Local Government (Planning and Development) Bill, 1998: Committee Stage.
Section 1 agreed to.
NEW SECTION.
I move amendment No. 1:
In page 4, before section 2, to insert the following new section:
"2.–In carrying out their functions under this Act, the Minister, the Minister for Arts, Heritage, Gaeltacht and the Islands, and a planning authority, shall have due regard to the Convention for the Protection of the Architectural Heritage of Europe done at Granada on the 3rd day of October, 1985.".
I welcome the Minister and am delighted that, as the senior Minister in the Department, he is taking this important legislation. In fully supporting the Bill, I tabled my amendments in an effort to improve it. Many Members who have served on local authorities know planning legislation is extremely difficult to interpret and implement. In addressing this aspect of the planning code, I want to ensure we end up with the best possible legislation. It is in that spirit I tabled my amendments.
Much of the Bill is inspired by the Granada Convention of October 1985. We have been slow to bring these conventions into law. The Granada Convention was ratified by the previous Government. The Bill falls short of that convention in some respects. To redress this it would be useful to provide that regard should be had to the convention in implementing the Bill. Having thought the Bill transposed the convention into law, I would not like to discover, perhaps following a protracted court dispute between a local authority and a property owner, that the provisions of the convention have not been fully met in legislation. This is why I tabled this amendment.
I, too, welcome the Minister to the House. Members on all sides supported the Bill on Second Stage. However, it is possible to improve the Bill and it will be fine tuned as it is put into practice.
I support this amendment concerning the Granada Convention. On Second Stage I stated that the Granada Convention was the foundation of the Bill and that I hoped the main provisions of the convention would be transposed into law. I wish to ensure the principle of the convention is adhered to in the legislation.
I thank Senators for the amendments they have tabled, all of which are in the spirit of improving the Bill, as outlined by Senator Gallagher. I have considered all the amendments in that spirit, some of which I will accept as they will improve the Bill.
This is important legislation and it was welcomed as such by the House before Christmas. Section 2 is a central provision and provides that the planning authorities would be required to include a record of protected structures in their development plans. The protection of those structures due to their special architectural, historical, archaeological, artistic, social or technical interest, is central to the Bill.
This amendment would require the Ministers for the Environment and Local Government and Arts, Heritage, Gaeltacht and the Islands and local authorities to have regard to the Convention for the Protection of the Architectural Heritage of Europe when carrying out their functions under this Bill. Ireland is a party to that convention under the Council of Europe. The objectives of that convention are similar to, but less detailed than, the objectives of this Bill. I accept Senator Gallagher is trying to ensure nothing falls through, but the Bill is more detailed than the convention.
The Bill enables Ireland to remove reservations it had to the Granada Convention relating to the power of authorities to require work to be done on heritage structures. The Bill, plus the legislation to be shortly brought before the House by the Minister for Arts, Heritage, Gaeltacht and the Islands, Deputy de Valera, will assist Ireland in meeting its obligations.
Section 2 requires local authorities, for the purpose of protecting structures which are of special architectural, historical, archaeological, artistic, scientific, social or technical interest, to include a record of such structures in their development plans. This section derives directly from the convention and requires the protection of all such buildings.
I accept the spirit in which the amendment is tabled. However, it is unnecessary as it could cause confusion by requiring local authorities, not only to refer to this Bill, which is more exhaustive than the convention, but also to the Granada Convention when exercising their functions under the Bill. For that reason, I ask Senator Gallagher to withdraw the amendment.
The amendment would be similar to including a provision in legislation transposing an EU directive into law and then requiring local authorities to have regard to that directive. It is a double whammy. If the Senator re-examines the Bill he will note that it is more extensive than the convention and the legal advice is that it is unnecessary to mention the convention in the Bill. I ask the Senator to withdraw the amendment.
I thank the Minister. I accept there are sections of the Bill which go further than the Granada Convention. However, the Bill falls short in terms of meeting some of the provisions of the convention. I tabled my amendment to avoid any doubt that it should be a legal requirement that the Ministers involved and the planning authorities shall have due regard to the convention when carrying out functions under the Bill.
Having listened to the Minister and having regard to my views on some areas in which the legislation may fall short of the convention, I have tabled further amendments. I will withdraw the amendment at this stage and consider it again for Report Stage.
Amendment, by leave, withdrawn.
SECTION 2.
Amendments Nos. 2 and 4 are related and may be taken together.
I move amendment No. 2:
In page 4, subsection (1), line 41, after "interest," to insert "whether intrinsically or by reason of their setting,".
I put down this amendment because, unfortunately, given that planning legislation has not been updated much since 1963, a great deal of it derives from interpretations and decisions of the courts. One never knows what is going to be the outcome of a planning case in court. This primary legislation is an effort to clarify our intentions in protecting our heritage.
In line with the Granada Convention, this amendment provides that a structure could be of special interest by reason either of its intrinsic interest or its setting. I had experience of how this might arise last year as a member of my local authority which was reviewing its development plan. Tullamore had the benefit of an inventory prepared under the auspices of the Department of Arts, Heritage, Gaeltacht and the Islands. We were lucky enough to be one of the first areas in the country to have that inventory before us for our consideration.
In trying, in advance of this legislation but knowing what was coming down the line, to incorporate the recommendations in our development plan, we had difficulty deciding whether buildings or structures in themselves were of interest or whether they were of interest as part of a terrace of housing, a streetscape or their wider setting. A structure or building in one street or area might not seem to be of great importance, but in another context it could be a vital part of the streetscape or the architecture of that area. It would be useful to provide that a structure could be of special interest because of its setting, along with its intrinsic interest or apart from it.
As regards amendment No. 4, the Granada Convention requires identification of groups of structures as well as individual structures. Amendment No. 4 is designed to comply with the convention and to allow streets, streetscapes, groups of buildings or other such structures to be included on the record of protected structures. It is a practical question which is already being addressed by local authorities in many respects. I hope my amendments will be accepted because they will assist the Minister in order to assist local authorities in carrying out their duties under this legislation.
I have no difficulty with the spirit of this amendment, however this point is specifically covered in the Bill. The effect of this amendment would be to require local authorities to include in the record of protected structures not only buildings which are of themselves of special architectural heritage but also buildings which are of interest, as the Senator said, because of their particular setting. The difficulty with accepting this amendment to this Part of the Bill is that the inclusion of a building in the record of protected structures has certain consequences under the provisions of the Bill.
One good example is that the protection of the Bill extends to the interior as well as the exterior of buildings. Works which would materially affect the character of a protected structure will require planning permission. It is important, therefore, that the inclusion of a building in the record is based on the intrinsic merit of the building, for certain provisions in the Bill. Therefore, it would not be appropriate to include the record of a building solely by reference to its particular setting.
However, it is important that we enable local authorities to do what Senator Gallagher said – and he gave a practical example – that is, to protect important streetscapes, such as Georgian squares, etc., in various parts of the country. This is dealt with in section 33 which amends the Planning Act, 1963, to require local authorities to include objectives in their development plans "for preserving the character of places, areas, groups of structures, building heights and townscapes which are of special architectural, historical, archaeological, artistic, scientific, social or technical interest or contribute to the appreciation of protected structures". This provision will meet the Senator's concerns that buildings which should be protected because of their setting will be protected. Under the Planning Act, 1963, permission is required for all works to the exterior of a building other than "works which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures".
The inclusion in the development plan of objectives for the preservation of places or groups of buildings will ensure that the works to the exterior of such buildings will require planning permission where they would not fit in with the character of surrounding buildings in that particular group. Section 33 is more appropriate for this provision which is adequate and meets the concerns of the Senator following his practical experience. On that basis, I ask the Senator to withdraw his amendment.
I welcome section 33 and the amendment to the 1963 Act. However, it is my understanding that the Granada Convention requires identification of groups of structures as well as individual ones. It should be possible under this legislation for the record to include groups of structures as well as individual ones. I have been advised that this is one of the areas where the legislation may fall short of the provisions of the convention. While I welcome the general provisions of section 33, it would be desirable to provide that the record now being set up will allow local authorities to include groups of structures in addition to, or as an alternative to, individual buildings or structures.
As the Minister referred to section 33, I wish to come back to it. Senator Gallagher referred to streetscapes which he dealt with adequately. However, my point relates to something which happened to me in the past week – there are no set guidelines in relation to this matter. The description "of artistic, historic or scientific significance" is very subjective. I would like to see the provision of general guide lines where any member of the public can say whether the description does or does not fit.
During our rezoning, which is going through at present, an individual received a letter about a house which had been put on the preservation list. From the point of view of scientific significance, it was an old shop; from the historic point of view, it is only 40 years old and from an artistic point of view, it is painful to the eye. Can guidelines be provided under section 33 so we can understand why a specific house is included?
That is dealt with in section 3. I accept the Senator's point. Guidelines will be published and are currently being drawn up by my Department and the Department of Arts, Heritage, Gaeltacht and the Islands, for the convenience of the public and local authorities. They will be as simple and straightforward as possible. However, as the Senator said, these matters are subjective and judgments must be made. It is an important point but I am satisfied the provisions of the Granada Convention on the protection of streetscapes and structures is adequately dealt with in section 33.
The original point I made about the inclusion of the building in a record of protected structures has consequences under the provisions of the Bill which will not allow me to accept the amendment. I accept its principle but I ask the Senator to accept that it is enshrined in section 3 and that the requirements of the convention are covered by that section.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 4, subsection (1), line 42, after "structures" to insert "and shall include in that record every structure which is in the opinion of the planning authority of such interest within its functional area".
The amendment is designed to oblige the registration of protected structures. At present, such registration is optional under section 5 which states that the authority may add a site. The amendment would improve the legal protection afforded to protected structures.
Section 2(1) requires a planning authority to include a record of protected structures in its development plan. That would become a mandatory function of the planning authorities. The Senator seeks to insert a provision to provide that the local authority shall include in that record every structure within the area which it believes is of special interest.
While that is implicit in the section at present, the Senator is seeking to state it explicitly. I have no difficulty accepting the amendment.
Amendment agreed to.
Amendment No. 4 not moved.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
I move amendment No. 5:
In page 6, between lines 8 and 9, to insert the following new subsection:
"(4)Where a disagreement arises between the Minister for Arts, Heritage, Gaeltacht and the Islands and a planning authority as to whether a structure should be included in the record of protected structures, that Minister may apply to the High Court for a declaration as to whether the structure should be so included.".
Obviously one hopes disagreements will not arise between the Minister for Arts, Heritage, Gaeltacht and the Islands and a local authority over whether a structure should be included in the record of protected structures. In the majority of cases agreement can be reached through consultation between the two parties.
The amendment seeks to deal with a worst case scenario where a disagreement arises between the Minister and the planning authority on this issue. It is advisable to provide a mechanism to resolve such a dispute if an authority, despite consultations, ultimately refuses to accept the Minister's recommendation to register a structure.
Somebody suggested that there should be a provision to enable a Minister to order an authority to do so but, as a member of a local authority, I am reluctant to include such a provision. However, a mechanism to resolve disputes is required in the event of agreement not being forthcoming and this amendment provides for such a mechanism.
While I understand the reason for putting down this amendment, I have strong reservations about having a higher authority making the decision in a case such as this, particularly in the context of current discussions on strengthening local government.
In practice, it is probably unlikely that a local authority would not take account of a recommendation from a Minister in this regard. There is already too much central control and if a local authority did not take account of a Minister's recommendation, I would like to think that local authority members, who have a reserved function in this matter, would have the commitment and local knowledge, which a High Court judge probably would not have, to make the correct decision. I caution against infringing on an area in the competence of the local authority. Somebody must be the final arbiter and there is nothing to prevent the local authority having that function in this instance.
I agree with Senator Walsh. I am a member of a local authority and local authorities have greater strengths and abilities than they are often given credit for. The introduction of the High Court into this area creates further bureaucracy which will slow down the process. I doubt that it would be of great benefit in the long term. Given that guidelines are due to be published, disputes between local authorities and the Department are less likely to arise and they should be more easily resolved by reference to the guidelines than to the High Court.
I have a number of difficulties with the amendment, some of which have been expressed by the last two speakers.
The amendment is unnecessary. The number of times a local authority will go against the wishes of the Minister is few. The concept underlining this section is a spirit of co-operation that should, and I hope will, exist. Taking the route of High Court actions would detract from that co-operative spirit. Obviously, the involvement of the Department of Arts, Heritage, Gaeltacht and the Islands and the architectural expertise it can bring to bear will bring a degree of consistency to the criteria to be applied to the protection of buildings. Co-operation between the local authorities and the Department will be important and I do not expect a situation to arise which might end up in the High Court.
The provisions of the section ensure that a local authority would have to have good reasons for not complying with the recommendation of the Minister for Arts, Heritage, Gaeltacht and the Islands. Section 4(3) requires a local authority which says it will not comply with such a recommendation to give specific reasons for its decision.
I agree with Senators Coogan and Walsh that the guiding principle when dealing with local government is to put responsibility and decision making powers in the hands of local authority members and that they should accept that responsibility. In 99 per cent of cases, members will act responsibly when dealing with the recommendations. If this amendment was included in the Bill, some people would be willing to take the easier option and let the High Court decide the issue rather than having it decided locally. I support local authority members having powers and accepting responsibility for the architectural heritage in their own areas. I would be reluctant to send matters to the High Court.
A more general point in planning law is that there is such a huge amount of it being decided in the courts I would be inclined to discourage anything which added to that. I know what the Senator is trying to achieve but it is better that local authority members shoulder their responsi bilities. It is my experience that they will do that when they are given those responsibilities.
As a member of a local authority I am conscious of the points made by all speakers on this section. One of the submissions I received asked that a requirement be inserted enabling the Minister to order a local authority to do something. I certainly would not agree with that.
This is a worst case scenario which I hope will not arise. I expect that agreement will be reached. Local authorities appreciate any help they get from the Department of Arts, Heritage, Gaeltacht and the Islands to protect the heritage in their areas. I do not believe this requirement would arise very often. There should be a dispute resolution mechanism but I hope it will not be needed, I hope by way of the outcome of a particular case in years ahead, we will not end up in the High Court but, in deference to views expressed, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.
An Leas-Chathaoirleach
Amendments Nos. 12 and 19 are related to amendment No. 6 and they will be taken together. Is that agreed? Agreed.
I move amendment No. 6:
In page 6, paragraph (a)(i), line 13, to delete "necessary" and substitute "desirable".
The first amendment relaxes the test for inclusion in the record. Trying to come up with a legal definition of what is necessary will be difficult and I have no doubt that definition will be tested in the courts. For the purposes of allowing all of us concerned with this issue to proceed with the establishment of the record and the protection of our heritage, it would be better to relax the test for inclusion in the record and state specifically that inclusion is desirable as opposed to necessary.
Similarly, amendment No. 12 seeks to relax the test for the service of a restoration notice for the same reasons. I have no doubt a person on whom a notice is served will say it is not necessary and the local authority will have to go to court to prove what it is doing is necessary. Local authorities are reluctant to go to court because of the costs involved and the doubt over the outcome of a case. I have a fear that inclusion of the term "necessary" will hinder the local authorities in carrying out their duties under this legislation. It would be more practical to include the term "desirable" as the test for service of the restoration notice, for inclusion in the record, or for addressing the question of compulsory acquis ition, as dealt with in amendment No 19. I fear that if we stick to the term "necessary" we may find after a short period of the operation of this legislation that local authorities find it practically inoperable.
These amendments would replace the word "necessary" with "desirable" in three different sections and while they seem to be identical amendments, the circumstances for each one in the context in which they are put are very different. I am inclined, therefore, to accept the proposed amendment to section 11, but I cannot accept the other two amendments.
The first amendment is to section 5. It would permit a structure to be included in the record of protected structures if it was desirable to protect it, rather than if it was necessary, which is how the section is drafted. This goes back to a point I made earlier. The inclusion of a structure in the record of protected structures has certain important consequences under the provisions of this Bill, for example, with regard to the interior of the building. The Bill itself imposes extensive obligations and restrictions on the rights of owners of structures. For that reason the protection of a structure must be necessary, not just desirable before the limitations can be imposed. I am not prepared to accept the amendment to section 5. We are dealing with property rights and the balance which must be struck to protect other provisions, such as CPOs, is very delicate. The amendment to this section would upset that balance.
For the same reason I am not prepared to accept the amendment to section 22. The effect of that would be to allow a planning authority to acquire a structure where it is desirable to do so and not only where it is necessary to do so for the protection of the structure. To take an extreme case, a local authority could decide that it would be desirable to acquire a house of architectural merit which was not in danger of falling down, and it could put a CPO on it which would be struck down constitutionally. In those contexts I cannot accept those amendments.
Amendment No. 12 would revise section 11 (2)(b) to allow a planning authority to serve a restoration notice in respect of a building which is part of a place or group of structures of interest where the authority considers it desirable to restore that place or group of structures, rather than when it is absolutely necessary as currently drafted. The situation may arise where three houses on a street were to be restored or were in very good condition and a fourth was not. It could be deemed desirable to restore the fourth to complete the streetscape. I can accept that. The word "necessary" is much stronger than "desirable" and it means that a planning authority can serve a notice where it considers that certain works must be carried out. "Desirable" means that serv ing a notice would be something to be approved of and in the circumstances of this section it would be an appropriate concept. While I cannot accept two of these amendments, I will accept the amendment to section 11.
I thank the Minister for his consideration, and I am satisfied with his response.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 6, paragraph (b), line 24, after "section 6" to insert "or 38".
I am advised that this is a technical amendment to cover the transitional inclusion in the section.
Section 5 provides that a structure may only be included in or deleted from the record of protected structures during a general review of the development plan under Part III of the 1963 Act or by the procedure set out in section 6. This amendment would amend section 5 to provide that structures may also be included or deleted from the record of protected structures under the particular transitional provisions set down in section 38. Section 38 is a transitional provision that will expire after a number of months, and I believe that this amendment is unnecessary. However, there is nothing to lose by having it inserted, and I am prepared to accept it in the interests of clarity.
Amendment agreed to.
Section 5, as amended, agreed to.
Sections 6 to 9, inclusive, agreed to.
SECTION 10.
An Leas-Chathaoirleach
Amendment No. 9 is an alternative to amendment No. 8. Amendment No. 15 is related, and amendment No. 16 is an alternative to amendment No. 15. Amendments Nos. 8, 9, 15 and 16 are to be taken together by agreement.
I move amendment No. 8:
In page 10, between lines 27 and 28, to insert the following new subsection:
"(6)Where a person on whom a notice has been served under subsection (1) fails to comply with the notice, the planning authority may itself carry out the works concerned.".
This is a difficult area for enforcement. My experience of planning matters is that making rules and regulations, adopting development plans and making decisions is the easy part. The hard part is getting it enforced. The section as drafted provides that the planning authority can, in certain circumstances, serve a notice on the owner of a protected structure requiring him to carry out certain works and allows the local authority the option of providing assistance to that party in having the works done. The assistance may be financial or of a practical or technical nature. This is very desirable, but instances will arise where, despite the serving of the notice and the local authority offering all reasonable assistance in carrying out the required work, some people will still refuse to co-operate. Most people will be reasonable and will co-operate, especially if the local authority is assisting them. However, there will still be people who will dig in their heels and refuse to comply.
It would be desirable to have a further power conferred on the local authority in this instance so that, if a structure is endangered and the owner refuses to do what is necessary, the local authority can step in and do the necessary work. This is required under the Geneva Convention, and there are provisions where costs for such work could be recovered. Amendments Nos. 15 and 16 refer to situations where, despite the positive intervention of the local authority, the owner of the property may still fail to carry out his or her duty in protecting a structure, and the local authority must be able to step in to do the work.
We are referring here to buildings of great historical merit in towns. I could instance a number of structures in my area that have been lost as a result of local authorities' lack of powers in this area. No matter what the local authorities offered in respect of two of those structures, the owners would not have co-operated and, in those circumstances, there should be a final power to enable the local authorities to step in and do the work themselves.
Senator Gallagher has outlined the intention of this amendment well. The amendment uses the word "may", which means that the authority makes the decision whether it wants to act to carry out such works. The only addition I made was that, in the event of a local authority feeling it will have to comply with this provision and carry out such works, not every local authority has the skills or personnel to decide how to carry out work properly on a structure of historic significance. I wanted to make sure that the legislation provided that a local authority could call on people with the expertise to renovate, repair or maintain a building or other structure. That was the intention behind "may".
I strongly support these extremely important amendments. I speak with some vigour on this matter because, though I am being parochial, very often one speaks best from one's own experience. There is a listed building next door to me which has had its fireplace ripped out and its ceilings damaged. For the last 21 years the eccentric owners have been in total dereliction of their responsibilities for this house, which is not the only one they own in the street or the city. I have dragged them through the courts on half a dozen occasions and got judgments against them, but absolutely nothing has happened. Another part of this house collapsed yesterday, smashing the gutter of the neighbour on the other side. I have won cases against these people and cannot understand why they are not compelled to restore a historic building and why nothing appears to be done. I have wasted money as a private individual going after these people.
Another house across the street from me which is owned by a professional person is also semi-derelict. A film version of David Copperfield was being made there in recent weeks and the film crew had very little work to do to convert the house's exterior to that of a tenement, even though it is a list 1 building. The film crew told me they could use it because it was derelict. It is a list 1 building owned by a consultant, but what are we doing?
We must have teeth in this kind of legislation. If we do not have this sort of amendment, are we taking these notices seriously? Are we serious about preserving the integrity of these buildings or are we happy with paper judgments? I have won judgments time and again that have ordered the owners to comply with the law and preserve buildings against further damage, but they laugh at the courts. They display open contempt for the courts.
It is important that local authorities have this power, though "may" is pretty weak. I am grateful to Senator Gallagher and his colleagues for these amendments, but I would have made the wording stronger by using "shall", because if local authorities serve an order under this Bill which is flagrantly breached and do nothing about it, the whole system will be brought into disrepute. What sanctions are there in that case? If we are serious about the objective of retaining, refurbishing and restoring historic buildings, the local authority should be required to act where there is dereliction and to pursue people for the money. I strongly support the amendment; as I say, I would like it to be stronger but there may be technical reasons which make that impossible. I would like to think local authorities will aggressively address this problem.
Senator Coogan made an interesting observation about the expertise required. If a local authority is serious about this, it should ensure such professional expertise is available to it because, if it does not, that will also weaken the Bill. If a local authority is determined to preserve its architectural heritage it cannot do so "blind"– if someone in the sewerage department has no work on a particular day, he cannot be asked to restore buildings instead. Inappropriate and ama teurish work, however well intentioned, can do greater damage to a building than leaving it alone.
I said local authorities should adopt an aggressive attitude but perhaps "positive" is a better word. We have legislation, bye-laws, etc. which local authorities have not used in the past. I have written to the city authorities in Dublin on a number of occasions to ask them to use this legislation to compel people to live up to their responsibilities for historic buildings, but there is little a citizen can do because the decision whether to implement the legislation is for management or the city council. One can write letters till one is blue in the face but if the authorities do not decide to pursue landlords or property owners who are in dereliction of their duties or responsibilities, the measure withers away. I hope the Minister makes a positive response to these amendments because this is another reason to consider requiring local authorities to live up to the ideals expressed in this Bill.
In the late 1990s it is as fashionable to protect historic buildings, such as 18th century houses, as it was politically unfashionable to do so in the 1960s. The danger with fashions is that lip service is paid to them; legislation is passed, flowery speeches are made, policy documents are launched, but nothing happens. I am not accusing the Minister of this. I attended the launch of a significant policy document by him and his colleague the Minister, Deputy de Valera, and I do not deride it. They were right to think matters through beforehand and to launch their document in a serious and appropriate way, and they have now followed it up with legislation. However, even that is not enough – we must ensure the legislation is implemented and one useful way to do that is to include something along the lines of this amendment to encourage, coax and prod local authorities to go beyond the mere mouthing of words and to do something.
I am glad of the House's indulgence. Having lived next door to this problem for 21 years, wasted considerable sums in using the court process to virtually no effect, and paid heavily from my resources for the privilege, I want local authorities to get teeth and to sink them into the fleshy posteriors of our absconding landlords and landladies.
Not a vision for the weak of stomach.
I subscribe to the sentiments of this amendment but it is covered in section 20, which clearly provides for what Senator Gallagher is putting forward. I agree with Senator Norris that local authorities should give total commitment to their responsibilities in this regard. Equally, however, in the past they have not had the financial or staff resources to undertake many of the functions placed at their door. In this regard the Minister's initiative in the Local Government Act, 1998, to ensure any new responsibilities allocated to local government would have to be costed and funded, is significant.
This may be more relevant to sections 20 and 21, but perhaps the Minister could clarify the recovery of costs. If the local authority undertakes work where the owner has failed to do so, section 21 makes provision to recover the costs from the owner. Senator Norris said that many landowners and property owners have been in dereliction of their responsibilities in this regard, so this is an appropriate provision and I have no difficulty supporting it. However, some people who own property of considerable architectural importance do not have the wherewithal or the financial resources to maintain it. I would have reservations if the effect of the Bill was that some people lost properties which had been in their family for generations. I appreciate the difficulty in distinguishing between those who can afford to and should maintain their property, and those who do not have the financial capacity to do so. Perhaps the Minister could deal with this now or when we reach section 21, whichever he considers appropriate.
As Senator Walsh rightly pointed out, section 20 covers the points in these amendments. Their effect would be to permit a planning authority to do works where it has served an endangerment notice under section 10 or a restoration notice under section 11 and the notice is not complied with by the person on whom it is served. Since section 20 enables the planning authority to perform those works or to arrange for them to be done, the amendments are unnecessary and I ask Senator Gallagher to withdraw them.
Section 21 covers the recovery of costs so I will not go into great detail now. There are two methods by which the local authority may recover costs. In the past, legislation was too often passed in this House and the Lower House which imposed obligations on local authorities but did not make funding available. Local authorities, therefore, could not implement the provisions of the legislation and this brought the law and local government into disrepute.
The Bill and the provisions of the local government funding legislation we passed last year make it mandatory to allow for expenses that arise in respect of legislation which has been passed. The Bill allows for recovery of costs and I hope and believe that this will encourage local authorities to be more diligent in the enforcement of legislation. Local authorities can recover costs directly from owners – even through the courts system, if necessary – recover them as a charge on property or, on foot of acceptance of a later amendment in my name, they can vest ownership of properties in themselves and this can later be recovered on payment of the appropriate sum. We are meeting the concerns of Senators in that way.
Given that our attention can become narrowly focused on particular sections of the Bill, I must emphasise that the Bill is only one piece of the jigsaw we are putting in place to protect our architectural heritage. As Senator Norris rightly acknowledged, we published a policy document on this matter prior to the last election which we are now implementing section by section. In addition, the Bill and the other piece of the legislative jigsaw being dealt with by the Minister of State at the Department of Arts, Heritage, Gaeltacht and the Islands, Deputy Ó Cuív, to establish a national inventory of our architectural heritage, will also be implemented.
We recognise that, in many cases, financial assistance will be necessary for people who, unlike some of Senator Norris' neighbours, have a genuine interest in maintaining and conserving these buildings and this will be provided in the form of a grants scheme. In addition, as Senators Norris, Coogan and others stated, there is a necessity for expertise and we have informed local authorities that they must appoint conservation officers. We are not merely imposing that obligation, we are also providing approximately £300,000 to enable them to do so. The conservation officers will provide the necessary expertise to which Senators referred and their work will include the identification of buildings worthy of conservation, the administration of the grants scheme – which my Department will operate in conjunction with the Department of Arts, Heritage, Gaeltacht and the Islands – the provision of specific building guidance for people interested in conserving these buildings, ensuring the ongoing protection of those buildings and the provision of general advice.
That is a brief summary of the overall package of which the Bill and the section in question are part. In addition, it is intended to strengthen the enforcement provisions of the Local Government (Planning and Development) Acts when the major reform Bill is introduced in the middle of the year. When considered in an overall manner, this package will meet the requirements of Members and the community in general. In my opinion it is a good package and it has been welcomed. Local authorities will welcome the provisions in the Bill and the provision of funding to enable them to carry out their work. The amendments with which we are dealing are covered under section 20 and on that basis I ask the Senators to withdraw them.
It is likely that the amendments will be withdrawn. However, I would like to comment on one of the Minister's statements. I welcome his referring to positive developments, particularly the grants structure. That may not be directly relevant to the discussion of this section but the Minister introduced it and I would wish to comment on it.
It is very important that the grants structure be operated in a particular way. A number of years ago I had an amendment accepted to budget legislation with the agreement of the then Government. The amendment advocated this kind of system but it did so in a naive and stumbling way, with the result that it was never administered properly in the sense that it was not consumer friendly. For example, there were no forms available to make application for the grants in question, there was no information available from Departments or local authorities and I was sent from Billy to Jack when trying to obtain these grants for people who were interested in restoring their houses.
I welcome the legislation, which is excellent, and I acknowledge the other aspects of it to which he referred. However, we must learn from the difficulties we experienced in the past. If a grant system is put in place it must be consumer friendly and application forms should be easily understandable. In this way people's applications can be either accepted or rejected and they will know where they stand. If someone is considering carrying out work on a historic building they will have to obtain planning permission and send the architect's drawings out to tender. It would a great advantage if they knew in advance that they might be eligible for a grant. They could then, for example, carry out a slightly more extensive renovation, complete the work in different phases or tackle particular and specific problems in the knowledge that they will be likely or guaranteed to obtain some degree of financial assistance.
It would be helpful if the Minister and his advisers bore it in mind that if we are serious about these grant systems – I accept they must be monitored and that the funds involved are not inexhaustible – they should be structured in such a way to enable the prospective consumer of such grants to know how to apply for them, etc. This would make life easier and it would encourage people to take up the grants and carry out the work we would like to see taking place.
I thank the Minister for his assurance that section 20 addresses the concerns raised by Senator Coogan and me in putting down these amendments and I thank Senator Norris for his support. Accordingly, I withdraw amendment No. 8.
I agree with Senator Gallagher that section 20 covers our concerns. On a point of information, I tabled my amendment because I thought it more appropriate here than on the later section.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Section 10 agreed to.
SECTION 11.
I move amendment No. 10:
In page 10, subsection (1), line 29, after "structure" to insert "or curtilage".
I understand the word "structure" also includes curtilage in the interpretation section of the Bill. I tabled the amendment to tease out what would happen in the case of an individual living beside a national monument or a site listed for preservation where works had to be carried out. I am concerned that in such instances the financial burden for such works should not be borne by the person on whose land the monument is situated. If it is not a structure in which he is living – for example, an archaeological dig or a ring fort – I want the section to ensure that the individual will not be obliged to carry the burden of additional costs. He may have to move a road entrance to his house or a first time builder on a site may have to carry out certain works to ensure that the monument is preserved which will impose an additional burden. I am merely concerned with ensuring that such burden of costs would not be borne by the individual because, under the section, the local authority must carry the burden for any changes being made.
The amendment attempts to clarify the definition of "works" for the purpose of the section and stipulates that it should include works to the curtilage of a structure. The term "structure" is already defined in section 1 to include the "land lying within the curtilage of the structure" and "any other structures lying with the curtilage". From the Senator's point of view – his core point being in regard to payment – local authorities pay for the work. The point made about the curtilage and that of payment is covered in the section and, therefore, the amendment is not necessary.
My fear is that a local authority, in trying to avoid payment, might say only the word "structure" is used in the section. I want to know if it is possible to have the word "curtilage" included again. It may not be necessary, but I want to ensure a local authority does not try to opt out of payment.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment No. 11 and amendment No. 13 are related and may be taken together by agreement.
I move amendment No. 11:
In page 10, subsection 2(a), line 36, after "restored" to insert "or improved".
This amendment relates to section 11 which provides for the power to require restoration of character of protected structures and other places. I seek to widen the powers of the authority beyond merely requiring restoration of the structure to also cover its improvement. It may seem like splitting hairs, but I do not think it is. It may be necessary to have works carried out to a structure, which is protected under this legislation, to improve its external appearance and to ensure it fits in with neighbouring buildings or the streetscape within which it is located. Those works may not be technically defined as restoration; they may not be structure. They may not require, as defined here "the removal, alteration or replacement of any specified part of the structure". There may be power to tell the owner to tidy up the building, improve its appearance or do something which may relate to the surface rather than to the structure. It would be desirable to give the local authority powers to require improvement as well as restoration.
This is a well intentioned amendment, but I hope the Minister does not take it on board. What constitutes improvement? There are very different views on this. The people to whom I referred in my previous speech, the neighbours from Hell – thank God they do not live in the structure – have the most extraordinary ideas about what constitutes improvement.
Some people take the view that covering an 18th century building with those awful architectural warts, the type of plastic brick effect rubbish, constitutes improvement. How do we know improvement might not be construed in that way? I know exactly what Senator Gallagher means when he says there should be the possibility of securing buildings and improving them, but I am not sure whether there would be anything other than serious danger if this amendment were accepted.
I am glad the Minister referred to the creation of conservation officers in different areas, which is a very important development. We must take on board their serious, informed and professional view. As far as a building is concerned, the best improvements one can make is to have it restored. I would be concerned about this amendment; perhaps I am misinterpreting it, but it rings alarm bells.
I have been shown around architecturally significant buildings by well meaning people who, with immense pride, show how the buildings have been improved, whereas irreparable damage has been done to them. I am particularly concerned about this. I am sorry to be negative to my good friend and colleague, Senator Gallagher, but I have a concern about this amendment.
I share the concern of Senator Norris. We all accept the purpose of the amendment is desirable but, unfortunately, improve ment means different things to different people. Senator Norris and I had a conversation about PVC windows.
In some people's eyes they constitute an improvement, but not from an architectural heritage point of view. For that reason, while Senator Norris, other Members and I have a fair idea on improvements in the context of architectural heritage, I am afraid others do not. I ask Senator Gallagher to withdraw his amendment.
In putting down this amendment it certainly was not my intention to allow or facilitate any of the instances to which Senator Norris has alluded and, in deference to his expertise in this area, I withdraw this amendment and amendment No. 13.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment No. 12 has already been discussed with amendment No. 6. I understand the Minister has indicated he will accept the amendment.
I move amendment No. 12:
In page 10, subsection 2(b), line 41, to delete "necessary" and substitute "desirable".
Amendment agreed to.
Amendment No. 13 not moved.
An Leas-Chathaoirleach
Amendment No. 14 is in the name of Senator Gallagher, amendment No. 14a is an alternative. Both may be taken together by agreement.
I move amendment No. 14:
In page 11, subsection 3(e), line 21, after "that" where it firstly occurs to insert ", to the extent that the works affect development which was lawfully carried out,".
I was glad to receive the Minister's amendment this morning and would be interested to hear his views on it. In amendment No. 14, I seek to exclude the possibility of reimbursements for works, the development of which is unlawfully carried out. Any member of a local authority is aware of the problem which exists in preventing and certainly tackling unauthorised developments. I do not think it is anyone's intention to provide money from public funds for reimbursement for development works which are not carried out in a proper and lawful manner.
When I saw Senator Gallagher's amendment I agreed with its spirit, and still do. Putting down another amendment signifies my desire to do something in this area. I put down my amendment because I accept planning authorities should not have to pay for the removal of unauthorised works and that a person should not profit from an illegal act. The difficulty obviously arises when one tries to establish if certain works were authorised, for example, a neon sign that is on a building for a long time.
My amendment tries to accept the principle put forward. Planning authorities will pay for works on authorised developments. This applies to works on development that have been undertaken prior to five years from the service of the notice. That links into the five year limit that already applies for taking enforcement action. There is a provision regarding lack of action within the five years.
This may mean that local authorities will pay for the removal of some unauthorised structures where they are over five years old. However, on balance, I take the view that local authorities should pay for their sins for not enforcing the legislation. They must pay for the removal of anything illegal that is still in place after five years and I hope this will encourage them to pursue enforcement of the planning legislation within that five year period.
If we try to decide what is or is not unauthorised beyond the five year limit more time will elapse and court cases will ensue over argument as to what was or was not authorised. I accept the principle and include it in my amendment as far as I can. Those with unauthorised developments within the period specified will suffer in that they will not be paid while local authorities will suffer if they allow them to continue for more than five years.
The Minister is addressing a practical issue in identifying unauthorised developments. However, the practical effect of his amendment will be weaker than the amendment in my name. While I accept his explanation for proposing his amendment and while I also accept that local authorities should be penalised if they have not made use of the powers available to them within the five year period, the difficulties do not fall solely on their heads.
When a local authority fails to take action within the time allowed it alone does not suffer. For example, when granting planning permission a local authority may have attempted to meet the concerns of an objector, who could be a neighbour of the applicant, by stipulating a condition which has not been complied with, despite repeated telephone calls, letters and representations from public representatives to the authority to seek enforcement. In such instances, it is the concerned member of the public who suffers.
The wider community would also suffer if the local authorities were not to discharge their duties laid down in this legislation. It would be preferable to state the principle in legislation that we do not want any public money provided by way of reimbursement for any unauthorised development. If people have a quibble with that let them contest it.
I suggest we consider this matter on Report Stage. I would like to take further advice based on what the Minster said when moving his amendment. I am not prepared to accept his amendment as being necessarily the best way to address this issue.
While I understand Senator Gallagher's concerns, perhaps we are mixing up two issues here. The first is the integrity the planning process. In that regard I enforce his view that we should ensure that those who construct an unauthorised structure while ignoring the planning process should not benefit. However, that is a separate issue covered by legislation. It is for the local authorities to ensure it is enforced, monitored and policed.
If a structure of significant architectural importance, authorised or otherwise, is endangered that should not stand in the way of an initiative by the local authority to ensure it is preserved for the future. The pursuit of this line may run contrary to the objectives of the Bill.
While I accept Senator Gallagher's view that this is not satisfactory or as clearcut as I would like, his amendment would have been more unsatisfactory. My amendment is an attempt to get closer to the desired aim of both of us. The idea behind the restoration notice is that the owners and authorities will co-operate to undertake modifications to structures to restore them to their previous state. The owners would be encouraged to perform the works because they will be paid for it.
The Senator's amendment would restrict this. Furthermore, if we could prove the distinction between works that were legal and illegal, authorised and unauthorised, we might end up with the ridiculous situation where authorised works would be dismantled, because somebody was willing to pay for it, while the unauthorised works would be left standing because of an unwillingness to pay for their removal. My amendment was meant to overcome that difficulty. We decided on a clear break. If it is an unauthorised development and it comes within the five year period provision, nobody will be paid and the structure must be dismantled. If it is outside of that period the local authority should have acted beforehand and it will in consequence suffer a loss.
The case referred to by the Senator deals with the enforcement of conditions. There are remedies in law. The larger Bill, which will consolidate this legislation, will deal with enforcement and unauthorised development and retention. The Senator, perhaps rightly, believes that the original Bill was not as satisfactory as it should have been. While his amendment is an improvement on the original, it is not satisfactory. My amendment is a further improvement. While it is still not fully satisfactory it is as far as we can go.
We are all trying to improve the legislation. As the Minister's amendment was only presented to us this morning, I would like to consider further the points he has made. Would it be possible to withdraw both amendments and return to the subject on Report Stage?
To deal with the matter it would be necessary to have a Report Stage. If the House agrees to deal with the matter in that way, that is in order.
I asked the Leader yesterday before the Order of Business if it was intended to take Committee and Remaining Stages today. He assured me it was intended to take only Committee Stage today.
At the end of Committee Stage it will be for the House to order Report Stage.
Yesterday I raised my concerns with the Leader of the House that all Stages should not be finished today and he assured me that they would not be taken today.
We must decide what to do with the amendments and, if there is sufficient time between Committee and Report Stages, which may be hours or days, the matter can be dealt with in the way Senator Gallagher suggested, that is, if the House and the Minister are agreeable.
I would like to have the Bill finished today. I have no difficulty with a separate Report Stage if we take a break at the end of Committee Stage, if the House can facilitate that. I would prefer to have the Bill passed by the House today if possible.
I have no desire to be disruptive, but as Labour Whip, when we are trying to structure the business of the House I expect to be informed of the Government's intentions and desires. Yesterday morning before the Order of Business, I specifically inquired of the Leader whether it was intended that this Bill would finish today and he told me it was not. It is not a problem of the Minister's making.
We are not having a discussion on today's Order of Business. I allowed Senator Gallagher to make that point by way of clarification but we will not have a rehash of today's Order of Business. Senator Norris, did you wish to make a point?
Yes, but I am afraid I might be ruled out of order because I was going to say that there have been indications of goodwill on both sides regarding the Bill and a suggestion that the Bill is not quite what this House would wish to see. There may be a possibility of improving the amendment further. In the light of the commitment given to Senator Gallagher, it would be good legislative practice to allow for this to be taken on another day. I completely understand the Minister's desire to have the Bill passed and in operation as quickly as possible. We all agree with that. However it would take a very short time next week to deal with only this amendment on Report Stage. The Minister may have many commitments and we understand his difficulties. However if this is possible, it would be best legislative practice. We have isolated a crux and we think we may be able to improve it. To dispatch the Bill now only for ease and convenience rather than improving it further would be a pity. I ask that we treat this matter with a degree of flexibility.
I must now dispose of the amendments. Is amendment No. 14 being pressed?
If both amendments are withdrawn they can both be resubmitted on Report Stage whenever it is taken.
Can we have agreement to withdrawn both?
That agreement may be forthcoming.
Amendment, by leave, withdrawn.
Amendments Nos. 14a, 15 and 16 not moved.
Section 11, as amended, agreed to.
SECTION 12.
I move amendment No. 17:
In page 12, lines 28 and 29, to delete subsection (5).
Subsection (5) states "No appeal shall lie to the Circuit Court from a decision of the District Court under this section." I know the intention of that is to reduce bureaucracy and I agree with it. However I fear that if we exclude the normal appeal to the Circuit Court there may be a rise in the number of applications for judicial review to the High Court. Normally there is provision for appeals to the Circuit Court. From my observations of the courts as an amateur, it appears that at times issues are not given the opportunity to be explored to the depth and range they might be in the District Court. Sometimes it is necessary to have a full hearing of the case in the Circuit Court. There is no need in this instance to exclude an appeal to the Circuit Court.
As the Senator indicated, the amendment would delete the provision preventing an appeal to the Circuit Court from the District Court where the District Court hears an appeal concerning an endangerment notice under section 10 or a restoration notice under section 11. The Senator is probably aware of my earlier statement about the courts and the law. I do not propose to accept this amendment. A full appeal to the Circuit Court of the District Court decision would do nothing other than extend the process considerably. In many of these cases, it is necessary to reach decisions very quickly as they involve heritage which can disappear very fast as we all know. There have been examples of this.
The section does not rule out a reference on any issue or point of law to the High Court if that arises. I ask the Senator to withdraw the amendment.
I support the Minister because of the circumstances in which these notices can be issued. A classic case would be danger to a roof structure with substantial damp penetration. Buildings can deteriorate very rapidly. In the example of a roof structure with damp penetration, the underneath can be like the ceiling of this magnificent chamber. Damp penetration can cause irreparable damage over a period of weeks or months so it is not a good idea to prolong the procedures allowing a series of appeals. Unfortunately vexatious people exist who will continue to use an appeal process to the last degree in order to avoid the responsibility of looking after these buildings.
I am unhappy with the amendment and I support the Minister. In circumstances where such notices are issued, people should be compelled. In some cases speed is of the essence if the effect of the notice is not to be annulled.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Sections 13 to 20, inclusive, agreed to.
SECTION 21.
Government amendment No. 18:
In page 14, lines 17 and 18, to delete paragraph (b) and substitute the following new paragraph:
"(b)secure those expenses by
(i)charging the protected structure under the Registration of Title Act, 1964, or
(ii) an instrument vesting the ownership of the protected structure in the authority subject to a right of redemption by the owner.".
This amendment is to assist planning authorities to recover their expenses from the owners where they have to undertake works on a protected structure. Earlier I mentioned that people can recover their costs in two other ways. This is a third way. The section as previously drafted allows the expenses to be recovered either through the courts as a simple debt or by registering the debt against the folio of a registered property. No means were provided to charge the debt against unregistered property which includes the vast majority of property in urban areas in particular. The amendment will allow for this.
The planning authority will be able to register an instrument against the title of the owner vesting the ownership of the property. The owner must then redeem the property by payment of the debt before he or she can sell the property. Similar provisions are contained in the housing Acts. It is unlikely that this means of debt recovery would be used frequently. It would be easier for the authority to seek the repayment through the courts. However, I am determined to ensure the planning authority is not left with outstanding debts. Therefore, I want to make every means available to it to ensure the debt is paid. Accordingly, I commend the amendment to the House.
The Minister is right in tabling this amendment, and he may also be right in saying it may not be used very often. However, it is necessary. Earlier he underlined one of the reasons for this when he said it is not fair to expect local authorities to engage in exercises that may cause considerable expense and have no means of recovering it. As long as these matters are seen to be self-financing, local authorities will be encouraged to continue with them. However, no prudent manager would embark on a wholesale programme of restoring buildings in the interest of other people who may dispose of the property and leave the authorities to whistle for their money or to pursue them through lengthy and extended court actions. This is a necessary and practical scheme. I hope it will not be necessary to use it often. However, it is vital that it is in place because its existence may put the skids under defaulting landlords. I welcome its inclusion, and I spoke with some feeling on the subject on Second Stage. I am pleased the Minister has improved the Bill by tabling this amendment.
Like Senator Norris, I believe this amendment is a worthwhile third element in ensuring expenses can be secured. As far as I am aware, under the Housing Act, any charges incurred by the transfer of vesting and so on are added later. Is it the intention that additional charges to the local authority will be also secured in the transfer back of vesting?
I welcome the Minister's amendment which is necessary to give local authorities the necessary statutory powers for the Bill to function properly.
I also welcome the Minister's amendment.
I thank Senators for their support. The amendment is based on a similar provision in the Housing Act, 1992.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Amendment No. 19 not moved.
I move amendment No. 20:
In page 14, subsection 1(a), line 23, after "structure," to insert, "or in the public interest,".
I do not think the Minister will accept this amendment because of its wider implications. It relates to widening the test for compulsory acquisition. The amendment would mean a structure could be acquired by the State, even if it is not endangered, where it is in the public interest to do so. I note the powers for compulsory acquisition must be extremely limited because of constitutional provisions regarding private property. I do not wish to use this legislation to crack a bigger nut.
Will the Senator give an example of the public interest?
In my local authority area a street of Huguenot buildings had been acquired by a developer. We were informed unofficially that the developer intended to demolish all, or some, of the buildings. We received legal advice that the council would not have powers under compulsory purchase legislation to acquire the buildings before acquisition. This is a clear case where the public interest might allow compulsory purchase to be carried out. However, this is a complex area of legislation and, for that reason, I merely wish to raise the necessity to examine and up-date our compulsory purchase legislation. This is necessary in light of the many developments that have taken place in recent years. What I am saying to the Minister is that I would like a debate on compulsory purchase.
As the Senator pointed out, the area of compulsory purchase is very delicate and I would be loathe to widen it. The section provides for the compulsory purchase of property in the interest of protecting a structure for the protection of our architectural heritage. Implicit in this is the fact that the property is being acquired in the public interest. The effect of the amendment, if accepted, would be to enable a local authority to acquire a structure, where necessary, for its protection, as provided for in the Bill. I have no difficulty with that, but it could be acquired also where it is in the public interest. This is where the difficulty could arise. I would be reluctant to extend occasions when structures may be acquired by a planning authority merely because the authority is of the opinion that it is in the interest of the common good but might not necessarily be in the interest of the protection of the structure. As the two concepts are necessarily linked, I ask the Senator not to press the amendment. The public interest is implicit in the section.
There is already a degree of protection where buildings are listed. Perhaps Senator Gallagher is thinking in terms of failure on the part of local authorities to list buildings. I am concerned about the amendment, though I support Senator Gallagher's desire for a debate on compulsory purchase. The reason for my concern is that the Bill sometimes treads a delicate line constitutionally with regard to the rights of property owners as enshrined in the Constitution. This Bill is a major advance because it impinges on those rights where property owners are in dereliction of their responsibilities. What worries me is the possible subsequent use of this legislation by local authorities, because "public interest" could be defined fairly broadly. Again, I will be my usual egocentric, idiosyncratic person. I spent 21 years of amusement, joy, delight, penury and persecution, also persecuting my neighbours, while restoring my 18th century house. What would happen if the local authority decided it had the James Joyce Centre, the Writers Museum and wished to grab my house? It might be in the interest of tourism to have a whole street and declare this to be in the public interest. This goes too far in intruding on the rights of property owners. While I sympathise with the motivation of Senator Gallagher's amendment, I would be a little concerned about it. We should have a more extensive debate on the issue of compulsory purchase.
Amendment, by leave, withdrawn.
It is now 1 p.m. and I ask the Acting Leader to move the suspension of the House until 2 p.m.
Is it possible with the permission of the House to finish Committee Stage and then adjourn for lunch?
I understood that under the Order of Business we must finish this Bill today but in deference to Senator Gallagher we spoke about giving him an opportunity to seek consultation.
I am advised that the Order of Business was agreed this morning. It was agreed that the sitting would be suspended from 1 p.m. until 2 p.m. I am advised that we should not depart from that decision.
I accept that. My information was that we had the discretion to continue.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
I move amendment No. 21:
In page 14, to delete lines 26 to 28.
This amendment relates to powers to acquire protected structures. The Bill proposes to give power to the planning authority by way of agreement or compulsory purchase – with a number of conditions – to acquire any protected structure situated within its functional area. My amendment seeks to delete the blanket exclusion of religious and educational properties from the compulsory acquisition powers. There is nothing unconstitutional in this measure provided it is undertaken in a proper fashion and that, as the Bill provides, compensation is paid. I am more than a little anxious about the blanket exclusion of the acquisition of religious or educational properties under section 22(1)(c). While I agree there is long standing protection in law for buildings used for religious worship and educational instruction, there are many properties owned by religious organisations or educational institutions which are ancillary or quite different from their religious or educational functions. I am concerned about many older buildings throughout the country which may not be used for religious worship, some of which are derelict or semi-derelict. I have grave concerns about a blanket exclusion of these properties under the structures being introduced by this section. It is not advisable to include such a blanket exclusion and we should re-examine this section.
Senator Gallagher's amendment seeks to delete a restriction on the types of structure the planning authorities may acquire. As currently drafted, the planning authority may not acquire a structure which is the property of a religious denomination or educational institution. Despite what the Senator says, this protection is taken directly from the Constitution – Article 43.6 – and as such even if it were not included in the Bill the restriction would apply. I was advised, on drafting the Bill, to maintain this provision in the legislation and, for that reason, I do not propose to accept the amendment.
I understand what Senator Gallagher is saying about old churches which may be derelict or unused, but in many cases such buildings are sold and passed on to community groups. Obviously when such buildings are no longer the property of an educational institution or a religious denomination the terms of the Bill would apply. I cannot accept the Senator's amendment and ask him to withdraw it.
I am not disputing the Minister's advice, but practical difficulties have arisen over many years in respect of buildings which were once used for religious worship or educational instruction. In many cases there have been local disputes over their continued use, and sometimes even over their continued ownership. I have no fear about properties in the use or ownership of bodies such as diocesan trusts of a representative church body. However, a number of old church buildings were once free churches or belonged to denominations which have been subsumed into other churches. The trusteeship or responsibility for these buildings is often a matter of controversy. I would hate if a derelict church building or school which, despite its state of dereliction would have merit under this Bill, could not be restored or properly looked after by the local authority because of the blanket exclusion in this legislation. Notwithstanding the constitutional advice, it should be possible to devise a wording for this section which would allow these matters to be dealt with, while respecting the religious and educational freedoms referred to by the Minister.
I pay tribute to a number of religious orders and foundations who have preserved our heritage. Quite a number of large buildings such as mansions, town houses, demesnes and so on, would have collapsed long ago without the interest, love and care of religious orders. We are immensely in their debt for doing so.
One has to be careful in this matter. As a result of history, particularly the pillaging of monasteries in the 1540s, there are a large number of ecclesiastical ruins, some of which may be in the possession of churches. It would be unrealistic to suggest that these buildings are in a state of dereliction and must be instantly restored to their condition prior to the attention of Henry VIII. On the other hand, there is a new breed of ecclesiastical entrepreneur who is by no means backward in realising tangible assets. I regret the decline in vocations, but as this takes place there is a tend ency to sell off property or exploit it in whatever manner possible.
I have been involved with a school run by an order of nuns who were fine educators and preserved a series of buildings in the inner city. These buildings include the Loreto college in North Great George's Street and the Dominican college in Eccles Street which were sold. In the case of the Loreto college, there was an attempt to sell two Bossi fireplaces independently of the building. This is in total contradiction to sending pupils around to make notes and lists of all the artefacts associated with the 18th century.
We are immensely grateful to religious orders for preserving our heritage and acknowledge their difficulties concerning certain properties in their possession. However, we have to be watchful. There should not be a blanket exemption from the requirement to protect our architectural heritage simply because it is in the possession of religious orders. There may be some technical difficulty with this amendment, but I strongly support it.
It is not just a question of religious orders. We have to be careful about protecting these buildings. I draw the Minister's attention to a related matter. There has been an increasing number of thefts, particularly of fireplaces, from listed buildings. During the past month, two fireplaces were stolen from North Great George's Street. Two years ago a Bossi fireplace was advertised by a leading auctioneer for £250,000. That fireplace was at least as valuable as the house in which it stood. This is an interesting thought and protections are required. Significantly, important features such as this need to be photographed in case unscrupulous antique dealers attempt to dispose of them. While this is not directly relevant to the Bill, I bring it to the attention of the Minister and his advisers.
This amendment may not be necessary. When one considers the other provisions in the Bill, it is still open to a local authority to serve notice on owners, be they religious orders or anyone else. They are also empowered by the legislation to undertake the work and section 21 allows them to recover costs. The powers are not mitigated by this section. However, the use of the phrase "to acquire by agreement" is unusual and may need to be considered.
I concur with Senator Norris that religious orders have made a tremendous contribution to the growth and development of generations of Irish people. We should recognise they are in a privileged position. Because of the investments they have made over the years, the State should not be in a position to compulsorily acquire properties. We are dealing with structures of important heritage or architectural quality and we should not extend compulsory purchase orders to that area.
Section 23(b) is not subject to the amendment. If a dwelling has significant value and a local authority and the owners wish it to pass into the ownership of the authority in the national and public interest, they should be in a position to do so. We should consider whether we can deal with the "by agreement" scenario separate from the compulsory purchase issue.
It might be possible to allay Senator Norris's fears. A record can be kept of these institutions. In other words, while they cannot be fingerprinted, at least if they are listed we know what they contain. Once they are vested in someone else and sold on, they automatically come under the other provisions of the Bill.
We are dealing with the acquistion of properties. We have dealt with issues such as restoration, reconstruction and so on. Under previous sections, a local authority could carry out necessary restoration work.
This is a constitutional provision. It is explicitly stated in the Constitution that the State cannot compulsorily expropriate church property. On examining this, subsection (1)(c) is superfluous, particularly as it relates to compulsory purchase – that protection cannot be provided for in the Constitution. It probably would be better for the Bill and might facilitate at some stage in the future the acquiring of property by agreement if we delete subsection (1)(c), which is the effect of Senator Gallagher's amendment. I accept the amendment.
I welcome that. I would like to add a little to what I said about my dealings with religious orders as I would not want to be seen as too harsh. There was a change of regime and the nuns who sent out their pupils to make lists and inventories of fireplaces and ceilings and give descriptions in essays of the interiors of the houses were replaced at a critical juncture by an operative from "head office", so to speak, whose remit was to liquidate the joint. There were no aesthetic considerations whatsoever. I would not like it to be implied that I felt the original teaching nuns were as insensitive – they were not.
I am aware of rather sad situations, in a part of the world with which I know Senator Gallagher is familiar, where remarkable buildings are in a state of distress, which is echoed by the emotional distress caused to some of the remaining religious figures. They do not appear to have what the Israelis call the koach, the energy, power or strength to deal with it. Ballyfin in County Laois is a classic example, where there is a magnificent conservatory which was built by the same man who built the curvilinear range of glasshouses in the Botanic Gardens which were rescued by State intervention. There is a very early and good example of this at Ballyfin which is in a serious state of disrepair.
Some of the brothers have tried to shore up the building and a section of the library ceiling has come in on top of them. It is an appalling prospect for the small number of religious left in these enormous buildings to have the rain coming in and to have this wonderful range of glasshouses collapsing. I assume that religious orders would be eligible for grants, in addition to private individuals because, in these circumstances, it would be appropriate for a local authority to assist in the repointing, restoration and reglazing of the glasshouse and in the restoration of the ceiling.
There are genuine difficulties and the situation has changed dramatically in the past 20 or 30 years. Twenty or 30 years ago, these institutions of education and religious devotion were thriving. Now they are in a very different situation and we should be sensitive to their difficulties.
Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
SECTION 24.
I move amendment No. 22:
In page 15, subsection (1), line 24, to delete "an" and substitute "a valid".
I know the Minister will say this is a farcical amendment in terms of its implementation. However, I put it down because of the frustration arising from objections to planning applications which are made to An Bord Pleanála which must deal with them. They often have no foundation and are unrelated to the real objective of the planning application. I am afraid the same could happen here. Some guidelines as to what is or is not an objection could be included to prevent any fallacious or unfounded objections to compulsory purchase orders. This would mean we could get rid of those which are intended to delay the procedure.
I understand what the Senator is trying to get at. It is a frustration all of us share as regards planning procedures and those who lodge vexatious objections. Recently, a more sinister element entered the planning system. The most recent case I heard of was in the Senator's area in Galway. I accept the frustration to which this leads. The Senator knows I am sympathetic to what he is trying to achieve. However, I cannot accept his amendment.
The provisions in this section are directly based on the CPO provisions in the Derelict Sites Act, 1990. These have worked very well and I would be reluctant to interfere with them. The wording is good and we have had little difficulty dealing with them. While I sympathise with the Senator as regards vexatious objections to the CPO, the fact remains that it would be difficult for anyone to decide what is a vexatious claim or objection. Eventually, this would be reduced to subjective views. The problem with this is that we would end up in the courts more often with people arguing whether an objection was valid. While there may be frustration in the delays which might be caused by some vexatious appeals at the moment, we could add to that by having lawyers arguing at various court levels whether an objection is valid.
By way of comfort to the Senator and others outside the House, in the context of the larger planning Bill we are drafting, we are grappling with the problem of vexatious appeals. We are trying to narrow definitions and give some further guidelines in this area to the planning authorities. However, I have to admit this is not easy. I sympathise with the intent of the amendment. However, as this section is taken directly from the CPO provisions in the Derelict Sites Act, I am not prepared to accept it. Perhaps the Senator will withdraw the amendment on that basis.
I did not expect the Minister to accept my amendment but I wanted to put on record the vexation and frustration suffered by so many local authorities and planners in relation to these unfounded objections.
Amendment, by leave, withdrawn.
Section 24 agreed to.
Sections 25 to 29, inclusive, agreed to.
SECTION 30.
I move amendment No. 23:
In page 19, between lines 6 and 7, to insert the following new subsection:
"(5) Where a lawful development to a protected structure would for the first time require compliance with a requirement of building regulations or fire regulations, full compliance with which would endanger the character of the structure or any element of it, the planning or fire authority may apply those regulations with such reasonable modifications as take into account the protected status of the structure.".
It has been difficult to draft an amendment to address the problem experienced in this area. There are situations where people who own or are responsible for historic or special buildings may either wish to renovate them or may be required to do so. If they undertake such work, it is considered a development and becomes subject to the rigours of planning, building and fire regulations. The cost of that and the appropriateness of some of those regulations in the context of conserving the historic building can cause problems.
The amendment seeks a practical solution to those problems. Where a historic building is restored, such work might trigger the coming into force of fire and building regulations which would not apply if no development took place. That fosters a tendency not to renovate and to allow the building to fall into decay. The amendment proposes that, where a lawful development to protect a structure included under this legislation would bring that building, for the first time, under the remit of building and fire regulations and where the character of the building could be affected or endangered by carrying out such works, the local authority would have discretion to negotiate and consider alternatives and to decide how the regulations could be applied with reasonable modifications which would still address safety issues but not prevent work being done on the building or compromise its special character as a consequence of such works.
I do not suggest the amendment is a perfect solution. However, this is a practical problem and it should be addressed in the legislation.
I support this important amendment and I hope the Minister will accept it. There are a number of situations where the rigid enforcement of late 20th century practices for building safety and fire prevention could operate to the detriment of the building. It is impossible to make some buildings comply with modern requirements and trying to do so could damage them.
I have encountered this dilemma in my personal life. To pay for the restoration of my house I rented out apartments in the house. With the introduction of the regulations I reduced the number of apartments. I also wanted to take over as much of the rest of the house as I could. I retain one apartment in the basement because one is permitted to have one apartment in a building without being obliged to register or to comply with the regulations. It is perfectly safe. However, if I rented out another apartment, I would be obliged to install two hour fire separation on the top floors. That could not be done without enormous violence to some of the decorative elements and without huge expense. That would be wasteful and I could not afford it.
One can multiply this problem in the case of other historic houses whose very atmosphere and character come from their quirky passageways, nooks and crannies, priests' holes and so forth. One cannot simply seal up these features. It should be possible to have reasonable discussion and agreement with local authorities and to put up public notices in this regard. The public are not idiots. One can indicate where, for example, there is a lintel against which they could knock their heads.
One of the most charming concealed income generators in the tourism sector is programmes such as tours of historic Irish houses and the hidden Ireland. Many of these establishments have great difficulty getting Bord Fáilte approval or grants because if they were required to bring their buildings up to the appropriate standard of practice, which is applicable to a building being started now, they would destroy the character of their buildings. Nobody would want that to happen.
Of course, the public must be protected and there must be safety standards. However, this can be achieved with a degree of flexibility. Most European countries adopt this flexible approach in their conservation legislation. There is scarcely a house in the old city of Amsterdam, for example, that could meet the regulations in this country regarding access, fire and safety. It cannot be done. That is the nature of those buildings; it is impossible to bring them to late 20th century specifications without committing huge violations of the buildings.
The amendment suggests reasonable modifications. If they are permitted, local authority officials will be flexible and will negotiate with owners. We should seek the best available practice through negotiation between the parties. Nobody wishes to do violence to historic buildings, but if there is no flexibility and sensitivity, that is what could happen. I am already aware of difficulties which have arisen because people and institutions could not reasonably bring a building up to every modern specification.
This is another case of us trying to achieve the same objective but we are probably dealing with it in a different manner.
The amendment would enable a fire or building authority to apply relevant building or fire regulations in part only to a development to a protected structure. The appropriateness of fire and building regulations to protected structures is a problem we have been aware of for some time and it is being actively addressed by the Department. The new technical document on fire safety for the refurbishment of older buildings and their conversion to modern use refers to comparable rather than equivalent results from fire engineering alternatives to solutions outlined in the guidance documents. In other words, there is flexibility in the document if a person can achieve an equivalent result. It is important to get such a result because it involves the safety of lives. In that respect, the spirit of what Senator Gallagher is trying to achieve is being met in the new technical documents.
The building regulations of 1997 include new provisions regarding existing buildings. The building control system should not now inhibit conservation and adaptation of existing buildings. We are extremely conscious of this problem. These regulations also provide for the flexibility the Senator is trying to achieve. A more radical approach is required for protected buildings and other buildings of outstanding architectural and historic merit.
The Royal Institute of Architects of Ireland, the Heritage Council, An Taisce and the Department are co-operating in producing worked examples based on about 12 heritage buildings which have been successfully converted and conserved within the building control system. We have the guidelines for flexible building regulations but we are now giving practical examples of how buildings have been conserved without losing their character. It is hoped to adopt these examples as an additional technical guidance document by mid 1999. In effect, therefore, the spirit of the Senator's amendment already exists within the system. That is the best way to address this and for that reason I ask the Senator to withdraw the amendment.
There is one other difficulty. I fear that by inserting this into the legislation, despite all the good intentions we might have, a local authority which is not as committed to conservation could use this section to diminish the conservation of an old building. That is a long shot but it could happen.
I am happy with the Minister's response and I am delighted to hear about the developments in the areas he mentioned. I now see a difficulty with my own amendment. If a fire officer was required to put his name to a set of reasonable modifications and something then happened, there would be no guidelines to back him up. The course of action the Minister suggests is a good one and I hope he and his Department will keep us informed of progress.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 38, inclusive, agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."
It is a wise provision that there is a source of funding available to local authorities. Two fences must be overcome, however, before the money is released, the Minister for Finance and the Minister for the Environment and Local Government. While I have no doubt about the bona fides of the current incumbent in the Department of the Environment and Local Government, there have been times in the past when, because of financial constraints, the money has not been forthcoming.
While this is necessary, I am conscious of the pressures under which planning officers are currently operating, given the health of the economy. Many of the staff resources are already committed and most development plans are long overdue, primarily because of lack of those resources. Will the Minister give some reassurance that money will be forthcoming?
I am mindful of the situation where a local authority, in making a decision to undertake work necessary for the preservation of some of these structures but not in a position to recoup the money, may be influenced by financial considerations in the decisions and level of commitment it makes. While local authorities can pursue individuals in certain instances, some of these properties are owned by people who, no matter what recourse is taken, will not repay the money. These properties might be neglected as a consequence. The whole thrust of the Bill could be undermined if the resources to give effect to it are not put in place.
I support the remarks made by Senator Walsh. Unfortunately this type of phraseology is common in legislation. I am sure the Minister for the Environment and Local Government would be delighted if he did not have to get the consent of the Minister for Finance in this regard. If we change this section however, the Attorney General and the Government would not be too pleased.
I wish the Minister well in seeking the necessary money for these grants to be given to local authorities. The Minister knows, particularly from the experience of the urban conservation grants, that local authorities make good use of this money. The more that can be made available to local authorities the better.
It is a standard provision in all Bills that permission must be sought from the Minister for Finance. We have already secured the £300,000 which had been allocated for the conservation officers in local authorities in our Estimates for this year and we have also allocated £3.9 million for grants under this scheme. Under section 21, local authorities can recover money and can charge for work undertaken on a building. We have secured the finances of the local authorities as far as possible in this Bill.
Question put and agreed to.
NEW SECTION.
I move amendment No. 24:
In page 24, before section 40, to insert the following new section:
"40.–(1)Section 2 of the National Monuments Act, 1930 (as amended by section 11 of the National Monuments (Amendment) Act, 1987) is hereby amended in the definition of "monument" by the deletion of the words from ", but does not include" to the end of the definition.
(2)Section 2 of the National Monuments (Amendment) Act, 1987, is hereby amended in the definition of "historic monument" by the deletion of "before 1700 AD or such later date" and the substitution of "for at least 100 years or such shorter period".
(3)A local authority shall ensure that any national or historic monument for the purposes of the National Monuments Acts, 1930 to 1994, within its functional area is included in its record of protected structures.
(4)Powers of compulsory acquisition under this Act may not be exercised against land owned by the Minister for Arts, Heritage, Gaeltacht and the Islands.".
This section attempts to co-ordinate the Bill with the legislation dealing with monuments in respect of subsection (1). I have already discussed my views on the blanket exemption under the monuments legislation for religious properties. Section (2) of the National Monuments (Amendment) Act, 1987, needs to be amended to widen the definition of a historic monument to any structure which is over 100 years old, not 299 years old as is the case at present.
It would be desirable to ensure co-ordination between the two Acts – that is referred to in subsection (3). In subsection (4) I raise the question of the desirability of a local authority being in a position to exercise powers of compulsory purchase over national monuments which are owned by the Minister for Arts, Heritage, Gaeltacht and the Islands. There should be co-ordination between this Bill and the monuments legislation.
Subsection (2) of the amendment is very important. I wish to place before the House the strong feelings of many people involved in conservation that it was a dangerous error to describe national monuments as only those structures which had existed prior to 1700. There was more than a suspicion of xenophobia about this; there was a sense we were exclusively interested in our Gaelic or Norman past and that anything with a whiff of the Ascendancy about it should be promptly dispatched. That was perhaps understandable psychologically, but in the long term it was a terrible error and created a climate of hostility towards these buildings that was very regrettable. The amendment is significant on this point as it clears the matter up and lays it to rest. I have heard this matter raised constantly by An Taisce and the Irish Georgian Society; it was so blind to only see monuments as things that existed before 1600. That is not to underestimate in any sense the unique value and splendour of those monuments; in some ways they have an even greater claim because of their antiquity and rarity. However, this has been a blind spot.
There also appears to be a printing error in this section where it says "a least" when presumably it should say "at least". I doubt that matters very much. Subsection (3) I am happy to agree with, though I am more or less indifferent to subsection (4). However, if, for example, the Department of Arts, Heritage, Gaeltacht and the Islands was remiss in its custody of a national monument, I see no reason it should be exempt from the operation of the Bill. There may be circumstances within a Government – not necessarily even a coalition Government in which Ministers are from different parties – which lead to unedifying rivalries between members of the same party such as I have noticed in the past. There would be a particular piquancy in one Minister compulsorily acquiring property that had previously belonged to another Minister's Department as a result of dereliction of responsibilities. I see no reason, unless there is a legal one, for excluding anyone from the operation of this Bill. If Ministers live up to their responsibilities and if Departments were vigilant in their duties, the power of compulsory purchase would never need to be used. I am not sure there is any reason for excluding that theoretical possibility, and it could happen that that power would be necessary. It may not be possible to include in the Bill, but I have no objection to this power being exercised against another Minister. I imagine there would be particular pleasure in its use in some circumstances.
I concur with Senator Norris on the antipathy towards buildings. However understandable, it was obviously misdirected and it was a case of the population mixing up the people who occupied those buildings with the buildings themselves. There was great justification for much of the hostility directed towards the people who occupied those houses in many instances.
These proposals purport to make radical changes to the national monuments legislation which, as Members will be aware, comes under the remit of the Minister for Arts, Heritage, Gaeltacht and the Islands. Amending the national monuments legislation is not appropriate for a planning Bill. The Minister for Arts, Heritage, Gaeltacht and the Islands is in the process of drawing up the first national heritage plan. Part of the process is a review of all the national monuments legislation, and the proposed amendments for this Bill have been forwarded to her for consideration in that legislative review. I am sure they will be taken on board, and Senators will have a chance to express their views again when discussing a Bill on the national inventory of architectural heritage which is due to come to the Seanad shortly. It is not appropriate for this Bill, but this brief discussion was useful. This legislation addresses the point made by Senators Norris and Walsh on dates. No dates apply to this legislation. If something has architectural merit or has heritage value, this legislation applies to it. I am told that Liberty Hall and Busáras could be protected under this legislation if we wanted to do so.
Amendment, by leave, withdrawn.
SECTION 40.
Amendments Nos. 25 and 26 are related and are to be discussed together by agreement.
I move amendment No. 25:
In page 24, subsection (1)(a), line 7, to delete "six" and substitute "12".
This amendment relates to the section on penalties and prosecution of offences. The Bill refers to persons who are guilty of an offence under section 9(4): those persons who, without lawful authority, cause damage to a protected structure or proposed protected structure. Section 14 refers to endangerment of structures. We are dealing with serious offences and matters which have been problematic in the past, when people have disregarded their duties in this area totally to act with impunity. In this era of zero tolerance it is necessary to send the strongest possible message to these people. I do not doubt that the courts will seek to dispose of these matters by way of fines, but there may be serious breaches of the law, and such breaches deserve serious sentences. I am, therefore, proposing to increase the penalty for summary conviction from six months to 12 months and, in the event of conviction or indictment, increasing the penalty from two to five years.
I concur with Senator Gallagher. There is no doubt that if these offences are being committed, there is only one way to ensure that people will have respect for the law. They must know that the law will be enforced stringently, and for that reason I agree with these proposed changes. The Minister recognises the seriousness of someone taking a chance on demolishing a building, making a large profit and hoping to get away with a large fine that he or she will be able to pay from that profit. That must not happen, and the thrust of both the Minister and Senator Gallagher's proposals are aimed at preventing it.
I am very much in sympathy with getting at miscreants, but I would be more in favour of really swingeing fines. That is the way to do it; attack them in their wallets. Let us be realistic. These people will not go to jail. I secured a conviction against a developer who was sentenced to 18 months, but it was appealed on the basis that she was an elderly person and a little confused. She did not serve a single day, nor did I want her to. What is the point of putting elderly people in jail? The courts will be most reluctant to jail people for lengthy periods. Maybe they are wrong, but property developers are people of substance. They are by and large people with some smattering of education, and if they do not have that they will hire it. They will get good lawyers and protect themselves. As I said they are unlikely to go to jail, and the longer the prison term, the less likely they are to be required to serve it. That is a practical observation, not dealing with morality but, to speak in those terms, I do not approve of using jail. There are far too many people in prison in Ireland already. Jail should be an option of last resort, to keep out of circulation people who are a danger to their neighbours and the public and who may commit further unpleasant acts, and I would reserve it for that as far as possible. A fine would be a much greater punishment and I would not mind if it were increased.
On principle, too many people are in jail and they are being rotated in and out – it is total nonsense. Why are people put in jail? Is it just for revenge? Does it serve its purpose? Many unfortunate people who are put in jail for comparatively minor offences, such as burglary, come out as heroin addicts. That is a tragedy.
We should use jail as little as possible and try community service or huge fines. It would be much worse to bankrupt these people than to send them to jail. I have no sympathy for these developers. I am not a bleeding heart in this instance, but on moral grounds it is not justifiable to use jail places which should be used for particular crimes; in practical terms it will not have much of an impact. If these people are shrewd enough, they will weasel their way out and will not serve a jail term; and the longer the term is, the less likely it is that a judge will impose it. They should be hit in their bank balances.
I am sorry to be negative but I have reservations about this amendment, not that I have the slightest sympathy for its targets. I applaud the sentiments behind it – they should be stung and made pay. However, they will not be made pay by imposing unrealistic jail sentences but by removing the profit motive, which is the only reason they are interested in this. The other possibility is that they are elderly, bewildered, eccentric people, and what is the point in putting them in jail? Not even I would wish that.
The penalties outlined in the Bill are the equivalent of the maximum penalties under the Planning Acts for other types of offences and I think they are fairly substantial. At present, on conviction on indictment, a maximum fine of £1 million or two years' imprisonment or both may be imposed, and on summary conviction, a maximum fine of £1,500 or six months' imprisonment or both may be imposed. Penalties can also be incurred where an offence is continued following conviction – up to £10,000 where the conviction is on indictment or £150 where it is summary, for every day the offence continues. I accept the thrust of what Senators are saying, that the strongest possible signal should be sent, and on that basis I will accept the amendments to increase the maximum terms of imprisonment. When the new planning Bill is introduced I will increase the terms of imprisonment so that they match those in this Bill. The idea was to have the penalties the same in both Bills, so we will increase them here and amend the Planning Act accordingly.
I bet the Minister £100 that no developer will be imprisoned within the first five years of the operation of the Bill.
Like the Senator, I would be delighted if developers were fined £1 million.
That is the way to do it.
Amendment agreed to.
I move amendment No. 26:
In page 24, subsection (1)(a), line 13, to delete "two" and substitute "5".
Amendment agreed to.
I move amendment No. 27:
In page 24, subsection (3), line 23, after "prosecuted" to insert "summarily".
I put down this amendment to seek clarification. This provision authorises the planning authority to prosecute an offence under section 9(4) or section 14. Is it intended that the local authority would be authorised to take summary prosecutions under this subsection, and will it continue to be the case that jury trials are reserved for the DPP? Alternatively, is it intended that the local authority will be authorised to prosecute both summarily and by indictment?
This subsection provides that the offence may be prosecuted by a planning authority, but if it is prosecuted by way of indictment that must be done by the DPP. There is no way around it. The Deputy is looking for clarity and I have no problem accepting his amendment but it would automatically happen anyway.
Amendment agreed to.
Section 40, as amended, agreed to.
Section 41 agreed to.
SECTION 42.
I move amendment No. 28:
In page 24, to delete lines 29 to 32, and substitute the following:
"(2)This Act and the Local Government (Planning and Development) Acts, 1963 to 1998, may be cited together as the Local Government (Planning and Development) Acts, 1963 to 1999, and this Act and those Acts shall be construed together as one.".
This amends the references in the Bill based on the change of year to 1999.
Since that will happen automatically the amendment is superfluous.
Amendment, by leave, withdrawn.
Section 42 agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
That is not agreed, and my disagreement has nothing to do with the Minister or his officials, who have been very helpful and co-operative.
Nor is it with the staff of the House.
No. I sought clarification last week about how much of this Bill would be taken today and I was informed it was intended to take Committee Stage only. Accordingly I submitted a number of amendments and we have had a good discussion. I will need time to reflect on the discussion, including the Minister's responses, before deciding what amendments to table for Report Stage. In the notice circulated to the Whips last week, Committee Stage was listed for today and there was no discussion with the Whips about amending that. No later than yesterday morning, before the Order of Business, I sought clarification from the Leader whether it was intended to take only Committee Stage today or to finish the Bill, and I was assured that only Committee Stage would be taken.
We made a number of points on this issue during the last session and I thought it had been disposed of. On substantial legislation like this it is not desirable to take Committee and Report Stages together. We had to lay down markers on this in the last session and I regret that in the first week of this session the Government is attempting to complete this Bill in one day with out giving advance notice to the Whips or spokespersons of the various groups.
This issue involves wider considerations than those agreed on today's Order of Business. When the Order of Business is agreed, everyone should be aware of its contents. However, the Order of Business is being agreed and then other agreements are being made outside the Chamber. The House cannot be run in that manner. Senator Gallagher was given a commitment that he would have an opportunity to consider the legislation and obtain further information before Report Stage of this important Bill is taken. To deal with the legislation in one day without giving the Senator time to consider his options before Report Stage is not right. I support Senator Gallagher on this issue.
Acting Chairman
I have a proposal that Report Stage be taken now and I intend to put the question.
It is my understanding that it was agreed on the Order of Business – I was not present for it – that Committee and Remaining Stages would be taken today.
I must regretfully disagree with Senator Walsh on that. The Whips notice for the week and today's Order Paper both state that only Committee Stage will be taken today. It is a matter for the House to decide when the next Stage is taken. I had understood, from statements made by the Leader, that Report Stage would not be taken today. I protest very strongly and I am sorry to have to do so, given that we have had a good debate on the Bill. I see no reason that, in a short period next week, Report and Final Stages could not be disposed of when we have had time to reflect on today's useful debate and consider whether to draft and submit amendments. It would reduce the length of time the Bill might have to spend in the Lower House if the Government would facilitate us in that.
Acting Chairman
I was present for the Order of Business when it was decided that Committee and Remaining Stages would be taken today. I am informed that is the way business was ordered. Does Senator Norris wish to comment?
There should be no imputation against the professionalism and efficiency of the staff of the House who sometimes appear to get caught in the crossfire between the backbenches, Ministers and the Leader. It must be clearly understood that the Clerk, Clerk Assistant, etc., are not responsible for this. However, a dilemma exists.
Acting Chairman
The staff are not responsible. Those who are responsible are the Senators who agreed to this morning's Order of Business.
If the Senator is to occupy the Chair, he must be impartial.
Acting Chairman
He should not make any partisan points because the guilt is not on one side alone. Repeated undertakings and assurances were given and documents exist which indicate that there was to be a break between Committee and Report Stages. This is good parliamentary practice. We have had an acknowledgement from the Minister that there are areas which must be teased out. It is practically not possible to do our job of improving legislation if we rush in this fashion directly from discussing Committee Stage amendments to Report Stage, without the possibility of tabling informed and improved amendments. That is bad parliamentary practice and I strongly disapprove of it because it is wrong. Senator Gallagher is quite correct in his assertions.
I missed the opening minutes of the Order of Business because of traffic and I am not in a position to say what was said. However, if, as a Whip, one has been given repeated undertakings over a period of days and has those undertakings in writing, then the fact that a form of words is mumbled on the Order of Business may not register as piquantly as it ought to. I imagine that Members on this side of the House will be watching the Leader with increased attention in the future because of this apparent misunderstanding. That misunderstanding can be rectified by the House at this point if it so wishes. There is nothing to prevent the House deciding to take Report Stage early next week. We accept that the Minister and his officials are extremely busy and, for neatness sake, they would like to conclude deliberations on the Bill today. However, there is a possibility of improving the legislation and it is our responsibility to do so.
Acting Chairman
I have a proposal that Report Stage be taken now and I am putting the—
I was present for the Order of Business and I do not recollect inclusion of Report Stage on today's business. There was nothing circulated to the Whips or the leaders of the groups in the past week, despite repeated questions on this subject.
Acting Chairman
I will now put the question.
I have indicated that I wish to speak.
Acting Chairman
The Senator cannot do so as I am putting the question. The question is: "That Report Stage be taken now."
Question put.
Tá
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Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, John.Farrell, Willie.Finneran, Michael.Fitzpatrick, Dermot.Gibbons, Jim.Glynn, Camillus.Keogh, Helen.
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Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.
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Níl
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Coogan, Fintan.Costello, Joe.Gallagher, Pat.
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Norris, David.O'Dowd, Fergus.Ridge, Thérèse.
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Tellers: Tá, Senators Farrell and Keogh; Níl, Senators Gallagher and Costello.
Question declared carried.
