look for the information, they are entitled to do, and they would then be able to demand that the planning authority would put together a case which was technically correct. It would mean that if anyone wished to object on any grounds, however frivolous, the planning authority would be obliged to put in an appeal. The mind boggles.

Mrs. Hederman

Some minds boggled in 1978 when the local City Council was drawing up the 1980 development plan. To avoid confrontation in the planning area, I got together a group of 14 associations in my area to submit representations to the local authority about the development plan. They took a very constructive approach. We approached the local authority and asked if they would make us a grant of £100 towards the considerable costs of the report, such as the maps. The chairman of the planning committee said it was outrageous that somebody would look for money to encourage people to make a presentation for something which might conflict with the planners' plan and the City Council plan.

Happily, I can say that in our local authority that sort of thinking has been relegated to where it belongs — back in the fifties or sixties. We believe in the open approach and in encouraging people to be involved in the planning process. Our planners give considerable help to various organisations who want to be assisted. People reading these debates in ten, 15 or 20 years' time may be outraged by the idea that this amendment was thrown out because it would be wrong to assist such a group. It is all a question of thinking. I am surprised the Minister can speak in such eloquent terms of the availability of all documents for public inspections. All the documents are in the planning authority. We could contrast that with the earlier reply as to why we could not have the inspectors' reports. It is quite common for a planning decision given by a local authority to be in conflict with a report from a roads engineer, a report on a sewerage scheme or whatever. The planning committee and the manager have to take an overall view. It is somewhat ironic that the Minister is obliging the local authorities to make all this information available for public inspection and yet he will not apply the same criteria to the inspector's report which, I believe, is information which should be available. The annoyance caused to the disappointed party is bad enough but when they cannot even find out the reasons they become more alienated. If the reports were available, case histories could assist future appellants in making applications that would conform with what the local authority required. I am afraid the Minister is not being very logical.

Mr. Smith

Since the 1963 Act public participation was something which was encouraged. We have moved gradually and progressively further down that road and that is to be welcomed. It is quite unfair to make a comparison between a situation where you bring 14 voluntary organisations together to try to interpret what they think would be the best planning for their area and to construe that as being the same as a legal requirement on a local authority to provide technical assistance in a situation where they could be clearly at odds with the appellant.

When planning, we are talking about a situation invariably where there are at least two sides, possibly diametrically opposed to each other in terms of what is to happen. The Senator is asking the local authority in those circumstances to provide technical assistance to one side. I am warning the Senator that if something like that was decided it would end up in the courts. Some judge would have to decide very heavily against the local authority, and they had better start finding the resources to pay. We cannot, in law, take sides or ask public officials to take sides in that way.

We will take it to its logical conclusion. An Bord Pleanála make a decision. Would we expect An Bord Pleanála to provide technical assistance to somebody who was taking the board to court against the decision they took against that individual?

I regret very much that Senator Hederman has again returned to the inspector's report. She compared that to the stage at which the local authority is producing all relevant documents in relation to a decision it has taken on planning permission. Everybody is made aware of the reasons for the decisions. One cannot compare that to a situation of the inspector's report after which the decision is taken and where the board is not obliged to adhere strictly to what is in the inspector's report. To make those two comparisons is regrettable and I doubt if contributions like that in the context of what we are trying to achieve here are fair. I certainly do not regard them as so.

I am prepared to demonstrate that we will have, and continue to have, a transparent system. I said this earlier today in the context of a number of changes I have already put in place and others I am planning in the context of the consolidation of the regulations in public notices and a variety of other areas.

I say to Senators to produce from anywhere in Europe today an appeals system or a planning system that is more open, more equitable, or more balanced. When you have done that I will begin to listen more closely.

An Cathaoirleach

We have dwelt on this and I do not want to go through the arguments we made before. This is putting pressure on the appellant to ensure that everything is complied with in the one submission that is made at the initial stage. It is not leaving the way open at all to elaborate any further in writing, whatever about orally, if an oral appeal is allowed. It is restrictive in relation to how an appellant can deal with presenting an appeal. I would be quite happy to see the subject matter of the appeal being stated and the substantial submission all put together at the same time. The way should still be left open for matters that might arise for whatever reason, particularly because of the complex nature of appeals.

Appeals and planning applications will get more complex as time goes on, because there are more factors involved. There is the environmental factor and greater citizen awareness in relation to developments that are taking place. We should not restrict the appellant to just the one attempt at this initial stage. I do not want to open it up to all sorts of further submissions being made, but it should be possible to present information that might not be available initially or some matter that was inadvertently omitted. This would introduce an extra element of fairness to the procedures and would make sure there was no question of unconstitutionality because we would have adopted fair procedures where all relevant information could be presented. We would also be acting in accordance with the European directive in relation to environmental impact assessments.

The Minister might give a sympathetic hearing to this amendment. It is tilting the balance a little in favour of the appellant. We should deal with the appellant's position with more consideration.

Mr. Smith

I have very little to add that has not been said already in response to other amendments. This amendment sets out to cut into the principle of the Bill. I said earlier that we do not want a host of separate submissions to return us to the position we are in at the moment, because this delays the board in making decisions and would make it impossible to adhere to decisions which have already been taken in the Seanad earlier this afternoon.

It is not unfair to participants in appeals because section 9 will establish a mechanism whereby a participant can be allowed a further opportunity to comment where the board considers it is appropriate or in the interest of justice to do so. I would ask Senator Costello to bear in mind that this amendment, and related amendments, if passed, would lead to only one logical consequence — the board would not be able to take the decisions and meet the objectives we have set for them if a situation were allowed to develop where appallants could continually submit new submissions in relation to their appeals.

We have tried to move away from the experience we have had up to now, where we have reached the illogical position that the board is required by statute to write to the appellant requesting submission of appeals. We had to go that distance to require people who had already submitted a notice of appeal to submit the full grounds. Why was that necessary? It was necessary because of the delays.

We are moving a stage further now. We are requiring the appellant to submit the full grounds of appeal, the notice of appeal and the request for the oral hearing at one stage. We are giving an extra week, in terms of previous experience, to enable them to do that. That is as far as we can go. This amendment, in tandem with others, totally frustrates and cuts across the ability of the board to proceed in the way we are now proposing.

Mrs. Hederman

I ask the Minister for clarification. He told us earlier that common sense would prevail if a mistake was made. I asked him to expand how far that could go. When there is contentious appeal between a third party developer and a third party in the planning authority it does not matter which side the local authority is on. This is probably exacerbated when the local authority is on the same side as the developer. The developer may make inaccurate, false and misleading allegations or he may make claims which are incorrect. A relatively simple example would be where he says he wants to convert premises into offices while, for the last number of years, they have been used, illegally as such. They send that information in towards the end of the period in which third parties are allowed to make representations.

The Minister emphasised the power of the board to request submissions or observations. How will the board know that information is inaccurate or misleading? Sadly, the third party or An Taisce may have no way of even alerting the board to this situation because they have been penalised to such an extent that they are not even allowed to bring such information to the board's attention. The board is actually forbidden to consider any letter or representation which might be made. Am I mistaken in saying that, before this Bill comes into force, the board has the power to dismiss an appeal if the appellant refuses to send in the grounds? The Minister is nodding his head very carefully, telling me that that is the case. I do not see why he is making such heavy play of the fact that the board has to write to these people if they do not send in the grounds of their appeal. The board can either dismiss the appeal or decide it in the absence of that information. That, in itself means that the board has a method of dealing with an appellant who is being dilatory about sending in their grounds of appeal.

An Cathaoirleach

The Minister has replied. If the Minister wishes to make a further comment, he may do so. Then I will ask if the amendment is being pressed.

Mr. Smith

Under the 1983 Act the board was obliged to request the appellants to submit the full grounds of appeal. It seemed totally illogical to me, if somebody was interested in making an appeal, that the requirement was on the board to request them to submit the full grounds. That was the point I was making. We are moving away from that. Both Senator Costello and Senator Hederman seem to take the view that the new situation is loaded against somebody who wants to appeal against the planning permission.

Everything is on the table. Section 9 comes into force where the developer has made some changes or in certain types of situations, and the appellant could not have been aware then or did not have an opportunity to learn about them. In that case the board would be obliged in normal justice to give the appellant a further opportunity to address these questions. That is why this section is there. In the normal way, the developer's proposals are available to the appellant so that he can make a judgment on them. It is a much more open and better way than we have at the moment, where you have a person capable of submitting at any stage within a week of the board taking a final decision. There could be another submission. This is a far better system.

Amendment put and declared lost.

Mrs. Hederman

I move amendment No. 24:

In page 8, subsection (4) (b), line 8, to delete "shall not" and substitute "may".

Progress reported; Committee to sit again.

Seanad Éireann debate - Wednesday, 24 Jun 1992