This amendment is consequential on amendment No. 254t which makes certain changes to section 82. It changes the definition of affordable housing to include both lands or houses to be made available under subsection (7) and the new subsection (8) of section 82. I will explain the contents of those subsections when we deal with them later.
Planning and Development Bill, 1999: Committee Stage (Resumed).
SECTION 79.
Government amendment No. 252a:
In page 85, subsection (1), line 12, after "82(7)" to insert "or (8)".
Amendment agreed to.
Amendments Nos. 252b, 252c, 252d and 252e are related and may be discussed together by agreement.
Government amendment No. 252b:
In page 85, subsection (1), line 13 to 16, to delete the definition of "eligible person" and substitute the following definition:
"‘eligible person' means, subject to subsection (3) and to the regulations, if any, made by the Minister under section 85(1)(b), a person who is in need of accommodation and whose income would not be adequate to meet the payments on a mortgage for the purchase of a house to meet his or her accommodation needs because the payments calculated over the course of a year would exceed 35 per cent. of that person's annual income net of income tax and pay related social insurance;".
These amendments relate to the change being proposed to the definition of eligible persons for the purposes of the affordable housing provisions in this part of the Bill. In the original text, an eligible person was defined as a person who could not obtain a sufficient mortgage to purchase a house on the basis of a loan of two and a half times the principal income plus once the subsidiary income, if any. However, on further consideration, this would create two wide a target group for eligibility and it fails to take into account the critical aspect of interest rates in determining affordability. Clearly, a house at any given price is more affordable to a greater number of people when interest rates are lower. Any index of affordability trends would take account of prices, interest rates and incomes.
For these reasons, the definition of eligible persons is being amended to persons whose mortgage repayments would exceed 35 per cent of income net of income tax and PRSI. In the case of a two income household, one half of the second net income would be taken into account for the purposes of determining eligibility. This criterion captures the three critical variables and reflects local authority practice in determining eligibility under existing leases and shared ownership schemes.
A household on a given level of income may need and be eligible for affordable housing in one area where prices are high while a similar household on the same income would not need or be eligible for affordable housing in another area where market prices were lower. For the purposes of applying the 35 per cent eligibility test, a mortgage is defined as a loan for 90 per cent of the price of a dwelling which meets the accommodation of the person or household concerned.
Amendment No. 252d deletes the definition of relevant income as this is no longer required in the context of the new 35 per cent criterion. Amendment No. 252e makes provision for the treatment of second or subsidiary income in applying this eligibility test. One half of the net income, after the deduction of income tax and PRSI, will be taken into account in the case of a second income. This approach recognises that the economics of a two income household are different from those of a household where one spouse or partner earns an income and the other does not.
The financial circumstances of a household, other than income, must also be taken into account in determining eligibility. Relevant cir cumstances would be where capital was available from the sale of another house, an inheritance or even, perhaps, a national lottery win.
I listened with interest to the Minister's comments in respect of eligible persons and what constitutes a sufficient level of eligibility. The difficulty with what he said is that while mortgage interest rates are low at present there is a threat that they will increase. There is also a problem in terms of people's ability to come up with the initial sum of money or deposit required, which is usually set at £1,000. Unless a cap is placed on what constitutes affordability, in many cases people will find it difficult to qualify for a house if they are obliged to rely on two and a half times their income.
By allowing half the subsidiary income instead of the entire amount, the Minister is casting his net in too constrained a fashion. I understand his concern that the provision might be too broad but there have been exorbitant increases in the price of houses. Unless we pitch the affordability of housing to a sufficiently low level, many people who need housing but who cannot afford a large mortgage will still face great difficulties.
In terms of local authority shared ownership schemes, to which the concept of socially affordable housing will mainly apply, I had thought that the threshold was two and a half times the income of the main earner plus the entire income of the second earner. It would be reasonable to retain this threshold, particularly when interest rates are low, which would offer people on low incomes a realistic opportunity to enter the market.
The Minister's amendments will tighten up the provisions in the section because they could not be left as they were. The stipulation that the repayments on a mortgage must not exceed 35 per cent of a person's income is reasonable, as long as there is sufficient flexibility for other incomes to be taken on board in terms of paying off a mortgage.
I ask the Chair's indulgence in respect of the debate on these amendments. I was prohibited from replying to them in writing when they were received because there was no time available to do so. In other words, they came in very late. If possible, a Second Stage debate would be more appropriate on these amendments. I wish to refer to what the Minister said. The Government and the Opposition are interested in ensuring that people go back to work. This is of interest at a time when unemployment is low and there is a need for people to go to work. However, this amendment prohibits people from going back to work.
The Minister explained the revised definition, which the Department has drawn up, saying:
The definition of eligible persons is being amended to persons whose mortgage repayments would exceed 35 per cent of net of income tax and PRSI. In the case of a two income household, one half of the second net income would be taken into account for the purposes of determining eligibility.
A single person with a gross income of £25,000 would be able to afford a mortgage of £87,000 and a married couple with one income of £30,000 could afford a mortgage of £120,000. However, if the couple had two incomes – one of £20,000 and the second of £10,000 – totalling £30,000, it only allows for a mortgage of £106,000. How did the Minister come up with those figures? We are trying to encourage people back to work. However, if the second earner in the household has an income of £10,000 they might as well not be working. There is no justification for this – it simply does not add up. If the total income of the household is £30,000, based on two incomes, the entitlement is £106,000, but if it based on one income it is £120,000. Perhaps the Minister would explain how he came to this conclusion.
It is necessary to define the category of applicant that will qualify for affordable housing and this amendment has much to recommend it. One can argue about the detail of the figures and where the cut-off point is, but there is a significant aspect to this. Many local and national politicians have sought for some time that when people are assessed for qualification for a range of social and other services, the assessment should use net rather than gross income. It is good that this provision refers to net income, income subject to the deduction of tax and PRSI.
The manner in which this amendment is constructed allows for the fluctuation of interest rates. It will be calculated according to the current interest rates. In addition, this is a scheme which will qualify and will probably be used extensively as part of the shared ownership scheme. The amendment also takes other income earners in the house into account. On that matter I ask the Minister to clarify whether the income of children of a couple who would qualify for affordable housing will be taken into account. That might create an anomaly because they may be there for a short period and may move out of the family home and seek accommodation in their own right. It could be a factor in disqualifying people who otherwise might qualify. It could also deter people from staying at home which, from a social point of view, might not be the right move.
There seems to be a certain scope in it. Amendment 252e refers to "shall" take into account rather than "may" take into account. The rest of the amendment indicates that the local authority may have discretion about which income earners will be included.
The Minister knows we share his objective to make affordable housing available to people. This seems a better scheme than the social housing scheme, which was instituted some years ago in several areas of the city but appears only to help those who are on corporation housing lists. I share Senator Costello's concern about interest rates but is the Minister wise to put in an upper income level for the primary earner? The Dublin Docklands Authority has a very imaginative scheme, of which the Minister is aware, and it operates an upper income level. Could it be indexed? We have seen the problems with inheritance tax which was not indexed. Would that be worthwhile?
I thank the Members for their support for this amendment and this part of the Bill. The scheme applies to people who qualify under the shared ownership scheme, which was mentioned by Senator Costello and Senator Walsh. On the point about interest variations and rises in interest rates, the new formula is more flexible than the old one and it takes this into account. One of the reasons we have changed this scheme is that it gives us flexibility if interest rates rise to revise arrangements so that people will not be caught. The provisions mean that instead of having to change the Bill to change these criteria we can change the regulations. In keeping with other parts of the Bill, we are trying to be as flexible as possible because the housing market changes so quickly and needs change quickly. Senator Costello's concerns are addressed by the new formula which will allow for variations.
On Senator's Coogan's point, the 35 per cent test does not discriminate against two-income households. There were some suggestions of that. At first glance it may appear to be harder on one-income families because a higher mortgage is affordable to them and they would, therefore, be excluded from affordable housing at a given price, whereas a two-income family on the same combined income would be eligible for affordable housing at the same price. It arises because only one half of the net income of the second earner is taken into account. There are good and equitable reasons for this.
The economics of a two-income household are completely different in many respects from those of a single-income family because two people going to work involves additional expenses, for instance, travelling to work, eating out and, critically nowadays, child care and child minding costs. These eat into the income of a two-income household. It is still a factor, perhaps less so nowadays than in the past, that the second of two incomes is less secure on average and more vulnerable to changes in circumstances, such as the arrival of children. The formula now proposed is as close as we can get to a general formula for equal treatment of different income circumstances and it does not discriminate against two-income households.
In terms of the loan amount affordable, a second income has never been treated on the same basis as the main income or the two incomes simply aggregated. By taking into account half of the second income, we are reflecting the reality of the situation and established practice by commercial agencies and public bodies. The formula used which was quoted by Senator Coogan concerns the levels at which people will qualify on the index of affordability rather than mortgages as appears from the note. In the case of a couple with two incomes of £20,000 and £10,000 respectively, the maximum affordable loan would be £106,000. However, this section outlines when a person qualifies for the waiting list for affordable housing rather than his or her eligibility for a loan.
Senator Walsh asked whether the incomes of sons and daughters would be included in the formula. The formula could include such incomes if the individuals involved might reasonably be expected to reside with the eligible person and contribute to the mortgage payment. While it is a fair question, it is better to deal with this issue through guidelines rather than legislation. It is also probably better to deal with the upper income limit in guidelines and allow flexibility. Given the nature of house prices, if it were written into the legislation, it would be too rigid.
Sociologically, there are dramatic changes in dual income households in so far as the second income earner is staying in the workforce much longer than was previously the case. This is necessitated by the increase in house prices and the recognition that they need a house. People wait longer to have children and family size is reducing. The second income is almost as solid as the primary income. This change should be taken into account in the calculations. However, most households must have dual incomes in order to qualify for any State or private mortgage.
The Minister has changed the formula for eligibility from two and a half times the primary income plus once the income of any subsidiary income to two and a half times the primary income plus half the annual income of the second person. Normally, the second income is provided by a spouse or partner. For that reason, would it be better if the Minister reverted to the original guidelines where the full second income was taken into consideration rather than half of it? People work on community employment schemes for three years. If they are aged 35 or over they could be expected under the jobs initiative to achieve permanent social employment. Will such people be considered for affordable housing?
These are points of detail that must be carefully considered in the context of the guidelines that will issue. It is important not to be too prescriptive. The market has changed a great deal over the past four or five years and continues to do so. Everybody recognises that but it is important that such detail is included in guidelines because a more flexible approach can then be adopted. The manner is which the second income is treated reflects the policy of all com mercial lending agencies currently and even local authorities treat it the same way. If the circumstances change the fact that the second income will be dealt with through guidelines rather than legislation will allow us to adapt the formula. The Senator is trying to ensure that we can adapt to changed circumstances and the new amendment reflects that. The section provides for the eligibility test for affordable housing and its calculation and not whether an individual will get a mortgage. I acknowledge Senator Coogan's comment that the second income is becoming a more permanent feature.
I welcome the Minister's flexibility in this matter. I am a member of the docklands authority, which was the first to debate social and affordable housing. I have seen the schedule which has been drawn up and am concerned that it is rigid. The Minister is quite right to allow flexibility in these measures.
Amendment agreed to.
Government amendment 252c:
In page 85, subsection (1), between lines 21 and 22, to insert the following definition:
"‘mortgage' means a loan for the purchase of a house secured by mortgage in an amount not exceeding 90 per cent of the price of the house.".
Amendment agreed to.
Government amendment 252d:
In page 85, subsection (1), lines 22 to 28, to delete the definition of "relevant income".
Amendment agreed to.
Government amendment 252e:
In page 85, between lines 32 and 33, to insert the following new subsection:
"(3)In determining the eligibility of a person for the purposes of this Part, the planning authority shall take into account –
(a)half the annual income, net of income tax and pay related social insurance, of any other person who might reasonably be expected to reside with the eligible person and contribute to the mortgage payments, and
(b)any other financial circumstances of the eligible person and any other person who might reasonably be expected to reside with the eligible person and contribute to the mortgage payments.".
Amendment agreed to.
Section 79, as amended, agreed to.
SECTION 80.
Amendment No. 253 is in the name of Senator O'Meara. We are dealing with the substitute amendment that was circulated on 23 November.
I move amendment No. 253:
In page 85, between lines 37 and 38, to insert the following subsection:
"(1)Where an application for permission in relation to a residential development involving more than 2 dwellings is made on or after the date of publication of the Bill for this Act, and has not been finally disposed of on the date of passing of this Act, it shall be lawful for the planning authority or the Board, as the case may be, if it decides to grant the application, to attach as a condition of the permission a requirement that the applicant or any other person with an interest in the land to which the application relates enter into an agreement with the planning authority concerning the development, for social or affordable housing, of land, which agreement may –
(a)provide for any of the following:
(i)the transfer to the planning authority of the ownership of up to 20 per cent of the land concerned, to be reserved for the provision of social or affordable housing,
(ii)the making of arrangements for the applicant to provide up to 20 per cent of the land concerned for social and affordable housing in a manner satisfactory to the planning authority, or
(iii)the payment by the applicant to the planning authority of an equivalent sum based on the value of the land with the permission less the amount of compensation which would be paid if the land were to be transferred, which sum shall be used for the purposes of a housing authority only or under this Act), and
(b)identify the land to be transferred in accordance with paragraph (a), whether in one or more parts.".
This is an important amendment and I would be delighted if the Minister considered it. It would change the timing of the Minister's proposal, not the principle of it. He outlines his housing strategy in this section in terms of how the 20 per cent social and affordable housing element will be implemented and the timescale that is required. The housing strategy must be prepared and then there must be a variation of the development plan.
I propose to bypass that to an extent and fast-track this desirable proposal through the system much more quickly than the Minister has proposed. The timescale envisaged by the Minister is outlined in this section and sections 12 and 13. It is difficult to envisage that a housing strategy would be in place in less than 12 months and a development plan would be varied in less than two years. The Minister can intervene at that stage and impose the adoption of the development plan. However, it will be delayed because it is in many people's interest that that happens. It will take three years to introduce variation into most development plans and thus provide 20 per cent social and affordable housing. Most local authorities have already had their development plans adopted – Dublin Corporation's was adopted earlier this year.
Within one year.
The Minister has new proposals in regard to the development plan. It must begin within four years and finish within six. He therefore envisages two years for it to be processed. The final stages might be dealt with within one year but a great deal of work will have taken place prior to that. The key is whether a mechanism can be provided whereby this eminently desirable principle can be adopted in a meaningful fashion and it will not be constrained by objectors or the planning process. At the same time I can appreciate that everything must be done in accordance with constitutional requirements. If we could, as we propose in the amendment, condition each new planning application before a new development plan is adopted, that would be the norm for the future but before that kicks into place we would have this window of two, three or more years whereby our hands would be tied behind our backs in relation to implementing this legislation. The benefit of the social and affordable housing is required now. We have the crisis and no measure that has been proposed, including the Bacon report and we have discussed it ad nauseam in this House and in the local authorities, has been effective. This is the only effective measure that will solve the problem in the long term but it will not solve it in the short term unless an amendment of this nature is accepted. I earnestly urge the Minister to take the amendment on board considering that the principle is excellent but its implementation may be delayed to such an extent that the benefits are not realised.
I fully support the motivation behind Senator Costello's amendment but I wonder whether, in practice, it would achieve what we all desire, that is, the early implementation of these provisions in law and their application by local government. We cannot lose sight of the fact that local authorities will have a certain time lag in which to develop their own housing strategies properly and comprehensively to ensure the success of this section. The whole application of this section, which probably impacts most on the development of planning laws, goes to the heart of the whole ethos of what republicanism is all about and it is good to see the support for that in the House. The early implementation of the Bill and its co-operative passage through the Seanad is what is called for. That is the route we should follow.
I will be interested to hear the Minister's reply. The purpose of the amendment, as I understand it, is to expedite the principle of social and affordable housing. If that can be achieved ahead of the Bill I would support it.
I acknowledge the support I have received from Members for the principle involved in this section. It is something that has been spoken about by people from all parties and the Labour Party in particular has been trying to expedite that. If I could do what is proposed in this amendment I would have done it 18 months ago but unfortunately it cannot be done. I appreciate the support from all sides for the principles underlined in the amendment. Rarely has something so controversial had such all party support. It behoves me to acknowledge that and to thank people for it.
My reasons for not accepting this amendment or, indeed, the proposal to take Part V out of the Bill and treat it separately, are strongly based on the legal and constitutional advice I have received. Depending on which side of the fence one is on, if one is a builder this is draconian, involving confiscation and so on but on my side and that of most Members of the Oireachtas, it is a measured social action to deal with a particular problem that affects a number of citizens. From all the legal and constitutional advice available to me, a housing strategy must be in place before the conditions for social and affordable housing can be realistically attached to planning permissions. You cannot, if you wish to remain within the parameters of the Constitution, apply these provisions in an arbitrary manner. They must be based on a reasonable endeavour to quantify and define the housing needs in a particular area for a start. That must be established. That is the aim of the housing strategy. Therefore, a local authority has to have a credible housing strategy before embarking on this and it has to be worked out by reference to perspective and existing housing circumstances in its area before the quota of social or affordable housing, to be applied in its area, can be determined. While everybody speaks of the 20 per cent social or affordable housing, that is an upper limit as is clear from the Bill. A local authority has to have a credible housing strategy and has to decide what percentage is fair and reasonable to meet the housing needs and circumstances in its area and also to ensure it has sufficient land zoned to cater for that demand.
The Bill requires all future developments and plans to incorporate a housing strategy. In the case of an existing strategy, the procedures to vary the plan must be started within a year of the commencement of the Act. It would not be realistic to require a shorter period of local authorities since the preparation of a housing strategy is very demanding and they must have a reasonable time to do a proper job. I am aware, and Members will be aware also, that local authorities have already commenced preliminary work on housing strategies in anticipation of the Bill being passed. Where there are difficulties I would anticipate and request Members to use their influence to ensure that all the preliminary work for the housing strategy is done during the passage of the Bill and finalised shortly after the commencement of the Act. A great deal of work can be done to put this in place much quicker.
A further measure to ensure the provisions on social and affordable housing have effect as soon as possible is the amendment to section 83 which will put a time limit on permissions for housing development granted before the housing strategy is made and the relevant quota applied. Obviously this will be discussed later but it is an important provision which improves the Bill.
The amendment to speed up the implementation of the housing strategies and the new time limit on existing planning permissions go as far as we can legally and constitutionally in giving effect to the provisions as rapidly and as urgently as possible. As Senator Walsh said, the best way to ensure the housing strategies and the Bill are in place is to expedite its passage through the Houses. In that regard I thank Members for the co-operation so far.
Is the amendment being pressed?
No. The Minister has said he is sympathetic towards the amendment but that he does not think, on legal and constitutional grounds, it can be accepted. The Minister said he might request local authorities to get started on their strategies but the Bill seems to indicate that the strategy would commence one year from the passage of the Bill rather than publication of the Bill. It could take another six months before the Bill gets through the Dáil. Is there some way the Minister could be empowered to amend this section so that the one year provision could operate before the passage of the legislation in the expectation that the Bill would be enacted containing this 20 per cent provision? If there is a delay in enacting the legislation there may be no benefit from it. Applications for development will be introduced on all existing zoned land. Our present development plan finishes this year and I have no doubt that before our new development plan is in place every piece of land will be included under the old dispensation. This legislation will not be able to deal with that. There is a danger that the best of intentions may be curtailed because of difficulties with proceeding.
Legal and constitutional difficulties present a problem, but any development plan implemented to date would have had to consider the social agenda and appropriate housing strategies. They may not have been as perfect as the very specific provision included in this legislation, which calls for a housing strategy and a variation in development plans. However, that is the new dispensation. Is it not possible that, pending the establishment of the new structures, existing planning applications would be treated under the 20 per cent affordable and social housing provision as local authorities review their needs? I am concerned to explore a way around this problem without leaving it open to developers to run a coach and four through it and have the provision effectively nullified by the time this provision becomes operative.
Following acceptance of the amendment the Bill will require that within one year of the commencement of the Act and irrespective of what development plans are in place, housing strategies must be agreed by local authorities and inserted into their current development plans. If local authorities are in the middle of compiling their development plans when the Bill is passed they can then insert their housing strategy into them.
Shortly after the Bill was published I met with all local authority managers over a period of two to three weeks. I pointed out these provisions to them and asked them to start drawing up their housing strategies, especially those authorities with acute housing needs who need to use the provisions of the Bill. There is nothing to stop a local authority drawing up a housing strategy and engaging in all the preliminary work on demographics, housing needs, land availability, zoned land and so on. When this legislation is enacted, which it will be as soon as the Bill is passed by both Houses and signed by the President, the authorities can put the legislation before their elected members and proceed with varying their plans.
Local authorities could have this strategy in place within a couple of months of the enactment of the legislation and I hope they will proceed on this basis because housing and affordable housing is the greatest social issue we face. I am confident local authorities are aware of this and that they will give it the necessary priority.
With regard to the Senator's question on validating existing provisions, our advice is that the Bill must be in place before procedures to alter a local authority development plan or its housing strategy. These cannot be retrospectively validated, although it would be nice if we could do that. Having asked managers to look at drafting housing strategies, we have already started to look at guidelines and we will not wait for the Bill to be passed before submitting them to local authority managers. Even before the guidelines are in place we will assist in every way we can to give a general idea of the thinking and how it might be approached. I agree with the Senator on the importance of that.
These amendments present the best possible legal and constitutional way we can proceed. I appreciate the Senator's interest and commitment to this section. If we can find any way to expedite matters, legally and otherwise, we will do so. It is important that those Senators who are members of local authorities also ask these questions of them.
Amendment put and declared lost.
There should be an amendment to the printed list. Amendment No. 253a should have an asterisk before it to indicate it is a Government amendment. Amendment No. 256d is related and amendment Nos. 253a and 256d will be taken together by agreement.
Government amendment No. 253a:
In page 86, subsection (1), lines 1 to 14, to delete paragraphs (b) and (c) and substitute the following new paragraphs:
"(b) (i) Subject to subparagraph (ii), any development plan made by a planning authority after the commencement of this section shall include a housing strategy in respect of the area of the development plan.
(ii) Where before the commencement of this section a planning authority has given notice under section 21A(2) (inserted by the Act of 1976) of the Act of 1963 of a proposed amendment of a draft development plan, it may proceed in accordance with section 241, without complying with subparagraph (i), but where a development plan is so made the planning authority shall take such actions as are necessary to ensure that, as soon as possible and in any event within a period of one year from the commencement of this section a housing strategy is prepared in respect of the area of the development plan and the procedures under section 13 are commenced to vary the development plan in order to insert the strategy in the plan and to make such other changes as are necessary arising from the insertion of the strategy in the plan pursuant to this Part.
(c) A planning authority shall take such actions as are necessary to ensure that, as soon as possible and in any event within a period of one year from the commencement of this section, a housing strategy is prepared in respect of the area of the development plan and the procedures under section 13 are commenced to vary the development plan in order to insert the strategy in the plan and to make such other changes as are necessary arising from the insertion of the strategy in the plan pursuant to this Part.
(d) A housing strategy shall relate to the period of the development plan or, in the case of a strategy prepared under paragraph (c), to the remaining period of the existing development plan.
(e) A housing strategy under this section may, or pursuant to the direction of the Minister shall, be prepared jointly by 2 or more planning authorities in respect of the combined area of their development plans and such a joint strategy shall be included in any development plan that relates to the whole or any part of the area covered by the strategy and the provisions of this Part shall apply accordingly.".
This is relevant to what we discussed earlier. There are a number of changes to subsection (1) designed to ensure that in general any development plan being made after the coming into force of Part V would include a housing strategy. However, where a local authority has already advanced its plan and review to the point where it has published final amendments, it will not be required to make its housing strategy before finalising the development plan.
Second, all authorities must have their housing strategies prepared within one year, at most, and the procedure for consequential variation of the development plan commenced. Where a local authority may have recently adopted a development plan, it will have to set about compiling its housing strategy immediately Part V comes into force and revise the plan within a year. We are trying to ensure that housing strategies are put in place as quickly as possible following the passing of the Bill.
A new provision is also provided in paragraph (e) to provide for the making of joint housing strategies between two or more authorities. For example, it might make sense for a county council and an urban council to come together to make a joint housing strategy which could then be reflected as appropriate in the individual development plans. It is also possible that the Dublin authorities could prepare a joint housing strategy given that they are currently working together in that context. As this paragraph now deals with the making of joint strategies, amendment No. 256d is a consequential amendment.
This covers essentially the same ground we debated earlier. I am pleased to note the Minister's request to the local authorities. I have no doubt we will be doing the same thing. However, the development plan still has to be varied and one must go through the normal procedures of consultation, publication and so on. Will the Minister give me an idea of the timescale? Can it be fast-tracked in respect of the development plan? Dublin Corporation has adopted its development plan so we are not working on it at present. Therefore, we cannot simply insert the housing strategy but must go through the normal procedure of dealing with a development plan which can be cumbersome and time consuming. Can the Minister give us any succour on that point?
It is my understanding that a variation can be adopted in a three month period and that would speed up the process. I do not think we can limit it beyond that. As far as I can recall, the statutory period in the last development plan had a variation of three months.
That was the situation. When this Bill is passed there will be a variation period of four weeks which considerably speeds it up.
Amendment agreed to.
Acting Chairman
Amendment No. 253b is a Government amendment, as is amendment No. 253c which is consequential and amendment No. 253d. All are related and may be discussed together.
Government amendment No. 253b:
In page 86, subsection (3)(a), line 20, to delete "needs" and substitute "existing needs and the likely future needs".
The purpose of this amendment is to clarify that a planning authority in estimating the housing needs of its area should also have regard to its likely future needs. The needs study carried out under the Housing Acts will give the authorities the information on existing needs. Future needs can be extrapolated from these figures and also from population forecasts carried out, for example, in drafting the development plan or, indeed, the regional planning guidelines, particularly in the Dublin area. The other two amendments to this subsection are purely technical in replacing "are" with "is" and the words "or handicaps" are deleted following "and persons suffering disability" as they are superfluous.
I am glad the Minister has been specific here. One could have looked on the Bill as providing cheaper housing for families who do not have an adequate income to continue living in an area. I am glad he has inserted these provisions as they are extraordinarily important. The elderly, people with handicaps and so forth can be extraordinarily isolated in social strategies and sometimes get depressed because when we look at economic policy we do not consider frequently enough the social consequences. I compliment the Minister for including such provisions.
I am glad the Minister is not only looking at present needs but also at future needs. Recent reports show that the greater Dublin area has a population of approximately 1.3 million and could rise to two million in the next ten years. Therefore, it is very important that future needs are considered in drawing up this procedure.
Amendment agreed to.
Government amendment No. 253c:
In page 86, subsection (3)(c), line 25, to delete "are" and substitute "is".
Amendment agreed to.
Government amendment No. 253d:
In page 86, subsection (3)(c), line 29, to delete "or handicaps".
Amendment agreed to.
Amendment No. 254 not moved.
Government amendment No. 254a:
In page 86, subsection (4)(a)(i), line 34, to delete "to be required".
This is a technical amendment. The words "to be required" are superfluous as they are repeated further on in the subsection.
Amendment agreed to.
Acting Chairman
Amendments Nos. 254b, 254c, 254e and 254f are Government amendments, they are related and may be discussed together.
Government amendment No. 254b:
In page 86, subsection (4)(a)(ii), line 38, after "plan" to insert "and the estimate may state the different requirements for different areas within the area of the development plan".
This amendment arose from consultations and adds an additional clause to the paragraph to clarify that the assessment of social and affordable housing needs can be area specific and can differ from one area to another within the territory of the local authority. As this is relevant to the quota to be reserved for social and affordable housing, it is important to be clear as to the intent. Paragraph (b) is inserted by amendment 254c to permit a local authority when making an estimate of the need for affordable housing to confine it to the expected demand from first time purchasers even though the definition of eligible persons can go beyond first time purchasers. However, the vast majority of those qualifying for affordable housing will be first time purchasers. I want to make it clear that persons needing accommodation as a result, say, of divorce would not be excluded.
In subsection (5)(a) a new paragraph is added by amendment No. 254e to provide that the rates of interest of a mortgage for house purchasers should be an issue to which planning authorities should have regard in making an estimate of the amount of affordable housing needed in the area. There is a consequential amendment to paragraph (5) to include rates of interest.
Amendment agreed to.
Government amendment No. 254c:
In page 86, subsection (4), between lines 38 and 39, to insert the following new paragraph:
"(b)for the purpose of making an estimate under paragraph (a)(ii), a planning authority may exclude eligible persons who own or have previously owned a house.".
The Minister referred to the point that the planning authority may exclude eligible persons who own or previously owned a house. This is specifically in the context of separation. A person may have lived in a house that was previously in joint ownership. While he may find himself in different circumstances he would not be a first time buyer and would be in a difficult situation and may well be in need of affordable housing. Is the amendment specifically broad enough in that it states "may exclude eligible persons"? What guidelines is the Minister prepared to draw up to ensure that some people who are in need of affordable housing will not be discriminated against? These people will qualify for local authority housing lists, will be in need of and, in many cases, will expect to qualify for, social as well as affordable housing.
The point I was going to raise was raised by Senator Costello. Are there guidelines on the possibility of exclusion or is it totally at the discretion of the planning officer? Senator Costello made the point where separated people may be in need of a house for either themselves and/or their children, even though previously they may have been householders. As this means they may be disbarred, will it be discretionary disbarment and, if so, on what basis? What guidelines does the Minister intend to draw up in this regard?
Most of what we have talked about on the development plan related to discretion to local councils. It is the councillors rather than the officers who will have the say in what is in the strategy plans. The plans should be specific.
I agree with Senator Walsh. There would be a weakness if too much discretion is given to the county planner and the personalities of people might also be taken into account. I would not like to see that happening. Because of past experiences in dealing with the problem, I have a fear in this regard and I would like to hear the Minister's views.
The important word in many respects is "may", not "shall". Confining the estimate for affordable housing needs to just first time purchasers is purely a practical matter to avoid any challenges with regard to other groups being excluded. It does not affect eligibility. With regard to persons needing accommodation, I gave the example of persons who had been divorced, they will not be excluded. In this case the discretion will rest with the members rather than individuals in the planning department because the housing strategy will be a document which will be approved by the local authority members.
I understand from the members that it might be interpreted differently by different planning or housing officers. Would the Minister be prepared to issue guidelines on this section?
That will be a matter which will be included in guidelines for drawing up the housing strategy.
Do we need this amendment? If we are talking about eligible persons, do we need to insert this into the Bill? I do not know whether we should provide for allowing the discretion to exclude eligible persons in primary legislation. Given that they are eligible, perhaps it might be better that the guidelines reflect how they will be dealt with on a national basis having regard to the priorities.
That is certainly a point at which I will look. The advice I have received to date is that the amendment is necessary. I will have a look at it again to double check on the basis of what the Senator raised there. At present I am satisfied that it is necessary to include it in the Bill.
I would also be grateful if the Minister would look at it again because in the definition of an eligible person there is nothing about the previous ownership of houses.
Amendment agreed to.
Government amendment No. 254d:
In page 86, subsection (4), lines 39 to 44, to delete paragraph (b) and substitute the following new paragraph:
"(c)A housing strategy shall provide that as a general policy a specified percentage, not being more than 20 per cent, of the land zoned for residential use, or for a mixture of residential and other uses, shall be reserved under this Part for the provision of housing for the purposes of either or both subparagraphs (i) and (ii) of paragraph (a).".
The purpose of this amendment is to use common English – to use the word zoning instead of objectives for using land. It is to simplify the language.
Amendment agreed to.
Government amendment No. 254e:
In page 87, between lines 6 and 7, to insert the following new subparagraph:
"(iv)the rates of interest on mortgages for house purchase;".
Amendment agreed to.
Government amendment No. 254f:
In page 87, subsection (5), lines 8 and 9, to delete "and incomes under subparagraph (iii)" and substitute ", incomes under subparagraph (iii) and rates of interest under subparagraph (iv)".
Amendment agreed to.
Government amendment No. 254g:
In page 87, subsection (5)(b), line 15, to delete "prejudice" and substitute "affect".
This is a technical amendment to change the word "affect" to "prejudice" in paragraph (b). We believe it is a more appropriate word. It has no substantive effect. It is just technical.
Amendment agreed to.
Section 80, as amended, agreed to.
SECTION 81.
Acting Chairman
Amendment No. 254h is a Government amendment. Amendments Nos. 254i and 254m are consequential. Therefore, amendments Nos. 254h, 254i and 254m may be taken together by agreement.
Government amendment No. 254h:
In page 87, lines 18 to 39, to delete subsection (1) and substitute the following new subsection:
"(1) (a) In conjunction with the inclusion of the housing strategy in its development plan, a planning authority shall ensure that sufficient and suitable land is zoned for residential use, or for a mixture of residential and other uses, to meet the requirements of the housing strategy and to ensure that a scarcity of such land does not occur at any time during the period of the development plan.
(b)A planning authority shall include objectives in the development plan in order to secure the implementation of the housing strategy, in particular, any of the matters referred to in section 80(3), including specific objectives in relation to the areas zoned for residential use, or for a mixture of residential and other uses, in the plan.
(c)Specific objectives as referred to in paragraph (b) may be indicated in respect of each area zoned for residential use, or for a mixture of residential and other uses, and, where required by local circumstances relating to the amount of housing required as estimated in the housing strategy under section 80(4)(a), different specific objectives may be indicated in respect of different areas, subject to the specified percentage referred to in section 80 (4)(c) not being exceeded.
(d)In order to counteract undue segregation in housing between persons of different social backgrounds, the planning authority may indicate in respect of any particular area referred to in paragraph (c) that there is no requirement for housing referred to in section 80(4)(a) in respect of that area, or that a lower percentage than that specified in the housing strategy may instead be required.".
Subsection (1) is being strengthened to make it clear that the planning authorities are obliged, having done their housing strategy, to ensure that sufficient land is then zoned for residential development to accommodate the housing needs of the area over the planned period and also to ensure that a scarcity of development land does not occur, pushing up prices due to an excess of demand over supply. The local authority must ensure that the objectives of the development plan deliver on the implementation of the housing strategy.
Particular reference is made to the aspects referred to in section 80(3), that is social housing needs. The need for a supply of housing which is affordable to persons on lower incomes, the demand for different sizes and types of houses and specific objectives can by applied in accordance with the housing strategy to residential or mixed zonings in the development plan. For example, a certain mixture of house types or sizes, a certain number of houses for first-time purchasers or a requirement that a stated percentage of land be reserved for social and affordable housing. The previous subsection (1)(a) has now been split into two and there is a consequential amendment, amendment No. 254m, to section 82(2) to replace the reference to section 81(1)(a) with section 81(1)(b). There is a change to paragraph (b), which will become paragraph (c), to make it clear that different specific objectives can by applied to different areas within the local authority's territory where this is indicated by the needs as assessed in the housing strategy.
Subsection (2) provided that the provisions in relation to the implementation of the housing strategy did not prevent the development of land exclusively for social housing, and that is a clarification. Amendment No. 254i amends this provision to include affordable housing.
In its last development plan Dublin Corporation rezoned the last piece of agricul tural land within the city boundaries. We are running out of suitable land for housing. There is very little land to rezone even though there is a great need for housing. How can Dublin Corporation deal with that issue? That is the difficulty with this section of the Bill.
I like the emphasis of the section on trying to achieve a mix of residential and other uses and to avoid undue segregation. What I presume is intended regarding the housing strategies which will be developed is that the local authority, when it has conducted its consultation, will determine how the 20 per cent social housing will be applied in a particular development and it will use anti-segregation measures, for example, so that the entire 20 per cent, if it is as much as that, will not be in one particular pocket and create segregation. I welcome that proposal.
Senator Joe Doyle and the other Senators have much more experience of this issue than I as they are members of local authorities, but it is extraordinarily depressing to see the increased urban sprawl in the Dublin area, particularly in north Dublin, which has taken up huge areas of good agricultural land which had been so important to the supply of vegetables, fruit, etc. to the city for generations. One can only hope the national plan will help to take away some of the incredible burden of planning authorities in the Dublin region. As Senator Doyle said, the last bit of agricultural land in the Dublin Corporation area is gone. Where is it supposed to find further land?
Senator Joe Doyle supported it. I opposed it.
Pelletstown was a very good decision.
It was the last piece of agricultural land and it was zoned for development.
I look with regret at what is happening in north Dublin.
I would be concerned about this aspect, that there will be a single housing strategy to deal with this problem. How will this single strategy work in regard to local elected representatives, who want to have an input? I agree with the concept that up to 20 per cent will be earmarked for social housing and I would be conscious of the anti-segregation measures which we will have to endorse in our own areas. Senator Joe Doyle pointed out that Dublin Corporation has no land left and that will have an impact in the Fingal or South Dublin county council areas.
We will go down to Navan, County Meath.
It is difficult to see how the single housing strategy will work with regard to this problem. It is a thorny problem in the wider issue of planning in which I am very interested.
I welcome the amendment. It is essential that there is an onus on local authorities to provide adequate suitable land for housing. In the past we have tended not to do that. I have some sympathy for Senator Joe Doyle and his colleagues in Dublin who were pilloried for many of the zoning decisions they made when, in fact, inadequate rather than too much zoning was the order of the day.
I also support strongly the anti-segregation measures. There is a real need for social inclusion. I pointed out on Second Stage that in many public housing schemes there is a problem of anti-social behaviour. While the legislation exists, in practice very little effective action has been taken to remedy such anti-social behaviour. I have serious concerns that people who, over a period of 25 or 30 years, will have to pay a very high price to provide their own house – an achievement that everybody aspires to – will end up in a situation where anti-social behaviour in their housing estate is not being tackled. The Minister should insert in the guidelines some sort of provision that a local authority would have to take effective action. Therefore, the onus would be on local government and the Garda authorities to deal with instances of anti-social behaviour.
A number of points have been raised by Senators Joe Doyle, Ormonde and Henry about what might happen in Dublin. Those Members will be aware of the strategic planning guidelines for the greater Dublin area, which examined the potential growth not just in Dublin city and county but also in the neighbouring counties of Meath, Kildare and Wicklow which were taken as a unit. The aim of the guidelines, which will be reflected in the local development plans, is for a more compact city. Local authorities in Dublin have come up with a common strategy to tackle the housing situation. Within the city area itself, the Bacon report and other reports from various professional bodies have advocated a greater use of brownfield sites and increased housing density as a means of trying to make the city more compact and ensuring that the urban sprawl does not continue. There are ways and means of trying to contain this. It is no longer sustainable to build houses in the Dublin suburbs or in Meath and Kildare at levels of four, five or six houses per acre. It just cannot continue. The strategic planning guidelines indicate the need for integrated measures, not just for housing but also for public transport. This is also catered for in the national development plan.
Housing strategies in Dublin will be matters for members of the city's local authorities. They will make policy decisions and the execution of policy will be a matter for local officials. It is vitally important that local authority members in Dublin and elsewhere should make themselves aware of the necessity for higher density housing and sustainable development throughout the area.
I thank Members for their support for the social integration aspects of the legislation. As they will know, the bodies that have been most vociferous in their objections to the proposals in Part V of the Bill are the builders, developers and auctioneers who do not support the concept of social integration. My answer to that is to look at the alternative. Unfortunately, we have plenty of examples of it around Dublin and other cities. It was a mistake in the past and we should not repeat it in future. I have no doubt there will be some difficulties with this matter. The construction industry and the developers are more than welcome to talk to me about aspects of the legislation and its implementation, including the guidelines, provided they realise that I will not back off the principles in this section of the Bill – of obtaining affordable social housing and social integration.
As Senator Walsh said, most of the anti-social behaviour we have in various parts of Dublin and in other parts of the country has arisen because we did not plan properly for socially integrated housing estates in the past. While there will probably be difficulties, this is the way to get to the root of the problem. There will be a greater enforcement of action against people who are anti-social if there is a better mix. Generally, two or three very anti-social people can intimidate other residents of a housing estate, but with a greater social mix I do not think that would happen. People would be more aware of their rights. I certainly think it will be a huge advance and something we will not see the benefits of for ten, 15 or 20 years.
I welcome the Minister's view on the concept of social integration. It seems that this will be worked out between the developer and the planning authority. That can vary from one area to another, however, depending on the personality of the planner. Will it be up to the developer to decide who will go into the affordable accommodation which is integrated into a housing scheme, or will the local authority decide? It is an important point because the developers would like to be able to make the selection. In the midst of a scheme of nice houses there may be ten affordable ones which will be integrated into the scheme, but it is important to know who will make the decision on allocation. If it is entirely a matter between the developer and the planner there is a weakness because the arrangement could be an ad hoc one, depending upon the personalities involved at a given time.
I fully concur with what the Minister is recommending. In the past we zoned particular areas purely for social housing and what happened was very simple. A handful of people created a disturbance so the area became labelled. As a result, people who had a commitment to the community decided to move out, yet they were the very people who would be able to build up a community spirit in the area. When a label attaches itself to a place it is very hard to shake off.
As regards the percentages involved in social integration, it is hard to categorise but sociological categories exist for those on various incomes, the unemployed or unskilled workers. To what degree would integration occur and how? Houses do not make communities, so when a plan is being developed it is critical to recognise that for true integration to take place it is not enough to mix a certain percentage of social housing with private housing. The people living there will have to be integrated also and that must be taken into account in the plan. Whatever local authorities can do to enhance community spirit and integration should be put into place at the time. I am thinking of the provision of open space and its allocation, so that it is not segregated, with an open space at one end of a social continuum and another space at the other end. The result of that would be that people from one end would be segregated, or would segregate themselves deliberately. That must also be taken into account in the plan.
My concerns are similar to those of Senator Coogan. I am not too sympathetic to those who are putting up the developments because we are talking about an upper limit of 20 per cent. No lower limit is being discussed so we could end up with it being one or two houses. That would be my concern. Like Senator Coogan, I would not like to see the sheep on one side of the green space and the goats on the other. Will any attempt be made to ensure there is some sort of integration? The fact that a percentage of a scheme is given over to social housing does not ensure social integration. Arising from what Senator Walsh said, there is a concern on this side of the House about adequate infrastructure. The lack of infrastructure such as schools, shops and so on has led to disaster in many large housing estates. I look forward to the Minister's comments on this.
I support Senator Coogan. Some social housing schemes have set a fine example in including community facilities. What is envisaged in the Bill might contain something similar. It may not be necessary to specify it in the Bill but could be included in guidelines or in the development plans of local authorities. This has been a positive development for social housing.
I was struck by what Senator Ormonde had to say. I had presumed that was being dealt with in the Bill and perhaps the Minister will clarify the method of allocating the 20 per cent of social or affordable housing. Will it be done purely in consultation between the planning authority and the builder or will local representatives have a role in it? We are discussing housing strategy but it is not clear how a planning appli cation for an individual parcel of land will be dealt with or how the allocation of the 20 per cent of affordable housing will be determined geographically and in a manner which promotes social inclusion. These matters must be teased out. We want to build up cohesive communities which are not two-tiered. Senator Doyle cited the example of Pelletstown. An action plan was put together and approximately 40 of the 100 acres have been set aside for amenities. The development will take into consideration the Royal Canal amenity and the builder has agreed to this. This plan will be put to the local councillors who know the area and can judge whether it would work, rather than being agreed between the planning section and the builder. Can the Minister confirm that this method of agreeing a scheme is covered by this section? I am not sure it is.
The local authority will decide on the allocation of affordable housing in accordance with the scheme of priorities decided by the members. Members have that reserved function and management will execute it. In drawing up and passing a housing strategy, members will deal with issues raised by Senators regarding the geographic location of affordable housing and so on. General housing strategy will be decided by local authority members based on the information available to the local authority.
The allocation of the houses will be entirely a matter for the local authority, based on the ordinary social housing list and the list for this affordable housing scheme. The local authority and the developer will agree on the precise outcome under the terms of the Bill and having regard to the needs of the housing strategy. It is necessary to have some flexibility with regard to this but any decision made between the builder and the local authority, in an executive fashion, must be done in accordance with the housing strategy. That is why it is important that members who want to ensure there is social integration pay careful attention to what is presented to them for agreement. Management will provide a draft housing strategy and members can have an input into the strategy at that stage. If there is a dispute with regard to the exact land to be transferred it will be referred to An Bord Pleanála for decision. Everything will be done in the context of the general housing strategy.
I accept the points that have been very adequately made by Senator Walsh, Senator Coogan and Senator Costello about social integration and the importance of estate management. Senators Henry and Walsh will recall our long discussion at an earlier stage of the Bill about the necessity for adequate infrastructure. Provision for these facilities can be made in other sections of the Bill and does not need to be specified here. Senator Coogan also asked about the method of allocating the percentage of affordable housing. This matter and the question of estate management are catered for elsewhere in the Bill or in previous legislation. Proper implementation will ensure proper social integration.
Amendment agreed to.
Government amendment No. 254i:
In page 87, subsection (2), line 41, after "(i)" to insert "or (ii)".
Amendment agreed to.
Acting Chairman
Amendments No. 254j and 254k are related and may be discussed together.
Government amendment No. 254j:
In page 87, subsection (3)(b), line 49, to delete "may at any time" and substitute "shall".
These amendments will ensure that the provisions of the Bill are applied flexibly and that members of local authorities are kept fully informed. They strengthen the provisions and place a duty on the manager to report on the housing strategy where a significant change in the housing market has occurred. This also applies where ministerial regulations change the definitions of eligibility for affordable housing. The provisions will ensure that members are fully informed of all changes.
I support these amendments. In the past I found that local authority members were not informed of what was happening. I welcome these measures to ensure that managers inform members of what is going on.
Amendment agreed to.
Government amendment No. 254k:
In page 87, subsection (3)(b), line 51, after "market" to insert ", or in the regulations made by the Minister under section 85,".
Amendment agreed to.
Section 81, as amended, agreed to.
SECTION 82.
Government amendment No. 254l:
In page 88, subsection (1), line 5, to delete "subsection (10)" and substitute "subsection (12)".
This amendment is consequential on amendment No. 254t, which we will discuss later, and corrects a reference because of the insertion of the new subsections.
Amendment agreed to.
Government amendment No. 254m:
In page 88, subsection (2), line 16, to delete "section (81)(1)(a)" and substitute "section (81)(1)(b)".
Amendment agreed to.
Acting Chairman
Amendments Nos. 254o, 254p, and 254q are consequential on amendment No. 254n. Amendment No. 254r is related. All may be taken together by agreement.
Government amendment No. 254n:
In page 88, subsection (3), lines 17 to 23, to delete paragraph (a) and substitute the following paragraphs:
"(a)An agreement under this section may provide for—
(i)the transfer to the planning authority of the ownership of the land required by the agreement to be reserved for the provision of housing referred to in section 80(4)(a),
(ii)instead of the transfer of land referred to in subparagraph (i), the building and transfer, on completion, to the planning authority, or to persons nominated by the authority in accordance with this Part, of houses of such number and description as may be specified in the agreement at a price determined on the basis of–
(I)the site cost of the houses being calculated as if it was equal to the cost of land transferred to the authority under subparagraph (i), and
(II)the building and attributable development costs as agreed between the authority and the developer, including profit on the costs,
or
(iii)instead of the transfer of land referred to in subparagraph (i), the transfer of such number of fully or partially serviced sites as the agreement may specify to the planning authority, or to persons nominated by the authority in accordance with this Part, at a price determined on the basis of—
(I)the site cost of the sites being calculated as if it was equal to the cost of land transferred to the authority under subparagraph (i) and
(II)the attributable development costs as agreed between the authority and the developer, including profit on the costs,
(b)Where an agreement provides for the transfer of land, houses or sites in accordance with paragraph (a), the houses or sites or the land, whether in one or more parts, shall be identified in the agreement.
(c)In so far as it is known at the time of the agreement, the planning authority shall indicate to the applicant its intention in relation to the provision of housing, including a description of the proposed houses, on the land or sites to be transferred in accordance with paragraph (a) (i) or (iii).
(d)Nothing in this subsection shall be construed as requiring the applicant or other person to enter into an agreement to transfer houses or sites in accordance with subparagraphs (ii) or (iii) of paragraph (a) instead of transferring land in accordance with subparagraph (i) of that paragraph.".
These are a number of very significant amendments to section 82, which is an obviously pivotal section in terms of the operation of Part V and delivering the policy objectives underlying this Part. A new subsection (3) is being inserted to enable the local authority and the developer to make more flexible arrangements for securing the provision of social and/or affordable housing in conjunction with the provision of private housing.
Instead of transferring the land to be reserved for social and affordable housing to the local authority, with the authority contracting for the erection of the houses afterwards, there is now an express provision enabling the authority and the developer to enter an agreement which would result in the developer building the social and affordable houses at an agreed cost and transferring them to the local authority on completion. The cost of these houses would be based on the existing use value of the land or site, but the builder would be entitled to charge the full commercial price on the building and site development costs.
This type of arrangement would, in some circumstances, be advantageous to both the local authority and the developer. The local authority would get the houses much more quickly than otherwise and the whole development could be built in a more coherent and integrated manner.
It also holds out possibilities for builders to work with voluntary housing associations and bodies in putting together proposals that would meet the social and/or affordable housing requirements without a transfer of land to the local authority, but with the land being costed at existing use value. Some developers may prefer to work in this way, especially those who have experience of working with housing associations in Britain.
As an additional element of flexibility, arrangements can also be made for the transfer of fully or partially developed sites to meet the social and affordable housing elements of a development. These could be transferred directly to the local authority or to nominated eligible persons who could then arrange to build for themselves. The builder would be able to charge a commercial price for the development works carried out, which would have to be agreed with the local authority.
However, all these alternative arrangements are entirely at the election of the developer, who always has the option of agreeing a straight transfer of the land. The wording of the section also makes it clear that the essential obligation which the local authority can enforce is the requirement to transfer land.
There is a new provision urging the local authority, where it can do so, to indicate to the developer its intentions in regard to the type of housing it proposes to build on the transferred land. In fairness to the developer, he or she is entitled to know the kind of development a local authority has in mind, so that the impact on the overall development can be assessed.
There is a new provision requiring the local authority to have regard to the views of the developer in relation to the impact of the agreement concerning the transfer of land or other arrangements on the development. This might include, for instance, such aspects as the viability and phasing of the development. It is important to stress, however, that this does not affect the requirement and the principle to transfer land but is, rather, in relation to the identification of the particular piece of land to be transferred.
What the Minister is proposing here does not undermine the principle of the allocation of up to 20 per cent for social and affordable housing, which is welcome, but is giving the option to the developer of building or making some other agreement rather than transferring the land.
My only concern is that while the site will be taken at its pre-zoned, normal cost, the builder will have his profits after the cost of labour and materials. That seems to suggest the builder will be fully in the marketplace in regard to the premises he constructs. Profits on residential developments, particularly in Dublin, are exorbitant and do not relate to the actual costs of labour and materials. The marketplace is artificial in that respect.
I am concerned that we will move away from social and affordable housing because, while the cost of the site will be anchored down and will not be the market price, which is welcome, the enormous cost of the house will not be very different. While the builder can subtract the site cost of £10,000, £15,000 or £20,000, it seems the profits on the sales in the current artificial market will militate greatly against any house returning to the local authority, a voluntary body which requested it or an individual on the register of those qualifying for a local authority house. The situation will be very difficult.
I would like a better formula. Rather than using the full profits in the marketplace, there should be an agreement, as existed in the past, whereby the building and labour costs would be taken into consideration and a reasonable mark-up price would be set, giving a 10 per cent or 15 per cent profit. That would prevent inflated prices for houses which are being built for the benefit of the local authority.
I thank Senator Costello for his support of this amendment, which is very important. He has made several statements about the necessity to put these social and affordable housing provisions into effect as quickly as possible.
I take the point he made about profits. The easiest answer I can give is that if a builder wants to include an exorbitant profit in the price of the houses that will become available under this agreement, the local authority can tell him they are not affordable houses as far as it is concerned, there is no agreement and that he has to hand over 10 per cent, 15 per cent or 20 per cent of the land. That is the only safeguard the local authorities have because they are not obliged to let the developer build – they have the call in that regard.
I know there was some confusion about this, but if the land is signed over to the local authority and it arranges to build itself, the tender price includes profit. In essence, what is being cut out is the need to transfer the land. However, I take the point. The only straightforward answer I can give is that if the builder gets too greedy, which is not beyond the bounds of possibility in that profession, the local authority can say the houses are not affordable and that the objective is not being achieved. It can tell the developer to sign over the land and build the houses itself or to get another builder to do so. That is the safeguard.
Many builders will value the opportunity to build the houses themselves, to have only one builder on the site and to be able to integrate the social or affordable housing on their own site rather than the local authority coming in to do so. This is a significant incentive for them not to try to extract the huge profits they are obviously extracting otherwise. The safeguard is reasonably good and this has the extra benefit of producing the houses perhaps quicker than if we had to go through the Land Registry, transferring land and so on.
How will the portion of land to be dedicated to the local authority be determined if this route is followed? Sites will vary and some parcels of a landbank can be more difficult and costly to develop. Will the discretion rest with the local authority or the developer? This is an important point.
The Minister stated that houses would be transferred at the site cost which would have been the cost pertaining to the local authority which are agricultural prices, and then the full market value. I have difficulties in this regard and perhaps the Minister would clarify whether the price will be fixed. Gazumping is taking place because demand is outstripping supply and house prices are going up by £10,000 or £15,000 within a few months. There is also a tendency for builders to let houses go at a lower price initially. I have difficulty with this proposal if the full market value is to be used. I support free market principles and market forces tend to regulate matters properly. However, there is a social aspect to housing and interventionist approaches are required in the current climate.
Would the Minister consider reintroducing the certificate of reasonable value to control the price of houses? Certificates applied in the 1970s when house prices were fairly depressed. In the application of this measure, and it might be included in the guidelines, I hope that local authorities would apply the current market price they are paying for the development of similar size houses within their own jurisdiction rather than leaving it to the market value. That would help to keep prices down.
Within the guidelines, housing co-operatives should be used and established as a conduit for the application of the principles involved. This goes to the core of this provision and much of what we are trying to do about the housing situation. This is an extremely welcome and well constructed development. My comments are geared towards the detail rather than the principle, which is first class.
Senator Walsh made many of the points I wished to make. I welcome the concept of the developer building and this will give an integrated look to new schemes. We have had experience of voluntary housing associations in south Dublin where there are many fine housing schemes in Clondalkin built on land reclaimed by the corporation. In Saggart the community council and local people are in discussions with developers as to how they can obtain affordable houses. This scheme is working well in conjunction with the local authority.
One could highlight negative points about any legislation but I do not want to go down that road. However, if we stipulate that one in every ten houses in an integrated scheme would be affordable, would this lend itself to shoddy workmanship in order to keep the cost of the house down? Would a situation arise where one house would have three bathrooms while the house next door had only one? This is a fact of life. I am trying to think this through and we are going to be asked this question. What are the Minister's views on this issue? I have no difficulty with, and have always believed in, the village concept. However, some people will ask why they have only one bathroom while a neighbour has three.
On Second Stage I proposed that builders be given an opportunity of building for local authorities, and I am glad the Minister has introduced this amendment. The Minister has clarified that the local authority will have the final call if it is not satisfied with the price being charged by the builder. In such situations local authorities can build the houses themselves.
During the 1970s and 1980s, when inflation was high, local authorities encouraged small builders and gave them sites to build social and affordable housing. The concept of social and affordable housing goes back to that time. Local authorities designated small areas and produced houses at well below the normal price which were used to house people on lower incomes. I welcome the principle of social housing but we are only continuing a principle which was adopted years ago.
I welcome the ideals and concept enshrined in this section. I am sure that local authorities will make a good case for builders as they have much expertise and experience. However, if the builder is restricted within the 20 per cent concept and his profits are small, is there a danger that the price of houses in the other 80 per cent would increase to make up the shortfall? People involved in the building sector have highlighted this danger. I hope this will not happen as local authorities have been generous to builders over the years, particularly in bad times. I hope we will not see an increase in the price of private sector housing as a result of the restrictions placed on builders due to the 20 per cent concept, which is welcome.
There is no doubt that the construction federation will cry wolf. Some of its submissions on Dublin Corporation's development plan specifically requested that any reference to any social agenda be excluded as that was not the purpose of a development plan. They will try to raise as many fears as possible about the cost of other housing.
The Minister stated that the safeguard is that the local authorities can say no thank you to developers if they impose an exorbitant rate. The Minister has made this proposal which gives the welcome option of transfer or allowing the developer to build. It is likely that most local authorities will choose the latter because it is simpler than bringing in a new contractor. All local authorities seek tenders from contractors nowadays. There would be little point bringing in a second developer or builder when there is a builder with the planning permission on site already. It will cut costs in the long term not to split a project 80-20 between two contractors. It would also be more desirable to have one builder build an entire project. I would imagine that the vast majority of developments will be done in that way.
My concern remains about amendment No. 254n, the proposed (a)(ii)(II) which refers to "the building and attributable development costs as agreed between the authority and the developer, including profit on the costs,". The first part of this provision refers to the building and development costs "as agreed between the authority and the developer" and it is a safeguard. However, the phrase "including profit on the costs" seems rather stark. Profit on the costs to the developer means the market profits. Unless we constrain that in the legislation then that will be the interpretation. It will be difficult for the local authority and the builder to decide in advance the exact amount of profit because the market changes so much and building is generally not completed within a period of six months.
We need to insert a provision on the lines of what Senator Walsh and others have said. He said that we should go back to the concept of a certificate of reasonable value which would be determined on the basis of examining the costs of labour and materials and adding a mark up on that. That was the old way of doing it.
Perhaps the Minister would examine this section again. Unless there is an agreement on the profit on the costs builders will argue strongly about them after projects have been completed. What happens if there is a disagreement about costs between the local authority and the builder after the construction has taken place? We must get a formula that will reflect a reasonable profit on the costs.
If Members look at the detail of this section again, most of the valid points and concerns expressed by Members are covered in it.
With regard to price, Senator Ormonde's point about the danger of shoddy work on houses designated as social and affordable housing and Senator Costello's point, it is specified in this Bill that the agreement will be for a certain number of houses of a certain description at a stated price. When the agreement is signed the price, the type of house and all the details are fixed. As in a local authority housing scheme, even though the builder may say he is finished, the council will send a clerk of works or an engineer to check that building is up to standard before the houses are taken over by the local authority. There are safeguards in this.
The price and description must be in the agreement. I think I dealt with the issue of profit. If a builder is looking for exorbitant profits it will mean his houses are not affordable. Therefore, the local authority will have to say to the builder that it will take the land instead and build affordable houses. That is the safeguard. It addresses the questions raised about people being gazumped, full market values and current prices. As Members know, local authorities have their own housing schemes and deal with builders on a regular basis. Therefore, they have a good idea – a better idea than most people – about the going rate for housing in a particular area. If a builder tries to get up on the local authority's back, so to speak, under this scheme it has the option to say that it cannot reach an agreement on the project, that the builder is looking for too high a profit and that the houses are not affordable, and it can take the land. This section adequately deals with the points raised.
With regard to Senator McDonagh's point about passing on costs, the same point arises. If the local authority is involved in this business it will have a good idea of prices. There is no need for builders to increase the price of houses and take the level of profits that they are taking at present. I discussed this last week on a number of radio programmes. The other planning changes we have made, particularly the changes in densities, will more than adequately compensate builders. I have not noticed, unfortunately, that the price of new houses has been reduced in any of the new areas or any areas where increased densities have been granted.
Despite what builders have said, and while it may not be widespread yet and they may not have reached sites where the increased densities have been given, increased densities are being granted. Last week I gave an example that up to the change in densities one would get, on average, ten houses per acre on 100 acres, taking into account differences between city and county areas. The increased density guidelines offer about a 33 per cent to 40 per cent increased density on a site. Therefore, on a site where there could have been 1,000 houses at ten per acre, with the increased density a builder can now build 1,120 houses on 80 acres – that takes the 20 per cent into account. That is sufficient compensation for builders. There is no reason for them to increase house prices.
Last week builders made an attempt to frighten the public and to influence the debate that was taking place in this House, saying there would be a 24 per cent increase in house prices as a result of this Bill. There is no need for such an increase. It should not happen. House prices should be stabilised or even fall slightly in new housing estates. There is nothing in this Bill that will increase house prices. It is only the greed of builders that will increase house prices.
Hear, hear.
There is a related point which arises later under another amendment. It would speed matters up if we could deal with it now. Otherwise we will be rehearsing the same arguments again. It relates to section 82(8), that would become section 82(9) if we adopted the later amendment, and the option for the local authority where the site is not suitable to get the amount equal to the market value. The matter was raised by Senator Walsh. The critical term "market value" was not in the original Bill but it is included in the amendment. I have a vested interest in this matter because I have zoned land, as I have stated before. How is the market value to be established? Will it be established in the same way as in the case of motorway acquisitions? Perhaps the Minister would prefer to wait until we get to the amendment but I thought it would speed matters up.
It would be better to deal with it in context.
I wish to raise a matter which was mentioned earlier and is referred to in this amendment. It relates to the density as established by the local authority under the development plan and the density suggested by the greater Dublin guidelines. As I understand it, the development plan density is the one which operates. How can both positions be reconciled? There are situations where a local authority, under its development plan and zoning, establishes a low density but the Dublin guidelines suggest it should be higher.
All local authorities have been asked to respect the new guidelines issued on density. Regional planning guidelines will be given statutory effect when this Bill is enacted and local authorities will have to have regard to those and implement them.
Under the existing development plans, would material contravention be required to change the density to that required by the Dublin guidelines?
Yes, we are asking local authorities to take them into account and alter their development plans to ensure they comply with the regional planning guidelines and with the increased densities. If they do not do that, An Bord Pleanála will take it into account. However, I would expect all local authorities to comply.
I wish to make a correction before putting the amendment. There should be a full stop after "costs" at the end of paragraph (iii)(II).
Amendment agreed to.
Acting Chairman
I call on the Leader of the House to review progress.
On the Order of Business, I said I would review progress at 1 p.m. I have had discussions with the Whips and it is proposed to adjourn for lunch at the end of section 82 for 45 minutes.
Acting Chairman
Is that agreed? Agreed.
Government amendment No. 254o:
In page 88, subsection (3)(b), line 24, to delete "a transfer" and substitute "an agreement".
Amendment agreed to.
Government amendment No. 254p:
In page 88, subsection (3)(b)(ii), line 30, to delete "and".
Amendment agreed to.
Government amendment No. 254q:
In page 88, subsection (3)(b)(iii), line 32, to delete "relates." and substitute "relates, and".
Amendment agreed to.
Government amendment No. 254r:
In page 88, subsection (3), between lines 32 and 33, to insert the following new subparagraph:
"(iv)the views of the applicant in relation to the impact of the agreement on the development.".
Amendment agreed to.
Government amendment No. 254s:
In page 88, subsection (3), between lines 32 and 33, to insert the following new paragraph:
"(c)Government guidelines on public procurement shall not apply to an agreement made under paragraph (a)(ii) or (iii), except in the case of an agreement which is subject to the requirements of Council Directive No. 93/37/EECf7>1 on the co-ordination of procedures relating to the award of Public Works Contracts and any directive amending or replacing that directive.".
Paragraph (c) is being inserted as a consequence of the new provision to allow the developer to provide houses or development sites to the local authority and to ensure the position is not complicated by the application of public procurement procedures under EU rules and regulations.
Amendment agreed to.
Acting Chairman
Amendment No. 254t is a Government amendment. If this amendment is agreed, amendment No. 255 cannot be moved. Amendment No. 255 is related. Amendments Nos. 254t and 255 can be taken together. Is that agreed? Agreed.
Government amendment No. 254t:
In page 88, lines 33 to 48, and in page 89, lines 1 to 46, to delete subsections (4) to (10) and substitute the following new subsections:
"(4)In the case of a dispute in relation to any matter which may be the subject of an agreement under this section, other than–
(a)a dispute in relation to an agreement under subsection (3)(a)(ii) or (iii),
(b) a dispute as to the amount of compensation payable under subsection (5),
or
(c)a dispute as to the sum payable to a planning authority under subsection (10), the matter may be referred by the plan ning authority or any other prospective party to the agreement to the Board for determination.
(5)Where ownership of land is transferred to a planning authority in accordance with subsection (3)(a)(i), the planning authority shall by way of compensation pay to the owner of the land the greater of–
(a)an amount, representing the value of the land based on the existing use of that land calculated on the assumption that it was at that time and would remain unlawful to carry out any development in relation to the land other than exempted development, or
(b)where the land was purchased, or a legally enforceable agreement or option to purchase was secured, by the applicant for permission before 25 August 1999, the actual price paid or amount agreed to be paid under the option (and interest charges that have been incurred).
(6)(a)Subject to paragraph (b), a property arbitrator, nominated under the Property Values (Arbitration and Appeals) Act, 1960, under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919 shall, in default of agreement, fix the following where appropriate:
(i)the number and price of houses to be transferred under subsection (3)(a)(ii),
(ii)the number and price of sites to be transferred under subsection (3)(a)(iii);
(iii) the compensation payable under subsection (5) by a planning authority to the owner of land;
(iv)the sum payable to a planning authority under subsection (10).
(b)For the purposes of paragraph (a), section 2 (2) of the Acquisition of Land (Assessment of Compensation) Act, 1919, shall not apply and the value of the land shall be calculated on the assumption that it was at that time and would remain unlawful to carry out any development in relation to the land other than exempted development.
(c) Section 171 shall apply to compensation payable under subsection (5).
(7)(a)Where ownership of land or sites is transferred to a planning authority in accordance with subsection (3)(a)(i) or (iii), the authority may–
(i) provide, or arrange for the provision of, houses on the land or sites for persons referred to in section 80(4)(a),
(ii) make land or sites available to those persons for the development of houses by them for their own occupation, or
(iii)make land or sites available to a body approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act, 1992, for the provision of houses on the land for persons referred to in section 80(4)(a).
(b) Pending the provision of houses or sites in accordance with paragraph (a)(i), or the making available of land or sites in accordance with paragraph (a)(ii) or (iii), the planning authority shall maintain the land or sites in a manner which does not detract, and is not likely to detract, to a material degree from the amenity, character or appearance of land or houses in the neighbourhood of the land or sites.
(8)(a)Where a house is transferred to a planning authority or its nominees under subsection (3)(a)(ii), it shall be used for the housing of persons to whom section 80(4)(a) applies.
(b) A nominee of a planning authority may be a person referred to in section 80(4)(a) or a body approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act, 1992, for the provision of housing for persons referred to in section 80(4)(a).
(9) Notwithstanding any provision of this or any other enactment, if a planning authority becomes satisfied that land, a site or a house transferred to it under subsection (3) is no longer required for the purposes specified in subsection (7) or (8), it may use the land, site or house for another purpose connected with its functions or sell it for the best price reasonably obtainable and, in either case, it shall pay an amount equal to the market value of the land, site or house or the proceeds of the sale, as the case may be, into the separate account referred to in subsection (11).
(10) (a) Where for reasons of the size, shape or other attribute of the site, the planning authority, or the Board on appeal, considers that an agreement under subsection (3) is not practical, the planning authority, or the Board on appeal, may as a condition of a grant of permission in accordance with section 34 require the payment to the planning authority of an amount equivalent in value to a transfer of land to the authority under paragraph (a) of subsection (3).
(b) The condition specified in paragraph (a) shall provide that the sum shall be agreed between the planning authority and the person to whom the permission is granted and that in default of agreement the sum shall be fixed by a property arbitrator in accordance with subsection (6).
(11) Any amount referred to in subsection (9) and any amount paid to a planning authority in accordance with subsection (10) shall be accounted for in a separate account and shall only be applied as capital for its functions under this Part or by a housing authority for its functions in relation to the provision of housing under the Housing Acts, 1966 to 1998.
(12) This section shall not apply to applications for permission for–
(a)development consisting of the provision of 5 or fewer houses,
(b)development for housing on land of 0.2 hectare or less,
(c)the conversion of an existing building or the reconstruction of a building to create one or more dwellings, provided that 50 per cent or more of the existing external fabric of the building is retained, or
(d)the carrying out of works to an existing house.
(13)A permission granted under Part IV of the Act of 1963 or under Part III of this Act pursuant to an application made after 25 August 1999 and to which this Part would have applied if the application for permission had been made after the inclusion of a housing strategy in the development plan under section 80(1), shall cease to have effect on 31 December 2002 or on the expiry of a period of 2 years from the date of the grant of permission whichever is the later, as regards–
(a)where the development to which the permission relates is not commenced by that date or the expiry of that period, the entire development, and
(b)where the development to which the permission relates is commenced by that date or the expiry of that period, any portion of the development consisting of buildings for which the foundations have not been completed, but without prejudice to the obligation on the person carrying out the development to fulfil the other requirements of the permission in relation to so much of the development as is not affected by this paragraph.".
These amendments cover a fair amount of ground and I will try to get through them as quickly as possible. The only substantive change to section 82 relates to the resolution of disputes and is consequential on the additional options now introduced in subsection (3). The other changes are designed to improve the drafting.
Any dispute that might arise in regard to the amount of compensation, such as for land transferred to the local authority and/or affordable housing, is a matter for an official arbitrator. Any other dispute would be referred to An Bord Pleanála for resolution, as we discussed earlier. It is only the local authority, developer or landowner who may refer such disputes to An Bord Pleanála, which we also discussed previously.
Section 82 (5) provides that where land is transferred to a planning authority in accordance with subsection (3), the compensation to be paid is to be based on the existing use of land or, where the land was bought before the date of the publication of the Bill, the price actually paid, whichever is the greater. The amendment to subsection (5) is to clarify the definition of "existing use value". The definition now proposed is the same as that in the Taxes Consolidation Act, 1997. It is important that this Bill is in line with that. There is no policy change – it makes it clear based on precedence.
In subsection (5)(b), the words "legally enforceable agreement or" are inserted before "option" for reasons of clarity. The only substantive changes to subsection 6 are consequential on the additional options in subsection (3) which we discussed. The amendments to subsection (7) are largely technical. The subsection sets out the use to which planning authorities can put any land transferred to them under this section. A new paragraph (b) is being introduced to subsection (7) which will place an obligation on the local authority to ensure the lands or sites transferred to them under this section are maintained in a proper condition and in a state that does not adversely affect other houses or lands in the neighbourhood. That was included as a result of observations we received.
Subsection (8) is a new subsection which is also consequential on the additional options introduced in subsection (3). It specifies that any houses made available under the second option must be used for the provision of social or affordable housing for persons eligible for such housing. However, the houses do not have to be transferred to the local authority. An alternative arrangement involving the transfer to an approved voluntary housing body will meet the requirements, provided the houses are made available to eligible persons.
Subsection (9) is also a new provision and makes it clear that if a local authority is in possession of land or houses as a result of the operation of this section and due to a fall off in the demand for social or affordable housing in a particular area such housing is no longer required, it may divert the land to other purposes connected with its functions, for example, as a community facility, library etc. and sell it, or houses, on the market. However, there is an important requirement to keep faith with the purposes of section 82 – where the land is diverted to another use, the money must go into a separate account to be expended on social and affordable housing. Simi larly, if land or houses are sold, the proceeds must be treated in the same way. Subsection (10) provides that instead of a transfer of land, where it is not practical because of the size of the site, the planning authority may require payment of an amount of equivalent value. The first amendment clarifies the section and substitutes an amount for "a sum equivalent in value".
The Labour Party amendment No. 255 is an alternative wording. The meaning of the subsection with my proposed amendment is sufficiently clear and, therefore, the Labour Party amendment is unnecessary. The same principle is conceded in this amendment. My second amendment to subsection (10) provides that where the planning authority and the person granted planning permission cannot agree the sum to be paid, the matter shall be determined by the property arbitrator rather than An Bord Pleanála. A dispute in relation to the amount to be paid would be more appropriate to the expertise of a property arbitrator.
The purpose of the amendments to subsection (11) is to bring the wording into line with other amendments to this subsection. The amendments to subsection (12) raise the exemption threshold. The original text provided that the provisions of this part of the Bill would apply to all developments in excess of two dwellings on 0.2 of a hectare. That is being changed to five units. This could be applied more easily having regard to the maximum quota of 20 per cent. The level of the threshold is now balanced having regard to all the interests involved. I realise that the existence of a threshold below which the requirements of this part do not apply creates a risk that developers will try to use the exemption to avoid the requirements of the strategy perhaps by breaking up sites. It is the obligation of Government to ensure that any loopholes are closed off. I hope to introduce an anti-avoidance amendment on Report Stage to ensure this measure is not abused. I have retained the threshold for housing development on 0.2 hectares or less of land. The exemption for reconstruction has been tidied up to ensure, for example, that a major apartment development cannot be considered a conversion by virtue of retaining a small portion of the walls of the old building.
Subsection (13) is a new subsection dealing with time limits on planning permission. The amendment provides that planning permissions granted for residential developments on applications made after the publication of this Bill and before the incorporation of a housing strategy into the development plan will wither at the end of 2002 or two years after the grant of permission whichever is the later for houses not commenced by then. This would give builders a reasonable opportunity to build out permissions obtained before the coming into force of housing strategies under the Bill. It is desirable that all developments should be governed by the same rules as soon as possible both in the interests of equity between developers and the implementation of policies underlying this part. The permission will cease to exist in relation to so much of the development as has not been commenced. Paragraph (b) provides that where part of a development has commenced, the developer is bound by the conditions of the planning permission in so far as they relate to the development commenced. Thus, if three-quarters of a development has commenced, a developer will be bound to complete the roads, open spaces, etc., for that part of the development as set out in the planning permission.
This is a long amendment. The informal text, which has been circulated and which highlights the amendments to the original text, should be helpful to Senators. I believe the amendments strengthen and clarify the section, thereby making it much more effective.
Suppose the building strategy is in place and by subterfuge a builder decides to stage his development by applying for permission to build four houses at a given time – 20 per cent of which would not be adequate to provide a house – is there any way of ensuring this form of staged development will not take place which would allow the builder to avoid providing the 20 per cent required?
I was about to raise the same issue as to whether a builder could make separate applications and thereby seek to defeat the purpose of the legislation. The Minister has covered a range of issues, which I find confusing. My amendment No. 255 proposes to deal with what I regard as a major omission in the Bill where the developer can pay a sum of money rather than transferring 20 per cent of the land. It is not specified how this sum of money will be calculated. As the Minister seems to have adequately dealt with this issue, I will withdraw my amendment.
I am concerned about the issue raised by Senator Costello. Is it correct to say that at the stage in the process when the authority has the land, if it considers the size is not suitable, is it transferred at its market value into an account?
Whatever they get for it.
My point is that there may not be a disposal. Is it the market value on the day or the market value when the land was acquired which is applicable? This is a small technical but significant point. I understand what the Minister is saying about the arbitrator. I assume that would work in the same way as a motorway acquisition. In relation to Senator Coogan's point, could there be sequential developments of an area lower than the specified area, thereby unwittingly creating a loophole? I know the Minister intends introducing anti-avoidance measures and this is obviously an area where such measures would be required.
If the land becomes surplus to local authority requirements for housing purposes as a result of market changes, the local authority will be in a position to use the land for community purposes and so on. Therefore, cost does not arise. If the land is sold, the money must be lodged in a special account. I appreciate that Senator Costello is withdrawing his amendment which is now incorporated in my amendments.
There are no anti-avoidance measures outlined as yet because we are still working on them. I assure the House that anti-avoidance measures will be put in place to deal with the issues raised by Senators Coogan and Costello. My understanding of staged development is that full planning permission is granted for 200 or 300 houses. Staged developments of three and four houses will not constitute a loophole in the legislation. This will not be a method whereby developers can get round the provisions laid down in the legislation. Careful consideration is being given to anti-avoidance measures in order to close a variety of loopholes which it is anticipated could be exploited. I assure Senators that these measures will be considered for Report Stage, otherwise I will be back in this House after the Bill goes through the Dáil to ensure anti-avoidance measures are put in place. I will be pleased to receive suggestions from Members on Report Stage or later. There is no limit to the ingenuity of some people to discover loopholes.
Amendment agreed to.
Amendment No. 255 not moved.
Question proposed: "That section 82, as amended, stand part of the Bill."
I oppose sections 82, 83, 84, 85 and part of section 86. I wish to voice my objections to these sections now and I will try not to repeat myself later.
Members on this side of the House are fully supportive of the thrust of the Bill, namely, the concept of proper social integration. To date we have tried to be helpful in terms of making proposals and suggestions, many of which the Minister has either taken on board or placed under consideration for Report Stage.
My concern, which I also voiced on Second Stage, relates to the constitutionality of section 82. Under Article 43 of the Constitution, there is a possibility that the section might be challenged. There is also a possibility that it could be challenged on the grounds of discrimination rather than those of property rights. My concerns in this regard have not been laid to rest.
The Minister has probably had long debates about this matter with people who are more familiar than I with the legal niceties of the situation. However, I have spoken to a number of people who believe that while builders might be more satisfied with the position following the introduction of the Minister's amendments, they may still decide to mount a challenge to the section. There are a number of grounds on which they may do so. For example, 20 per cent of the allocation decided upon in a local authority's strategy plan may be given to one or two developers or builders. These individuals will be quite satisfied with the position but the developers who were not included may be disgruntled and they might decide to challenge the allocation on the basis that it was inequitable.
There is another aspect of this matter which has given rise to concerns. Senator Walsh referred to housing co-operatives and I accept that these played an important role in the past. However, I had a discussion earlier today with a member of a housing co-operative which obtained land from a local authority and proceeded to develop it and he informed me that one of the houses built on that land was being sold for £228,000. In other words, the local authority provided a site which has increased in value to such a degree that the person to whom I spoke could become quite wealthy if he decided to sell his house.
I have no intention of discussing housing co-operatives in depth because one of the regulations governing their establishment stated that if a house was built the owner could sell it immediately. I am not sure if that regulation remains in force but it was in force in 1969 when I benefited from being a member of a co-operative.
If a developer decides to build 100 houses, 80 units for normal sale and 20 for social housing, the rules and regulations state that each house must meet the same standards of quality and I am sure every local authority will ensure that such standards are met. In that context, let us consider the case of a person with an income of £30,000 who decides that, with a good beneficiary mortgage and low interest rates, he or she can afford to purchase a house worth £150,000. When they move in they discover that the house next door is designated as socially affordable and it was bought for £80,000 or £90,000 despite the fact that the owner's earnings are only £2,000 to £3,000 less than theirs. That would not sit well with the person who paid the full price who might ask why they should not reduce their income in order to qualify for social housing. If they did so, they would become a net beneficiary in the future when, after the agreed term, they would be entitled to sell the house. That is one of the difficulties which arises in respect of this section.
Developers sometimes have a tendency to inflate house prices and exaggerate the costs they incur. They have now threatened to increase the price of houses built for normal sale in order to cover the cost of selling 20 per cent of the land on which they are developing back to local authorities at agricultural prices. While they may not increase prices to the levels reported in the newspapers, etc., there is an opportunity for them to do so.
For these reasons, particularly the question of constitutionality and a number of others, I am concerned that the section will not work, that the Bill might prove to be too convoluted and cumbersome and that it will not achieve its aim. I suggest we adopt the proposals put forward by Senator Costello which are simpler, easier to understand and less convoluted than those contained in the Bill.
On a radio programme last week, when asked why local authorities sold their land banks, the Minister of State at the Department of Environment and Local Government, Deputy Molloy, replied that he did not know. To find an answer he should cast his mind back to 1977 when, as a member of the then Government, he abolished rates on houses, an action which resulted in local authorities finding themselves strapped for cash. This was one of the major reasons they sold their land banks. They often sold their land in order that community halls or other facilities could be built, but the main reason was that they had no alternative source of funding. That is why we have arrived at the current impasse.
I hope the provision succeeds but I fear it will prove unworkable and unconstitutional.
The provisions in section 82 are quite radical. However, the mere fact that they have received a great deal of support in the House is indicative of the need to tackle the problem of social inclusion in addition to ensuring that the largest number of people possible can afford to buy houses. I share some of Senator Coogan's concerns because a great deal of builders' and developers' money is riding on the implementation of these provisions. These people are doing exceedingly well at present and, apart from any pitfalls the section may contain, they may have been advised to delay the implementation because doing so might prove beneficial. In my opinion the Minister could introduce a number of measures which developers and others might consider before embarking on such a course of action.
I suggested previously that, given the levels of profit involved, it would not be beyond him to introduce a special levy on house building and house sales. In that context, any property above a reasonable value would attract a levy of 50 per cent. A rising scale could then be used so that for every additional £10,000 on the value of a property, the levy would increase incrementally to 90 per cent. The money this would yield could then be used as a fund to help local authorities tackle the problem of social inclusion.
The construction industry is probably the greatest beneficiary of our booming economy. I do not begrudge those involved in the industry their success because for many decades they operated on very low margins. However, housing does not only involve economic issues, it involves social and other issues and it must be dealt with in a way which ensures that the public good, not the interests of a particular segment of the commercial market, predominates. I hope people will reflect before embarking on the type of challenge to which Senator Coogan referred.
I have no difficulty with people buying local authority houses or participating in housing co-operatives and subsequently gaining reward from being a beneficiary. Republicanism involves helping people to succeed in life and providing them with equal opportunities. Where this happens, we should applaud it rather than decry it. The more people we encourage to exercise their flair, imagination and ambition, the more our country and economy will prosper.
We do not want this discussion to develop into a Second Stage debate. However, we are discussing an important principle, namely, whether this desirable and radical proposal is practical and whether it will prove workable in both the long and short terms. It is extremely beneficial on two grounds. First, it will provide a long-term solution to our housing needs and we will not experience crises in the future. Ironically, the only local authority that will not benefit from it very easily, as an individual local authority, is my local authority, Dublin Corporation, because of the shortage of building land. We can only deal with that in the greater Dublin context.
The second benefit, to which Senator Walsh referred, is that it is a very useful instrument to tackle social exclusion. That is very important especially now as we are developing into a very prosperous society because there would be greater pressures to build up a two-tier society, which we have experienced in the past. One can see the pressures currently. It is important that we can build it into our legislative proposals so it is part of our policy on the development of this country. This legislation would do more than many other policy measures that might be introduced to effect that.
It will be argued that it might be unconstitutional. Ironically, the Minister rejected my proposed amendments on fast-tracking this measure on the grounds that his amendment was stronger on constitutional safeguards and while my measure might be better when it comes to expedite it, his might provide a better constitutional safeguard, with which I agree.
On alleged discrimination – there is discrimination countrywide. Senator Coogan said that some local authorities will take the full 20 per cent, others will not need it. There is greater density in one local authority than in another. As it stands, in terms of the way the building takes place and the density of the building, one could argue that a builder in Dublin would get a much greater density. On current height restrictions, currently applications for Smithfield involve 24 storeys, and some received by the Docklands Development Authority involve 27 storeys. This is an area of benefit to the builder due to the extra profits they are likely to make. Overall, this is in the common good and the public interest. That is the overriding feature of the Constitution and any challenge will reflect that. If that was not reflected in any constitutional case taken, then let the constitution be changed.
During this debate I have acknowledged the support for Part V and various sections of it. I ask Senator Coogan to reconsider his position on behalf of his party. With respect to the Senator, he cannot say that he supports our aims in Part V and then remove the only means we have in this section of attaining them. Section 2 is the linchpin of Part V. It provides a means of ensuring the aspirations of the development plans and that the housing strategies are achieved. Without section 82 we might as well scrap all of Part V. That is the effect of the Senator's amendment. I ask him to reconsider. How can one deliver housing on affordable terms to low or middle income households unless land costs are kept down? It is not possible. Unless this is put in place, housing will remain unaffordable for many people and prices will continue to increase because of exorbitant site prices and so on. Sites are not the only cost involved but if we do not do this, it makes a joke of the whole Bill.
We can talk about the rights of individuals and society and the common good but we should never lose sight of the fact that a public body, that is the local authority, makes millionaires of people overnight simply by drawing a line on a map and rezoning a piece of property. That person, whether a developer or landowner, is made very wealthy by the actions of State, via the local authorities. There must be some moral responsibility held by people who receive windfalls from the State in that way to give something back. As the Senator knows, I am certain that this is constitutional because it meets the criteria for being fair, proportional and equitable but we will not decide that, the Supreme Court may decide it. I am advised that it is constitutional and I am satisfied that it is. As Senator Costello said, if the Supreme Court rules that the Constitution does not allow us as legislators to make decisions here that are clearly for the common good, that everybody in this House and in the country believes are right to ensure that people have a roof over their head, then I agree with Senator Costello that there is something wrong with the Constitution and we should do something about it, but this may not arise.
Senator Coogan mentioned Article 43 of the Constitution. There are other sections in the Constitution, adjuncts to Article 43 being one of them, which refer to the common good, and under the Constitution, the right to property can be regulated by law. That is what we are doing. It is why Part V is so detailed and complex, as the Senator said, but it is complex because we need to be seen to be fair to everybody involved. We have a duty as legislators to provide for those who cannot provide for themselves. We have a duty for social order, equity and so on, but this must be balanced against the rights to private property. We have done that in this Bill. I respect the support I have received and I ask Fine Gael not to call a division on this issue. It would be a severe embarrassment to the party at a later stage if they are seen to be opposing the only section that would provide the means by which social and affordable housing can be provided. I ask them to consider that before they call a division on this.
The Minister has cited Article 43.2.2 which relates to the common good. If there is to be a decision on the question of constitutionality, it would be on Article 2.1v. Article 2.2. However, that is for another day and not for us. I only raise it in the context that it may be challenged and as such we will not know where we stand on this Bill. There are a number of things I wish to examine before Report Stage and that is why it is critical to tease this out. I will set aside my opposition to sections 82, 83, 84, 85 and part of 86 and examine it again on Report Stage. There are a number of minor issues outside the constitutionality question which may cause a problem.
I am willing to put them aside and examine them again on Report Stage provided, of course, it is not taken immediately. We want to examine this pivotal section, the most important aspect of the legislation. Much of the rest of the Bill consolidates older legislation. I have a number of questions regarding the section for Report Stage.
Question put and agreed to.
Sitting suspended at 13.40 and resumed at 14.25.
SECTION 83.
Government amendment No. 255a:
In page 90, subsection (3), between line 20 and 21, to insert the following new paragraph:
“(c)the incomes or other financial circumstances of eligible persons (and priority may be accorded to eligible persons whose income level is lower than that of other eligible persons);”.
A new paragraph (c) to subsection (3) has been inserted to ensure that a planning authority has power to take incomes and other financial resources of both the main and the subsidiary earner into account in determining priorities for the allocation of affordable housing. It is important to ensure that in prioritising eligible persons the local authority would be able to give preference to those on lower incomes as having a greater entitlement to an affordable house.
Amendment agreed to.
Amendment No. 256 not moved.
Government amendment No. a256a:
In page 90, subsection (6), line 40, to delete "housing" and substitute "houses".
This is a technical amendment and merely replaces "housing" with "houses" to match the language used elsewhere in the Part.
Amendment agreed to.
Section 83, as amended, agreed to.
SECTION 84.
Acting Chairman (Mr. Kiely)
Government amendments Nos. b256a, 256a, 256b, a256c and b256c are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. b256a:
In page 91, subsection (3)(a), line 12, to delete "paragraph (b)" and substitute "paragraphs (b) and (c)".
The original text provided that where the purchaser sells the house within ten years he or she would be required to pay back to the local authority an amount equivalent to the local authority's equity in the property, that is, a percentage represented by the difference between the affordable price paid and the market value at the time of sale. That was abated by 10 per cent for ten years. Many of the comments on the Bill considered this to be an over-generous arrangement. On reconsideration, therefore, I now propose a full clawback on the local authority's equity on any sale within the first ten years – as suggested by some Members on Second Stage – and that the local authority's equity would then be abated at a rate of 10 per cent per year between the tenth and the 20th year. Therefore, after 20 years occupation, rather than ten as heretofore, the clawback would disappear. This is probably a more appropriate level of clawback and fits in with the usual mortgage term of 20 years. It is also in line with the amendment put forward by Senator Henry. Subsection (3)(c) is a new provision and provides that if house prices fall the clawback would not operate in a way that would result in the seller being left with a lesser amount than he or she paid at the outset. Members will agree that that is only fair.
In paragraph (d) I have provided that in calculating the amount of the clawback, due allowance will be made for any material improvement made to the House. For example, if a householder builds an extension to the house the value of this will be deducted from the sale price before calculating the sale price on which the clawback is assessed. Improvement is defined to include extending, enlarging, repairing and converting, but it excludes decorating. The amendments to subsection (4) tidy the draft and contain no change of substance.
I thank the Minister for taking these amendments on board. The reason for including them is to prevent opportunistic profit taking. I know that is not the intention of the Bill.
I take seriously Senator Coogan's remarks about these sections being subject to constitutional challenge. However, sometimes we incorrectly second guess constitutional challenges. For example, Senator O'Toole and I were sure that the Employment Equality Bill would fall on the grounds of religious discrimination, yet it fell on grounds which are virtually the preserve of the planning laws, namely that it put too much of an imposition on small employers to make access to their premises available to disabled people. It is sometimes hard to read the mind of the Supreme Court and we must wait to see what happens.
I was very influenced by the Dublin docklands affordable housing scheme, which contains similar kinds of restrictions. This is a sensible provision because ten years is not a long period. I accept that people move around the country and so on, but these factors must be considered when they buy into what is a very generous scheme.
On the question of improvements to the house, the Minister has excluded decoration or any improvements carried out on the land, including the construction of a house. I understand why that should apply where a second house is built. However, would the construction of a garage be taken into account? A garden shed is a small matter, but a garage could be substantial.
I understand the reason for this amendment. It is reasonably generous, although the person who buys the affordable house is only saving the difference between the market value of the site, which has escalated considerably in recent times, and, say, the agricultural value.
That could be substantial.
That is correct. It could perhaps mean £15,000 in a rural area. Apparently statistics indicate that the average person changes house three times in a lifetime. In view of this a period of 20 years is a little long and perhaps the Minister could reconsider that for Report Stage. I would have suggested a ten year discount from the end of year five.
Or ten to 15 years.
Something like that. I do not have a fundamental disagreement with the amendment because the principle is right, but perhaps it could be looked at again for Report Stage.
Part of the aim of this section is to encourage community stability, the decline of which is one of the most regrettable developments in the country. We should look carefully at what has happened elsewhere, especially in America, and note that other European countries are also trying to encourage community stability. It is desirable that people should be flexible and available to move around the country to various jobs, but undoubtedly community life suffers greatly once there is not a certain amount of community stability.
The Bill is important in this respect because it will give those who are the bedrock of communities a chance to stay where their parents and grandparents live. What has been described as the gentrification of areas such as Ringsend over the past number of years is an example. It is no joke to the people whose parents and grandparents have lived there for years to find that houses around the corner which perhaps ten years ago would have sold for £30,000, are now selling for £170,000 to £200,000.
A 20 year provision is too long, especially in the case of young couples who may wish to move after ten years. It could mean that the scheme would not be fully utilised.
There is no question of forbidding people to sell their houses. They can be sold immediately or after a couple of years. The purpose of the amendment is to ensure that they cannot make a huge profit on the sale by cashing in on the scheme. If it is not handled carefully people could be asked by others to apply and move on after ten years, which is not a long period of time in inner city areas. We heard earlier about professional objectors. We could have professional purchasers if we are not careful. It is not a question of tying anybody into a dwelling – the provision does not prevent resales but it does prevent the making of huge profits.
I agree with Senator Henry on the need for community stability. However, a point is reached where families find that a smaller house would suffice for their needs. We have encountered this in our local authority schemes. There is a fine balance here because this may become a disincentive for a family to move on when the children have moved out. Overall it could mean that the best use is not being made of the housing stock.
On Senator Coogan's point about garages, the value of work there would be taken into account.
Even if it is separate?
Yes. We drafted the Bill with the idea of making the scheme apply for ten years with no clawback at the end of year ten. I was surprised at the number of submissions and comments we received to the effect that this period was too short. In common with others, this change was made in response to a huge number of suggestions for amendments to this section. I was surprised at the number of people who suggested that the initial provision was much too generous. On that basis, and on the basis that the docklands scheme will operate over a 20 year period, we have proceeded with this amendment. No matter what one does with a scheme of this kind, one has to make a call in trying to get the right balance.
The element of community stabilisation in the provision is very important. Nobody is prevented from selling their house, but we are tying to prevent people from making exorbitant profits. I see the relevance of Senator O'Brien's point with regard to rural communities. The period may be too long. However, the housing crisis is most acute in city areas. I had an opportunity yesterday or the day before to meet with some of the people from Eastwall who are facing the problem of not being able to afford houses in their own community and I do not want to contribute to or exacerbate that. We should not have an attitude that "outsiders" should not be allowed to live in these communities as it is good for the communities but it is vitally important that there should be a mechanism to encourage people to stay there. As I explained to the group I met, it is not easy to say the sites or affordable or social housing in Eastwall should only be available to people living there, but we will try to facilitate them. It is important that a basic community fabric should remain and that "indigenous" people have a chance of staying in their own communities.
On balance, we probably have this right but in years to come it may need to be addressed by my successor. At this stage, it is better to err on the side of caution than live to regret it. If this condition is not inserted I can imagine the headlines in four or five years' time that people are moving out and making huge profits.
I am not surprised the Minister has received a number of representations on this issue. The docklands authority includes some members of the local community and they did not oppose the 20 year provision because they have seen what has happened in local areas when local authority houses were built. When the houses were sold to the tenants nobody could have envisaged the rise in house prices – there was no clawback, which was a hot political issue. One such house was sold recently in my area for more than £200,000. Tenants are willing to sell these houses to the local authority but the local authority cannot afford to buy them because of the high prices. That situation should not be allowed to recur. That is the reason the Minister is receiving such representations. Local people want to close that gap.
I deliberately used the word "generous" in respect of this scheme. It is good. There are plenty of sharks who would be only too delighted to try to cash in if they got as much as a quarter of an opportunity. I would rather see the Minister taking a tough line now and worry about it down the road – please God I might be around to keep an eye on it. It is better to do this now and see how it works. If it proves to be appalling for people in ten or 20 years' time it can be changed.
Amendment agreed to.
Government amendment No. 256a:
In page 91, subsection (3)(a), line 14, to delete "10 years" and substitute "20 years".
Amendment agreed to.
Government amendment No. 256b:
In page 91, subsection (3)(b), line 28, after "year" to insert "after the 10th year"
Amendment agreed to.
Government amendment No. a256c:
In page 91, subsection (3), between lines 31 and 32, to insert the following new paragraphs:
"(c)Where the amount payable under paragraph (a) would reduce the proceeds of the sale (disregarding solicitor and estate agent's fees and costs) below the price actually paid, the amount payable shall be reduced to the extent necessary to avoid that result.
(d)(i)In calculating the amount payable under paragraph (a), due allowance shall be made for any material improvements made by the person to whom the house or land was sold.
(ii)For the purpose of this paragraph, ‘material improvements' means improvements made to the house (whether for the purpose of extending, enlarging, repairing or converting the house), but does not include decoration, or any improvements carried out on the land including the construction of a house.".
Acting Chairman
I wish to point out that the words "material improvements" in this amendment should be in single quotes.
Amendment agreed to.
Government amendment No. b256c:
In page 91, lines 32 to 37, to delete subsection (4) and substitute the following new subsection:
"(4)Any moneys accruing to a planning authority arising out of the resale of any house or land, subject to terms and conditions in accordance with subsection (1), shall be paid into the separate account referred to in section 82(11) and shall be subject to the other requirements of that subsection.".
Amendment agreed to.
Section 84, as amended, agreed to.
SECTION 85.
Government amendment No. c256c:
In page 91, subsection (1)(a), line 42, to delete "targets" and substitute "guidelines".
This is a technical amendment. It substitutes "guidelines" for "targets" and does not entail an amendment of substance.
Amendment agreed to.
Section 85, as amended, agreed to.
SECTION 86.
Amendment No. 256c not moved.
Government amendment No. 256d:
In page 92, lines 18 and 19, to delete subsection (2).
Amendment agreed to.
Section 86, as amended, agreed to.
Section 87 agreed to.
SECTION 88.
Acting Chairman
Amendment No. 257 is in the name of Senator Norris, amendment No. 272 is related and may be discussed together by agreement.
I move amendment No. 257:
In page 92, lines 41 and 42, and in page 93, line 1, to delete "or of an employee of the Board or of a person whose services are availed of by the Board by virtue of section 107,".
This amendment involves the deletion of the words "an employee of the Board or of a person whose services are availed of by the Board by virtue of section 107". This relates to a person who is authorised by the board to act on its behalf. This person may become as important as the chairperson of the board or another member and a distinction should be made. The matter of applying the seal of the board is serious. It would be wiser, considering the board has a membership of 11 or 12 people, to provide that at least one member of the board should be available to apply the seal.
I confirm that in the case of formal board decisions on appeals and referrals, the seal of the board is always affixed by order and is authenticated by a board member. This section allows for day-to-day operations and so on to be authenticated by people other than members of the board who may not always be available. A board member is always involved in appeals and referrals.
I take it that board members are paid. It might be no harm if they made themselves available more often rather than feeling that membership is a sinecure and they merely have to turn up now and then for board meetings. I realise that anything that goes to An Bord Pleanála is serious. Will the Minister look at this again before Report Stage considering the amendment has been tabled by Senator Norris who asked me to take it?
If there is a paid board membership of 12 people it should not be beyond its powers for one of them to be available on a daily basis, or even twice a week, to put the seal on various documents.
I will have to take a further look at it. It is not that people are not always available but that, as I said earlier, members of the board are working above and beyond the call of duty at present. We do not want board members who are doing very important work on appeals and referrals to be bothered by having to authenticate seals and so on for ordinary day-to-day transactions which may not necessarily be directly related to an appeal or a referral. It is usual in organisations that things need to be signed and that the seal of the board is affixed and authenticated by a board member but in some cases it is not required.
Trouble often ensues in such matters – it is like signing one half of a blank cheque. How many documents per day does the seal have to be applied to in respect of An Bord Pleanála? Would it be a couple of hundred per day?
There are 5,000 appeals per year and whatever else might arise from that.
I will withdraw the amendment with leave to re-introduce on Report Stage.
Amendment, by leave, withdrawn.
Section 88 agreed to.
SECTION 89.
Acting Chairman
Amendment No. 258 is in the name of Senator Norris. Amendments Nos. 259, 261 and 266 are related and may be discussed together.
I move amendment No. 258:
I leathanach 93, fo-alt (1), líne 10, "6", a scrisoadh agus "7" a chur ina ionad.
This is to give adequate standing to a great concern of Senator Norris, that is, the Irish language. I would suggest to the Minister that these amendments might be important to make sure the first national language is treated with suitable importance in the Bill.
My amendment No. 263 goes a good way towards the point that is being made. It would provide that the President of Comhdháil Náisiúnta na Gaeilge will be on the nominating committee of the chairperson of An Bord Pleanála. Amendment No. 263 will include Irish language organisations among the bodies which can select persons to one of the existing panels for nomination to the board. That particular amendment will meet at least some of the concerns of the amendment.
Senator Coogan's points are adequately covered by the existing provisions which allow panels to be drawn up with representatives from bodies interested in environmental matters and from bodies representative of local government. This last panel is a new one and I expect at least some of those bodies mentioned in Senator Coogan's amendment to be included in the regulations among the prescribed bodies. We are back to the point about perhaps dealing flexibly with this in regulations rather than it in law.
The other amendment requests that the environment panel should also contain bodies concerned with the national heritage. That is a specific term which is used in the national heritage council legislation. It is not included in planning law and is not appropriate here. The existing term "environment" in its broadest sense is wide enough to cover the same organisations as the term "national heritage" encompasses. I am prepared to go some way to meeting what is being sought here. I am prepared, in regulations, to make the Heritage Council a nominating body for the selection of candidates to the board under the panel in section 91(1)(b). That should suffice to meet the concerns of Senators.
I am satisfied that the organisations referred to in my amendment No. 266 that is, the Association of Municipal Authorities of Ireland, the General Council of Councils and the Local Authorities Members Association, would have a role to play. They have great experience and knowledge in this area. I am satisfied they will come under the panel referred to in section 91(1)(d). I am also satisfied that those referred to in amendment No. 265 will come under the panel referred to in section 91(1)(b). If they can be included, I would accept that.
The purpose of my other amendment was to ensure that the board would be large enough. I was seeking an increase in the numbers because they have so much extra work. These additional bodies which I mentioned would perhaps make up those additional numbers. That was the only purpose behind that amendment.
I commend Senator Coogan on tabling that amendment. As he rightly said, the Minister has taken that into account in section 91(1)(d). I hope those representative associations of local government will be proactive in putting forward suitable appointees to the board.
I express my satisfaction at the Minister's reply on amendment No. 262. He said that he has given recognition to the Heritage Council, which does great work. I have been in touch with it on many occasions as a member of the national monuments committee of Galway County Council. I welcome the recognition given by the Minister to the Irish language in amendment No. 263. The promotion of the Irish language because is so important in the history of this country.
Like my colleague, who is a former member of the General Council of County Councils, I am pleased that body is being recognised. I know that Senators Walsh and Coogan would be pleased about this and I think we all would be also. In general, satisfaction would be the key word in my comments on these particular amendments.
Amendment, by leave, withdrawn.
Section 89 agreed to.
SECTION 90.
Amendment No. 259 not moved.
I move amendment No. 260:
In page 96, subsection (15), lines 26 and 27, after "Government" to insert "with the sanction of the committee".
I tabled this amendment because I felt the committee might think that the chairperson was doing an extremely good job and the Government, for some reason of its own, might decide to move the person on, perhaps because the person was too independent, although the Executive will not have anything like the involvement in planning which it had in the past. It might be a good idea to insert "with the sanction of the committee".
As a matter of principle, I could not go along with such an amendment under any circumstances. If the Government decides to remove the chairperson for reasons related to the effective performance of his or her duties or the duties of the board, it must give its reasons for doing so to both Houses of the Oireachtas. The only body to which the Government should be accountable is the Oireachtas, not a committee set up under an Act of the Oireachtas. I cannot accept the amendment.
Amendment, by leave, withdrawn.
Section 90 agreed to.
SECTION 91.
Amendment Nos. 261 and 262 not moved.
Government amendment No. 263:
In page 97, subsection (1)(e), line 10, after "inclusion" to insert "or the promotion of the Irish language".
Amendment agreed to.
Amendments Nos. 264 to 266, inclusive, not moved.
Section 91, as amended, agreed to.
Section 92 agreed to.
SECTION 93.
I move amendment No. 267:
In page 99, subsection (1), line 33, to delete "3" and substitute "5".
This is to increase to five the number of people needed for a quorum.
We are trying in this Bill to ensure the efficient working and streamlining of An Bord Pleanála and, indeed, all the planning procedures. One of the proposals, to which we will come shortly, is to allow the board by law to work in divisions. There may be a division working on infrastructural development and another one on housing. It is in the interests of the efficient working of the board. To change the quorum for these divisions from three to five would act contrary to that desire to streamline the procedure. It would obviously be a waste of resources as well as being very inefficient. In light of the further proposals contained in the Bill I would ask the Senator to withdraw the amendment.
I will withdraw it given that it is Senator Norris's amendment. He may have more to say about it. However, three is a very small number for a quorum and there seems to be no limit to the amount of notice that has to be given to hold a meeting.
Amendment, by leave, withdrawn.
Question proposed: "That section 93 stand part of the Bill."
The Minister mentioned earlier the efficient working of the board. I understand the board can deal with planning applications as they come and they are not prioritised, but it is necessary to do so. For instance, the ESB currently has two applications for new plants and urgency should be given to such applications in the public interest. If applications are taken as they come the most important ones could be left behind and delayed. The Minister should intervene to encourage the board to prioritise applications and deal with the most urgent ones first.
Some applications may be for quite small, uncomplicated and fairly straightforward developments. I do not know how the structure works, but perhaps there could be a small section to deal with those kinds of applications. Major developments that have implications could be dealt with by a more specialist group within the section, although I am not sure if that is being done at present. That point might be examined. When applications come in there should be some way of screening and assessing the nature of the objections. There is an onus on us to try to eliminate the extortion of money from developers. That often occurs on the basis that the objection, by running its course, will be sufficiently inconvenient to force a developer to meet a request for funds in order to have the application withdrawn. We should try to eliminate that by tackling it in every possible way.
The board can prioritise matters and, in a general sense, we can indicate to the board what it should prioritise. At the moment, appeals that have major implications for employment or for building projects of over 50 houses are being given priority by An Bord Pleanála. A difficulty arises if an application is before the board, such as the ones concerning power stations. Under what was section 73, the Minister for the Environment and Local Government is precluded from interfering in any way in an individual application before the board. The board has regard, however, to national priorities, specifically the two I have mentioned. I will not comment on current applications and it would not be right for me to do so, but applications can be prioritised. There is no specialist group, as such, within the board at the moment, although we are trying to allow the board to work in divisions. The practical effect of this would be that certain people who are specialised in housing would deal with that sector while others would deal with other aspects.
As regards screening objections, in the past the board has been a little too careful with the power it has concerning vexatious appeals. I would like to see the board using its discretion a bit more on that matter. If it is challenged and goes to the courts, at least it will establish what the board has to do. However, it cannot just do that on a willy-nilly basis; it must have a reasonable case for believing that something is vexatious. Senator Walsh has already made the point that nowadays, by obtaining a book on planning or development law, people can find some kind of organisation—
An umbrella body.
—or wording that will appear to give an appeal a certain validity.
Question put and agreed to.
Section 94 agreed to.
SECTION 95.
Acting Chairman
Amendments Nos. 268, 269 and 271 are related and may be discussed together.
I move amendment No. 268:
In page 100, between lines 31 and 32, to insert the following new subsection:
"(2)The Chairperson shall assign a member of the Board to review the file on every planning appeal, referral or other planning function of the Board and it shall be the duty of that Board member to prepare a report having read the full file particularly the inspector's report. This report shall summarise the planning issues and contain a recommendation for decision by the entire Board or any 3 members of the Board. After a decision on a planning matter is made the report and recommendation of the individual Board members shall be attached to the file and made available for public inspection.".
This amendment is aimed at encouraging openness in the workings of the board. It desires the chairperson to assign work to various members of the board to ensure that all inspectors' reports are read by members of the board, and to have their comments placed on the file which will be made available to the public.
Amendment No. 269 seeks to ensure that "the chairperson shall not request any inspector or a board member who has been requested to make a report and recommendation to the board to alter such a report or recommendation". The file should go straight to the board exactly as it is.
This amendment would require a board member assigned to deal with a planning appeal to prepare a written report on the appeal for submission to the board, and that would be attached to the file. However, the files on practically all appeals requiring a formal board decision contain reports, including recommendations, from the inspectors. The file, including the report, is examined by a board member who presents the file to other members of the board. In light of experience there is no need for a further report from the board member presenting the file summarising the planning issues and containing a further recommendation for decision by the board. The procedure outlined in the amendment would be very bureaucratic and it is unnecessarily cumbersome. I ask the Senator to withdraw the amendment.
Amendment No. 269 provides that a board member should not request an inspector to alter a report or recommendation. It is in line with existing practice that a board member does not request an inspector to change his or her recommendations, as such. This is obviously seen in cases where the board's decision does not follow the inspector's recommendation. I see no need for this amendment. In exceptional cases it might be necessary to alter a draft report in consultation with the inspector. For example, a report may inadvertently contain a factual error or even a sentence which is seriously indiscreet. That is a different thing, however, to altering a recommendation. It is important that these corrections can still be pointed out and dealt with. Reports that are being prepared for Ministers and Departments often contain matters that are clearly incorrect and so an opportunity is given for people to correct them.
Amendment No. 271 is similar to that regarding the alteration of an inspector's report and would require that at least three board members would have read the report before a decision is made. I am satisfied that the present arrangements work satisfactorily and I do not wish to accept this amendment either. Approximately 10 per cent of inspectors' reports are not accepted. That is an indication that people are being allowed to express their views on reports and that no pressure is being put on them. The amendment seems to stem from a fear that someone on the board may bully inspectors into changing reports. There is clearly no evidence to support that. Inspectors are independent. The board, which has the overall responsibility for making decisions, should make them on the basis of the reports but should not slavishly follow them. Other matters must be taken into account.
Amendment, by leave, withdrawn.
Amendment No. 269 not moved.
Section 95 agreed to.
SECTION 96.
Acting Chairman
Amendments Nos. 270 and 274a are related and may be discussed together by agreement.
I move amendment No. 270:
In page 100 subsection (1), line 45, after "function." to insert "The Board shall arrange to keep a written record of all of its decisions. This minute shall record the names of those present and a record of all votes on any decisions. A board member who disagrees with the content of any decision shall be entitled to supply a note of his or her reasons to the Chairperson of the Board and the Minister and any such note shall be available for public inspection in the relevant appeal or referral file.".
This is to ensure the board has written records of its decisions, if there were votes on the decisions the way they were made and that these should be available for public inspection in the event of an appeal.
I raised this matter on Second Stage on behalf of the members of the Mid-East Regional Authority. They were overwhelmingly of the view that reasons must be stated. Amendment No. 274a appears to require merely a record of a decision and not the reasons for it. I assume parties to an appeal are told why a decision is made. I accept the Minister's point that the board should have the right to overrule the inspector. I would not remove that right. However, the case of Arthurstown dump in Kill, County Kildare, for Dublin Corporation was controversial. In that case the inspector made a recommendation which was contrary to the subsequent ruling of the board. I do not object to such a ruling being made but there must be public access to the reason for it. Is the written record of its decision enough? Does it cover an instance such as the one I have cited? I cannot recall if the board came within the ambit of the Freedom of Information Act in that case. If information is accessible under freedom of information legislation that is satisfactory but it is important that people can find out why decisions are arrived at.
Amendment No. 270 would require a written record of all decisions of the board, including who was present and who voted for and against a particular proposal. It would allow a board member who disagreed with a decision to write to the chairperson and the Minister setting out why he or she disagreed with the decision. I have tabled amendment No. 274a which would require the recording of those present at a meeting and the numbers voting for and against each decision. I am opposed to naming those who vote each way. I do not think that would add anything substantial to our knowledge. It is not important for us to know who voted one way or the other and it might leave members of the board open to inducements and pressures. I cannot accept that members should be encouraged to write to the chairperson and I certainly would not encourage them to write to the Minister. I am not involved in these matters and I intend to remain so. I will be doing a favour for my successors in ensuring they do the same. The board acts as a collective decision making body and these two aspects of the Senator's amendment would encourage the breaking up of collective responsibility. Being a member of the Cabinet, I know how important that is. I cannot accept that this amendment is a good idea.
Senator Dardis may recall that subsection 39(9) states that a decision under that section or section 36 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed on the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of that subsection. If the board has an inspector's report which recommends on this and the board decides otherwise, this should be made clear by stating the reasons and considerations on which the decision was made. I think the Senator Dardis's point is met.
Amendment, by leave, withdrawn.
Amendments Nos. 271 and 272 not moved.
Acting Chairman
Amendments Nos. 272a and 273 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 272a:
In page 101, subsection (6)(b), line 29, after "determine" to insert "points of detail relating to a decision on".
This amendment is moved in response to amendment No. 273 which provides that a board member should only be able to implement the detail of a board's decision without further authorisation. My amendment will meet the point raised by the Senators and I understand this is in line with current practice.
Amendment agreed to.
Amendment No. 273 not moved.
I move amendment No. 274:
In page 101, between lines 36 and 37 to insert the following new subsection:
"(7)The Board shall keep minutes of all decisions it makes and should it make a decision on any planning appeal, reference or referral or on any other planning matter where it disagrees with the recommendations of its inspector, it shall state in a file note to be available for public inspection the reasons why in a planning context it has overruled its inspector's recommendation.".
This amendment is very similar to amendment No. 270. I know the Minister is not in favour of keeping a file which would be available. I can understand the Minister's attitude and I might agree with him if I were a board member myself. I withdraw the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 274a:
In page 101, between lines 36 and 37, to insert the following new subsection:
"(7)The Board shall arrange to keep a written record of all its decisions including the names of those present at a meeting of the Board the number of those persons who vote for or against those decisions.".
Amendment agreed to.
Section 96, as amended, agreed to.
SECTION 97.
Acting Chairman
Amendments Nos. 275a and 276 are related. Amendment No. 276a is an alter native to amendment No. 276 and all may be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 275:
In page 101, line 39, after "division" to insert "(which shall consist of not less than 3 Board members)".
The Minister said he is anxious to set up divisions within An Bord Pleanála to enable it to operate more efficiently. Perhaps this amendment would assist in that regard.
These amendments would require that a division of the board would consist of at least three members, and that the chairperson at any meeting could refer an individual case to the full board. In response to these amendments, I tabled amendment No. 276a to meet the principle behind these points.
The main difference is that my amendment will make it clear that a matter can be transferred to all available members of the board. This is to ensure a decision is not held up by the absence of any one board member. The Bill already provides for a quorum of three members to hold a meeting. The amendment merely clarifies that this also applies to divisions of the board.
I will withdraw my amendment, given that the Minister's seems to cover this matter.
Amendment, by leave, withdrawn.
Amendment No. 276 not moved.
Government amendment No. 276a:
In page 101, after line 44, to insert the following new subsections:
"(2)A division of the Board shall consist of not less than 3 members of the Board.
(3)The chairperson, or in his or her absence, a person acting as chairperson of a meeting of a division of the Board, may at any stage before a decision is made, transfer the consideration of any appeal or referral from the division to a meeting of all available members of the Board, where the chairperson considers the appeal or reference to be of particular complexity or significance.".
Amendment agreed to.
Section 97, as amended, agreed to.
Sections 98 to 104, inclusive, agreed to.
SECTION 105.
I move amendment No. 277:
In page 104, subsection (3), line 5, after "determines" to insert "no employee who is one of the Board's inspectors may be disciplined by the Board on the basis that the Board disagrees with any recommendation that inspector may make in any report on any individual appeal, referral or other planning matter to the Board.".
The purpose of this amendment is to ensure that the board's inspectors could not be disciplined in their professional lives by the board because it disagreed with a report they had made.
There is not any need for this amendment because this does not happen in practice. Inserting such a provision would reflect badly on the board. Inspectors hold their employment within the normal terms and conditions. This amendment would not add anything beneficial to the Bill or be very helpful to An Bord Pleanála. I ask the Senator to withdraw it.
Amendment, by leave, withdrawn.
Section 105 agreed to.
Sections 106 to 108, inclusive, agreed to.
SECTION 109.
I move amendment No. 278:
In page 105, subsection (2), line 41, after "relates." to insert "Each report under section 103 shall indicate on what matters the consultant advised the Board. Any reports provided by a consultant to the Board shall be made available for public inspection at the Board's office on the third working day after the relevant decision was made by the Board. Consultant's reports in this context shall also include any legal opinions the Board may have received.".
The purpose of this amendment is to ensure the board has all the relevant advice it might need before making a decision.
There is no need for this amendment. In practice, the reports from consultants engaged by the board are attached to the file on a case. The files are made available for public access once the decision is made. However, legal advice obtained by the board is privileged, in accordance with normal practice. The situation, as it pertains to the planning files in An Bord Pleanála, is met by the Bill as it stands.
Amendment, by leave, withdrawn.
Section 109 agreed to.
Amendment No. 279 not moved.
Section 110 agreed to.
SECTION 111.
Acting Chairman
Amendments Nos. 280 and 281 are related and may be taken together.
I move amendment No. 280:
In page 106, subsection (2)(a), line 4, to delete "18" and substitute "26".
We are flying through these. If you could give me half a minute—
The effect of the amendment would be to increase the time available to the board for making decisions from 18 weeks to 26 weeks.
I thank the Minister for his assistance.
Acting Chairman
He is very co-operative.
The purpose of the amendment is to ensure the board has plenty of time to consider everything.
Inserting this amendment would be inappropriate and contrary to the aim of the Bill, which is to deliver a very efficient planning system. In the past, the board has been able to make up to 98 per cent of its decisions within four months. It has not been able to maintain that level, but the level is picking up again. It fell behind in recent years because of the economic boom but it is now increasing. Some 60 per cent of its decisions in October were made within four months, compared with its lowest point of 40 per cent in May. As a result of a number of decisions we have taken over the past months, that performance will continue to improve very substantially. The improvements were due to increased staffing levels and increased incentives within the board for completing files. That seems to be working extremely well. I hope that percentage will increase substantially over the coming months.
Senator McDonagh's amendment would not allow the board to extend the time period. While we would all like to agree with that proposal, it would not be practical in all cases, some of which become very complicated and can need outside consultants and wider consideration. It would not be a good move to totally shut off any extension. It also would not be practical in all cases. It is the board's aim, and mine, to ensure the highest percentage possible will be dealt with within four months. I am confident that will happen.
I made the case to protect and help the applicant. This may have financial implications, in terms of business deals and accommodation needs. We talk nowadays about the need to expedite decisions, and I welcome what the Minister has just said on that, and the need to be customer friendly. The 18 week period, which is one third of a year, is more than adequate. We spoke in the discussion on amendment No. 165 about 21 days instead of eight weeks. I find it difficult to agree fully with what the Minister said. A great deal can be done within one third of a year. It is a long time for someone to wait and gives people time to make their case. I feel fairly strongly about this amendment because the period provided is sufficiently long, and I am inclined to press it.
The purpose of my amendment was to try to be realistic about time, given that the board has an enormous amount of work to do. However, who am I to quibble about 26 weeks if the Minister reckons that 18 weeks are sufficient? I am, therefore, willing to withdraw my amendment.
I understand perfectly what Senator McDonagh is attempting to do here, which is to give a greater degree of certainty to the applicant about the time he will have to wait. I do not disagree with the principle. However, some of the cases which come before the board are extremely complicated. We mentioned one earlier. I do not want to prejudice any outcome but applications concerning power stations do not arise very often and expertise may have to be sought from outside the board by employing certain consultants or where information needs to be gathered. The Tara Mines application in County Meath was very complicated and may have been the first application for mining in modern times. The expertise might not be readily available to the board and the issues could become very complicated. A strict 18 week deadline would mean that, in the end, the board would not have sufficient time to deal adequately with the application. It would then refuse the application to cover itself and suggest to the applicants that they resubmit. For those reasons it would not be wise to have an absolute cut-off but I respect the principle on which the amendment is tabled.
The Minister is talking about a few exceptional cases. Is it possible to draw up guidelines whereby such cases would be exempted from the time period on particular grounds so that the normal applicant would at least have a response within that time limit?
Subsection 111(2)(b) does not specify that the period has to be longer – it could be shorter. If it was deemed that 18 weeks was too long, the Minister could intervene to tell them to do it more quickly. Eighteen weeks is an objective, not an imperative.
I am a fair minded man and the Minister has made a sufficient case to convince me. He is doing everything in his power to expedite decisions and local authority members are very pleased about that. In the circumstances, and taking the Minister's word, I will withdraw my amendment No. 281.
Up to three or four years ago we were meeting the 18 week objective. Then all hell broke loose with the economic boom and the many resultant applications. As the Bill stands, the Minister has the power to specify a shorter or a particular period for any type of development. However, I would not use that power at present because of the backlog. It is open to the Minister to prescribe the timeframe for particular types of planning classes.
Amendment, by leave, withdrawn.
Amendment No. 281 not moved.
I move amendment No. 282:
In page 106, subsection (3)(a), line 13, after "Board," to insert "unless such further submission is based on information which was not available at the time of the making of the original submissions,".
This is getting confusing. We are not going to extend the length of time to 26 weeks. I understand why that is so as people can often delay further if the length of time is extended. However, if the board does not think it is going to meet its target, it has to start writing to a large number of people. Perhaps I misunderstand the section. I have suggested an additional clause whereby, if more information comes to the board, it would not have to write to people if it was not going to give its decision within the agreed time.
This is not a prescribed period for the board in the sense that it is a strict limit and one has to get permission for extensions in the same way as the eight weeks for local authorities. This is merely an objective. The section begins:
It shall be the duty of the Board to ensure that appeals and referrals are disposed of as expeditiously as may be and, for that purpose, to take all steps as are open to it. . .
It further states that without prejudice to the generality of subsection (1) it shall be an objective to secure every appeal if referral is determined within a period of 18 weeks. It is not the same legal obligation as applies to a local authority to make the decision within eight weeks. It is an objective that is an imperative. It is a target which, at the time, was deemed reasonable and will again be reasonable in light of the new staffing arrangements and procedures in the board. I would be reluctant to extend the period any further as one could end up continuously extending it. The 18 weeks objective is useful. It is also useful to have a degree of flexibility so that it can take longer in particular circumstances. The Minister retains the power to stipulate that decisions should be made within four or eight weeks or whatever for a particular application.
If the board is not going to meet its target date the section stipulates:
. . . the Board shall, by notice in writing served on the parties to the appeal or referral before the expiration of that period, inform those parties of the reasons. . . . . . .
It has to tell all those who have made submissions or observations to the board. That is an enormous amount of work. My amendment suggests that if new information comes to the board, it does not have to get involved in this process of writing to a large number of people. An enormous number of people may have to be written to if the board does not think it is going to meet its target date. Many staff members may be tied up writing to people telling them this when one might have a better chance of meeting that date if the board was not obliged to do so. I know the objective is to give people information and I am in favour of that objective. However, it seems that there is an incredible amount of scribing in this section.
Perhaps an easier way to approach this would be not to impose the obligation on the board to inform people if it is not going to make the 18 week target. That would be a simpler way out of this rather than extending the period. However, I am not sure that such a course of action would meet with universal approval in these days when there is a fixation with transparency, openness and accountability. I will look at this issue but I would not like to give the Senator a false impression. On a personal basis it would help achieve my objective of streamlining the process if the board did not have to notify people it was not going to meet the 18 week deadline. However, many Senators would criticise the Senator and me if we went down that route.
The Minister is right about the friends who would come out of the woodwork. Placing that condition on the board would make it think even more seriously about extending the period than it might otherwise do. I know the objective it to deal with this matter but there must also be a degree of flexibility. When the material for the Arthurstown dump was sent to the Department of the Environment and Local Government there was a pallet load of material outside the steps of the Department. It would have taken several weeks just to read it.
There is a lot of rubbish on pallets.
It probably took a week to get it upstairs. There must be a degree of flexibility in the system.
Amendment, by leave, withdrawn.
Section 111 agreed to.
Amendments Nos. 283 and 284 not moved.
Section 112 agreed to.
SECTION 113.
I move amendment No. 285:
In page 107, paragraph (a), between lines 47 and 48, to insert the following new paragraph:
"(iv) a copy of any submission or observation received during the course of the application prior to the decision of the local planning authority;".
This amendment tries to ensure openness and transparency by making copies of submissions available.
The requirements of the planning appeals process have never required submissions made to the planning authorities to be passed on to the board when dealing with an appeal. This is because in many cases the points made at local authority stage are overtaken by events by the time an appeal gets to the board. Changes will have taken place or conditions may have been put down. The board reviews cases ab initio or right from the start and, therefore, it is up to the appellants and to persons making observations to make their views known to the board at appeal stage, otherwise the board will be lumbered with all sorts of submissions, some relevant and some not. This would not aid an efficient decision making process.
For many years I was not aware that the full file is not sent to the planning appeals board. I discovered this about seven or eight years ago. The public probably do not know that. It should be examined from the local authority's point of view. Perhaps a note to this effect should be placed on the bottom of planning decisions being sent to people. As this amendment suggests, it is important for people to know about the process. We have struck the right balance in the legislation where it states that people should base their appeal on the most up to date information. The board should also only receive an appeal that has been based on the most up to date information.
Is the amendment being pressed?
No, but I, like the Minister, am surprised to hear that not all the relevant documentation from the beginning of the case is sent to the board. Sometimes what is adduced from early submissions may not give the whole flavour of the case. I am sorry to hear that the entire file does not progress through the system.
Amendment, by leave, withdrawn.
Section 113 agreed to.
Section 114 agreed to.
SECTION 115.
Government amendment No. 285a:
In page 108, subsection (1)(a), line 23, after "referral" to insert ", other than a referral under section 82(4)".
Section 82(4) provides that any dispute to an agreement relating to the operation of a housing strategy other than a dispute in relation to the amount of compensation to be made may be referred to An Bord Pleanála. We have spoken about this before. The purpose of this amendment is to specify that the only parties to such a referral to the board will be the local authority or the party or prospective party to an agreement. The content of the agreement is not a land use decision. The land use issues will have been decided in granting the planning permission subject to entering an agreement in relation to the transfer of land. Therefore, it is entirely appropriate that the only parties to a referral to An Bord Pleanála should be the parties to the agreement. At a later stage we will make a consequential amendment to section 2 in order to give a definition of "party to an appeal".
Amendment agreed to.
Section 115, as amended, agreed to.
Sections 116 to 118, inclusive, agreed to.
SECTION 119.
I move amendment No. 286:
In page 111, subsection (3), line 24, after "referral." to insert
"In the event that the Board decides not to hold an oral hearing on a particular appeal or referral it shall refund any oral hearing fee to anybody who requested an oral hearing.".
We are back again to the old fees issue. This is a no foal, no fee matter. People would have paid a lot of money into the system by this stage. Will a person get their money back if they do not get an oral hearing?
The fee is payable for the board's consideration on whether there should be an oral hearing. It is not payable for the hearing itself. On the basis of past experience, the proposed refund of the fee would be likely to lead to a significant increase in the number of requests for oral hearings because people would have nothing to lose by requesting a hearing. It is in the interest of an efficient planning system that appeals should be dealt with by written submissions where possible. As I indicated earlier in the debate, the fee of up to £20 is not meant to discourage people from making a submission to a county council. This charge is to discourage people from requesting oral submissions. Every one would look for one if they did not have to pay to ask for it.
The Senator would like to get her money back on the horse she lost a bet on in Leopardstown.
I withdraw the amendment. Senator Norris will not be pleased but he can take it up on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 287:
In page 111, between lines 24 and 25, to insert the following new subsection:
"(4)The person who requested the hearing shall have a period of one month in which to appeal against this decision to the Minister.".
The aim of my amendment is to allow people make an appeal to the Minister about a decision. I do not know whether this would be allowed.
That was the function of the Minister once but his predecessor got rid of it.
Senator Doyle is correct. Re-introducing the Minister into the appeal system, even in a limited way, is no longer acceptable. The board is an independent appeals body and it is best qualified to decide on the appeals and referrals and whether it needs to hold an oral hearing on complex cases. The people who would support this provision would be the same people who would be down on my head or that of my successor's if I gave a decision which did not suit.
The philosophy of this Bill is to expand the decision making and executive functions of the board while allowing the Minister and the Department of the Environment and Local Government to concentrate on policy. In addition, disregarding the fact that bringing the Minister back into the appeals process is not appropriate, my Department has not been involved in the appeals process since 1977. Therefore, it would not have the expertise to determine appeals of this nature. There is no doubt that were an additional appeals mechanism introduced, everyone would avail of it and that would cause inordinate delays. Even if we disagree on some of these amendments and approach, all of us are committed to streamlining the system and making it more efficient.
I tabled my amendment in the interest of democracy because there are some people who cannot be represented here but want this put forward. I agree with the Minister that it is far better to keep him out of it. I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 119 agreed to.
SECTION 120.
Amendments Nos. 288, 343 and 346 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 288:
I leathanach 111, idir línte 48 agus 49, an fo-alt nua seo a leanas a chur isteach:
"(3)Where an oral hearing relates to a development which is within the Gaeltacht the person conducting the hearing shall:
(a)conduct the hearing through the medium of Irish,
(b)arrange for the provision of translation facilities for the benefit of persons who do not speak or understand Irish."
It is important that it should be possible to conduct a hearing through Irish – I expect they would be. This situation has arisen in other areas, such as the courts, and it has been possible to conduct a hearing through Irish. If we are to take the Irish language seriously, this should be possible. I am sure people could be recruited who could hear the case.
We are discussing three amendments – the first deals with the oral hearings by the board, the second with advertising and the third provides that a planning authority should ensure it has someone who is competent in the medium of Irish and that, within the functional area of a planning authority, it should ensure that all initial contact with Gaeltacht residents shall be in Irish or bilingual form. Although I think these amendments should not have been taken together, if we are to give priority to the Irish language as ár gcéad teanga, it is right that an individual whose céad teanga is Irish should be allowed the facilities provided for them.
Amendment No. 288 would require oral hearings in the Gaeltacht to be conducted through Irish. Amendment No. 343 would require all notices under the Bill to be published and served in bilingual format. Amendment No. 346 would require planning offices to be able to deliver a service through Irish and make special provisions where they serve Gaeltacht areas. De réir mar a thugim, déanann An Bord Pleanála freastail ar aon éileamh a bhíonn ann in aon cás éisteacht i nGaeilge. Tá neart taithí ag oifigí comhairle contae sna Gaeltachtí a bheith ag obair trí mhean na Gaeilge le daoine ón Gaeltacht. In relation to oral hearings, the board's practice is that they can be and are conducted through Irish. Both Irish and English speakers are facilitated. The present practice is generally regarded as satisfactory.
The wider issue of the use of both official languages of the State will be addressed in the Irish language Bill being brought forward by my colleague, the Minister of State, Deputy Ó Cuív. The issues raised by these amendments are better addressed in the context of that Bill rather than in a piecemeal fashion in a planning Bill. On that basis I ask Senators to withdraw their amendments. What is requested is already being met or should be met in another format in the Irish language Bill.
My preference would have been to take the first amendment separately. While the Minister said that An Bord Pleanála "can" have these facilities in place, I would prefer the inclusion of "must". They do their best to facilitate people but I know a person whose native tongue is Irish and demands to be spoken to in Irish did not have the full facilities made available and felt that was inadequate, which is why I am pressing for this amendment separately. The person was not convinced that the official with whom they were dealing understood them clearly and fully. Because of the technical nature of the submission, the official did not pick up on the nuances. The provision of a person with competent Irish is a fair and reasonable request. I would be satisfied if "must" was substituted for "can".
Senator Coogan is right, it would be better to use the word "must". He made a good point. Sometimes native Irish speakers, if forced to speak through English, which they know, do not pick up on the nuances. I have experienced this with elderly patients who were native Irish speakers. Sometimes one could not make oneself clear and having only a cúpla focail was a disadvantage when trying to get a detailed explanation from them. Senator O'Toole is not here so I can say it is a terrible indictment on our education system if there are not enough Irish speakers to do this. Perhaps the Minister will look at this between now and Report Stage. There will be 12 people on the board and a considerable staff – there should be enough people to recruit to conduct an oral hearing in Irish, if that is what people require.
If Senator Dardis was here he would insist they must also be able to speak English.
In deference to Senators, I will look at the provisions in the Courts Bill in relation to witnesses, etc. I accept Senator Coogan's point about someone who does not feel they have had a fair hearing because some of the nuances are missed. I am not sure I will be able to do something before Report Stage. I will try to give an indication on Report Stage, and if I can draft an amendment, it will come back to this House anyway.
I thank the Minister. Perhaps looking at the Courts Bill will help.
Amendment, by leave, withdrawn.
Amendment No. 289. Amendment No. 290 is cognate and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 289:
In page 112, subsection (4), line 4, after "oath" to insert "or affirmation".
It is a pity to include the word "oath" in new legislation because some people – it sounds dreadful – have very little concern about taking oaths and prove afterwards not to have been very truthful. Perhaps the substitution of "affirmation" would be better. For a long time people have thought swearing on a Bible was wrong and it would be better to make an affirmation rather than take an oath. Perhaps the Minister will consider this.
I accept the amendments.
I thank the Minister. A friend of mine before the courts—
The Senator should sit down when she is ahead.
—felt strongly about not taking an oath so she affirmed and the judge asked her if she was a Quaker.
Perhaps the Senator should confine her remarks on each amendment to "Is the Minister accepting this amendment?"
Amendment agreed to.
I move amendment No. 290:
In page 112, subsection (4), line 5, after "oaths" to insert "or affirmations".
Amendment agreed to.
Amendment No. 290a is a Government amendment. Amendment No. 291 is an alternative and both may be discussed together. Is that agreed? Agreed.
Government amendment No. 290a:
In page 113, lines 5 and 6, to delete subsection (8) and substitute the following subsection:
"(8) This section shall not apply to referrals under section 34(5) or 177(2)."
The reference in section 120(8) should be to section 34(5) and not to section36(4). Section 34(5) deals with appeals to the board regarding the implementation of conditions which a planning authority can impose on a grant of planning permission. In this case the board may convene an informal meeting under section 121. My amendment clarifies this which may have caused some of the concerns behind amendment No. 291. I am opposed to that amendment which could mean that the procedures which apply to oral hearings would have to be applied to meetings convened by the board to determine a dispute where there are matters to be agreed between the planning authority and applicant on foot of a planning condition. Meetings are rarely convened in relation to disputes and where they are, they are informal meetings which do not require to be regulated in this manner. Having corrected the reference to section 34(5), I hope Senators will now withdraw amendment No. 291.
Amendment agreed to.
Amendment No. 291 not moved.
Section 120, as amended, agreed to.
Amendment No. 292 not moved.
Section 121 agreed to.
SECTION 122.
Amendments Nos. 293 and 293a are related and may be discussed together by agreement.
I move amendment No. 293:
In page 114, subsection (4), between lines 3 and 4, to insert the following new paragraph:
"(c)Where the Board specifies the content and publication of a newspaper notice it shall also require the applicant to erect a site notice with the same content in order to alert the public that people may make submissions on the proposed development within a specified time period and on payment of the appropriate fee to the Board so as to enable the Board to consider such submissions or observations before it determines the matter.".
My amendment No. 293a is an alternative to amendment No. 293 and extends to a site notice. I understand the board usually requires this measure. Amendment 293a is a response to amendment No. 293 and should meet the concerns expressed in that amendment.
I thank the Minister. I believe his amendment covers the matter.
Amendment, by leave, withdrawn.
Section 122 agreed to.
Sections 123 to 126, inclusive, agreed to.
SECTION 127.
Government amendment No. 293a:
In page 116, subsection (4), line 40, after "given" to insert "at the site or".
Amendment agreed to.
Section 127, as amended, agreed to.
SECTION 128.
I move amendment No. 294:
In page 116, subsection (1), line 44, after "the" where it firstly occurs, to insert "formally published".
This amendment proposes that the policies and objectives of the board should be formally published.
I would feel better responding to this amendment if I knew exactly what it meant. I think it means the amendment would qualify the provision by applying it to formally published policy only. That could be very restrictive. I do not know what "formally published" means. Perhaps the Senator will withdraw the amendment and table it on Report Stage.
Amendment, by leave, withdrawn.
Section 128 agreed to.
SECTION 129.
Amendments Nos. 296, 299 and 300 are cognate and related to amendment No. 295. Amendments Nos. 297 and 298 are related. Amendments Nos. 295 to 300, inclusive, may be discussed together by agreement.
I move amendment No. 295:
In page 117, subsection (1), line 1, to delete "Subject to the approval of the Minister, the Board" and substitute "The Minister".
This relates to fees. Is this too much of an interference in the board's powers?
Yes.
I will not pursue this matter. Senator Norris felt that the fees should be fixed by the Minister rather than by the board but I understand the Minister's reluctance to get involved.
Amendment, by leave, withdrawn.
Amendments Nos. 296 to 300, inclusive, not moved.
Section 129 agreed to.
SECTION 130.
I move amendment No. 301:
In page 117, lines 44 to 53, and in page 118, lines 1 to 13, to delete paragraph (b)
The board is being given very great powers in this section. While it is an official body, it is not a court. Is it necessary to give the board these powers because it is already possible for it to dismiss appeals but not refund people the moneys paid?
The board already has this power under the 1976 Act and I am not aware that it was ever invoked. Therefore, the provision which has been in place for 23 years has not been abused in the past and I do not think it will be abused in the future. I am opposed to the deletion of the paragraph. This goes back to what was said earlier about people delaying appeals in order to delay a project, even though there are no good grounds for the appeal. This brings the whole process into disrepute. The deletion of the paragraph would remove a measure to prevent this happening.
Amendment, by leave, withdrawn.
Section 130 agreed to.
SECTION 131.
I move amendment No. 302:
In page 118, line 25, after "therein)." to insert "Any such report shall be made available for public inspection at the office of the Board or the Minister within 3 working days following the relevant decision.".
In the interests of openness and transparency the report should be available for public inspection. I do not understand why this should cause a problem.
I agree that it should not cause undue problems. However, I cannot accept the amendment as currently worded. I will try to come up with a suitable wording.
Would it help to reword it for Report Stage?
It would.
Amendment, by leave, withdrawn.
I move amendment No. 303:
In page 118, between lines 25 and 26, to insert the following new subsection:
"(2) Where the Board decides by a simple majority against the recommendation of the inspector, the Board will refer the decision, and all relevant information to the appropriate local authority where the elected members will decide to grant or not to grant by two-thirds of the total membership, this decision to be made within four weeks.".
I feel strongly about this amendment which relates to cases where an inspector makes a decision and it is overruled by the board. This happens in about 10 per cent of cases. Often an inspector has better knowledge than the board about what is happening. What appeal mechanism is involved where the inspector's report is contrary to the decision of the board? My amendment proposes that the decision should be referred to the local authority which would decide by a two-thirds majority in favour or against the decision. In other words, that all proceedings, including the inspector's report and the board's agreement rather than its decision, would be referred to the local authority which would then make its decision. This may not be the best solution but where a contradiction exists there must be a better method than allowing the inspector to be overruled.
This relates to matters we discussed previously under various guises, that is, the role of the inspector vis-à-vis the board and appeals to the board. The board makes the decisions. The inspector merely investigates, draws up the report and makes the recommendations. As Minister for the Environment and Local Government, whether in respect of appeals about or objections to CPOs, motorway schemes, EISs, etc., I am responsible under the law for appointing an inspector or inspectors who, in turn, hold public hearings. In the case of the Dublin port tunnel, to which Senator Joe Doyle referred on the Adjournment on Wednesday evening, the two inspectors I appointed held hearings for 22 days.
Almost as long as it takes to complete Committee Stage of a Bill.
The inspectors draw up a report and offer recommendations and I am obliged to consider the EIS, the various objections, their reports and transcripts of the hearings before making a decision. If I was not in a position to be able to say that I disagreed with their conclusion, there would not be any point in the law existing in its current form. The same position applies here.
The inspector has a role to play. One of the documents to which the board must have regard – in 99 per cent of cases it does so – is the inspector's report which it overturns in only 10 per cent of cases. However, the inspector is only one aspect of the matter. The board must consider issues such as the proper planning and development of an area and national policy in relation to the particular type of development being undertaken in addition to the inspector's report.
To accept this amendment would give greater standing to one person who is being asked to advise the board than the three or more people who have been appointed to make planning appeal decisions. It would not prevent contro versy because an appellant who agreed with the board against the recommendation of an inspector would feel very aggrieved if the local authority overturned the board's decision. In my opinion the current situation represents the best option.
There would not be any point in the board existing if the inspector's word was law. The inspector should be allowed to investigate a matter, make his report and the board can make its decision on foot of that report. I am not prepared to accept the amendment.
Let us envisage a case where the five members of a board decide three in favour of an appeal and two against it and the inspector's report was also against it. In such a case, a decision would be made on foot of a very small majority and it may not be correct.
In a case such as the one to which the Senator refers, both sets of people on a board must have facts at their disposal to support the decision they take. If three people decide in favour and two against and it subsequently transpires that the facts do not support the decision, the person against whom that decision was made has a remedy available.
An Bord Pleanála is not a democracy, it is an appeals body which is charged with making decisions based on the facts before it. Similarly, the courts are not a democracy in a sense. If the Supreme Court makes a decision of this nature, the judges must also base their decisions and recommendations on the facts at their disposal. There is no way we can take any other route in relation to An Bord Pleanála.
I doubt that anyone would make a decision because they were having a bad hair day. However, the amendment proposes that it would not be the inspector who would make the final decision but that the matter would be referred back to the local authority. I am willing to withdraw the amendment and resubmit it on Report Stage.
Irrespective of whether An Bord Pleanála is a democracy, let us envisage circumstances where a case involving a contravention of a county development plan comes before a county council. The contravention might be supported by the county manager and defeated by one vote. Is Senator Coogan saying that there must be an appeal on an appeal on an appeal? In such circumstances the ball would keep bouncing backwards and forwards indefinitely.
Amendment, by leave, withdrawn.
Section 131 agreed to.
Section 132 agreed to.
SECTION 133.
Amendments Nos. 303a, 303b, 303c and 303g are related and may be discussed together by agreement.
I move amendment No. 303a:
In page 122, subsection (5)(a)(ii), line 7, after "matter." to insert "The Board shall record the disclosure by an employee or other person in its minutes relating to the decision on the particular item and shall also record the declaration.".
These amendments involve employees, members of the board or their relatives having to disclose their interests. These disclosures should be recorded and made available to the people who make the decisions. No one should be able to misinterpret the position of an employee or anyone attached to the board in circumstances where they have pecuniary interests.
I agree with the principle behind these amendments. Discussions are taking place between the local government and planning and development sections of my Department to decide which is more appropriate. In the local government Bill which is currently under preparation, there is a section dealing with ethics. I ask the Senator to withdraw the amendment because the provisions she is seeking will appear in this Bill in the form of Report Stage amendments in the Seanad, Committee Stage amendments in the Dáil or in the local government Bill. The principle is accepted, we must now decide which Bill will provide the most appropriate vehicle.
Such provisions will provide safeguards for employees as well as everyone else involved.
Amendment, by leave, withdrawn.
Amendments Nos. 303b and 303c not moved.
Amendment No. 303e is consequential on amendment No. 303d and they may be discussed together by agreement.
I move amendment No. 303d:
In page 122, subsection (6)(a), line 27, after "spouse" to insert "and any member of their immediate family such as brothers and sisters and brothers and sisters-in-law and their own children as well as those of their in-laws".
Amendment No. 303d is designed to extend the provisions in section 133(6)(a) because immediate family members other than a person's spouse may have as large an interest in a pecuniary concern.
The same position applies in respect of this amendment as applied to earlier amendments. An Bord Pleanála is currently governed by the provisions of the Ethics in Public Office Act which also requires a register of interests to be established and for disclosures to be made where consideration of a matter may conflict with the performance of functions. The ethics Act provides a wide definition of interests including, as Members are aware, gifts and travel expenses given to a person. However, under that Act, the level for declaring an interest such as shares in a company or a holding in land is set at £10,000 rather than £1,000, which is the case under the Bill. I will consider this again before Report Stage and decide whether it should be part of this or the other Bill. I am anxious to avoid making four or five declarations in different places because one can fall between two stools in doing so. One does not know then whether one has the declarations made. The provisions contained in the ethics Bill and in the electoral Act certainly caused me confusion.
Amendment, by leave, withdrawn.
Amendments Nos. 303e to 303h, inclusive, not moved.
Section 133 agreed to.
SECTION 134.
I move amendment No. 303i:
In page 124, between lines 5 and 6, to insert the following new paragraph:
"(f)In case the person is an employee of the Board or a local planning authority he or she shall on conviction cease to be an employee for a period of at least 5 years.".
This is a fairly severe stricture on the person, and Senator Norris, who asked for that, says it should be.
There is a difficulty with the amendment given that employment in local authorities is usually on a permanent basis. Automatic suspension for five years could be unconstitutional, given its interference with the right to earn a living, especially if a conviction relates to a relatively minor transgression. Membership of the board or a local authority does not guarantee permanency. There are established mechanisms under local government law to deal with local authority discipline issues which can be invoked when an employee is convicted of an offence in this area. I ask the Senator, because of the constitutional implications, to withdraw that amendment.
Amendment, by leave, withdrawn.
I move amendment No. 304:
In page 124, between lines 5 and 6, to insert the following new subsection:
"(3)A disqualification under this section shall take effect on the expiry of the ordinary time for appeal from the conviction concerned or if an appeal is brought within that time, upon the final disposal of that appeal.".
I accept the amendment.
Amendment agreed to.
Section 134, as amended, agreed to.
Sections 135 and 136 agreed to.
SECTION 137.
I move amendment No. 304a:
In page 126, lines 4 to 6, to delete subsection (2).
Senator Norris felt this should be removed to avoid confusion about what constitutes a trivial matter.
That may be his intention in this amendment, but the current discretion given to officers is very important. We are all aware of vexatious complaints and rows between neighbours. We do not want to draw the local authority or the planning authority into squabbles on minor matters, which can be raised to huge heights, just to get back at a neighbour. That would be the effect of this amendment. We have tried to ensure under the Bill that planning authorities must respond to genuine complaints. However, if the system is to operate effectively, it is important that planning authorities have some discretion to use common sense in the operation of these provisions. Most Members have witnessed examples of various stages of complaints under planning law, involving one neighbour trying to get back at another. We should try to keep local authorities out of that as far as possible.
Amendment, by leave, withdrawn.
Amendments Nos. 304b, 305a 311a, 312a, 312d, 312e, 312f and 312h are related and may be discussed together by agreement.
I move amendment No. 304b:
In page 126, subsection (4)(b), lines 16 and 17, to delete "four weeks" and substitute "one month".
The weeks have won and the months have lost, and I will not spend much longer on it. I would have chosen lunar months myself.
Amendment, by leave, withdrawn.
I move amendment No. 305:
In page 126, between lines 28 and 29, to insert the following new subsection:
"(5)A person who makes a written representation to a planning authority pursuant to subsection (1) shall not be subject to legal liability solely by reason of so making the representation."
This attempts to protect from legal liability persons who have made representations regarding unauthorised development under section 137. There is no reason for this amendment because if a person makes a genuine complaint about suspected unauthorised development, he or she will have nothing to fear. If a person is being mischievous or malicious, however, the usual rules regarding such persons and a person's right to his good name should apply. It would not be a very reasonable amendment to accept. I ask the Senator to withdraw it.
Amendment, by leave, withdrawn.
Section 137 agreed to.
Amendment No. 305a not moved.
Section 138 agreed to.
SECTION 139.
I move amendment No. 305b:
In page 127, subsection (2), line 18, to delete ", if appropriate,".
This provision states if serious or "if appropriate". Who will decide whether it is appropriate? This is a very subjective phrase.
In this case "if appropriate" means if somebody makes representations, the person must be informed. Currently that is the law. The only reason for including the words "if appropriate" in this case is that if the authority acts of its own volition or acts itself because it becomes aware of something, it has nobody to notify.
Amendment, by leave, withdrawn.
I move amendment No. 305c:
In page 128, subsection (7)(b)(ii), line 47, after "years" to insert "provided the person on whom the enforcement notice was served has already repaid any expenses incurred by the planning authority in securing the implementation of the terms of its enforcement notice".
This is covered in the Bill.
It is covered in the Bill? I thank the Minister. I feel like a barrister who is taking instruction from three lots of solicitors.
It is a pity Senator Norris did not take some instruction before he put down some of these amendments.
Amendment, by leave, withdrawn.
Government amendment No. 306:
In page 129, between lines 25 and 26, to insert the following new subsection:
"(14)A report of a local authority under section 50 of the Local Government Act, 1991, shall contain details of the number of enforcement notices issued under this section, warning notices issued under section 138, prosecutions brought under section 142 and injunctions sought under section 145 by that authority.".
This amendment requires the manager to report on how the planning code is being enforced in the local authority area. It provides that the local authority annual report, which is prepared in accordance with the Local Government Act, 1991, should contain details of how the enforcement provisions are being applied by planning authorities. The report must be prepared by the manager before the end of June every year and submitted to members of the authority. It is also available to members of the public to inspect or buy. This new reporting requirement should give a very good idea of how each planning authority is responding to the new requirements under this Bill. It is part of the new spirit of transparency and the enforcement system which the Bill promotes. It is also an effort on my behalf to make sure the local authorities discuss important matters like the enforcement of planning laws and the performance of the manager and the executive of local authorities on a regular basis.
Amendment agreed to.
Question proposed: "That section 139, as amended, stand part of the Bill."
I welcome these provisions, particularly those on enforcement, notices and managers making reports. On Second Stage I make the point that many of provisions in this Bill will create greater efficiency within the system, which is important, but the necessary resources will have to be provided. Enforcement has not been at anything near the level required in the local authorities with which I am familiar. Resources must be applied and in many cases an individual in the planning section should be dedicated to enforcement, rather than leaving it to the local engineer or planning officer, who are trying to meet deadlines for the granting of applications.
This is an important matter, which I referred to on Second Stage. The personnel and resources allocated to enforcement are important. I do not know whether that can be done in the context of the area committees. The specific remit of area committees is based on constituencies. The Dublin local authority area is divided into five and each constituency has an area committee. It is more cohesive because the councillors represent the local area and are more focused in their work. If the secretariats serving such committees dealt with housing and planning in a similar manner and enforcement officers were specific to those areas there would be a direct link between the councillors, who are aware where enforcement is required, and officials, because it is not always brought to their attention. Perhaps something can be done in that respect to focus the system of enforcement.
The manner in which councils throughout the country, but particularly in Dublin, are organising themselves into area committees will be a great help to local government administration and allow people to identify more closely with their local authorities. Specific provision is being made in the local authorities of which I am aware, including Dublin, for planning enforcement, housing, etc., by the area committees. It should be encouraged.
Question put and agreed to.
Section 140 agreed to.
SECTION 141.
Government amendment No. 307:
In page 130, between lines 40 and 41, to insert the following new subsection:
"(8)On conviction of an offence under section 139, the court may, in addition to imposing the penalties specified in subsections (1) and (2), order the person convicted to take the steps specified in the enforcement order to be taken.".
Under the current law if a person is convicted of an offence of failing to comply with an enforcement notice the court may impose a penalty, which can be a fine or imprisonment. However, the person may pay the fine but not comply with the enforcement notice and the breach of the law will continue. This annoys everybody and has caused great problems for local authorities. In that case the only action the authority can take is to continue to prosecute for further offences or enter onto the land and undertake the work. The amendment would enable the court order to specify that the steps in the notice must be carried out by the convicted person, who would then be subject to the court order and in contempt of court if they did not comply. This would be another means of enabling local authorities to require compliance with the order and should strengthen the law in this regard.
This is an excellent provision and the Minister and the Department should be congratulated on it. All of us are aware of instances where notices have been defied and this will prevent that from happening. It will be possible to intervene directly.
Amendment agreed to.
Question proposed: "That section 141, as amended, stand part of the Bill."
On Second Stage I referred to a lack of environmental strength in the Bill, about which I did not elaborate. Part X and other sections deal with environmental issues but there is a potential weakness with regard to the penalties associated with such issues. The penalties under this section are appropriate and are much stronger than those in the Fisheries Acts or associated environmental legislation. For example, a false statement could be provided for an environmental impact assessment under section 156 but because of the strength of the penalties this may be the appropriate section under which to deal with the environmental damage. Perhaps the Minister will look at this before Report Stage or before the legislation reaches the Dáil. Other examples include salmon passages which were built at Clohamon weir on the River Slaney or generating plants built on salmon rivers and if these were erected in defiance of planning laws, there should be a penalty to ensure that the environment is protected. The same applies to piggeries in the Lough Sheelin catchment area. Perhaps, the Minister will take this into account.
Question put and agreed to.
SECTION 142.
Government amendment No. 308:
In page 131, subsection (4), line 13, to delete "(2)" and substitute "(3)(b)".
Amendment agreed to.
Amendments Nos. 308b, 308c, 309a and 309b are cognate to amendment No. 308a. All may be discussed together by agreement.
I move amendment No. 308a:
In page 131, subsection (5)(a)(i), line 23, to delete "seven years" and substitute "ten years".
The amendment proposes to extend the time within which prosecutions can take place from seven to ten years.
I have already increased this period from five to seven years and that is suf ficient. If enforcement action has not been taken within that time, I doubt very much if it will be taken within ten years. There is no benefit in extending it any further and it should be noted that the period for taking action begins at the time at which the unauthorised development first comes to the notice of the local authority. Seven years is more than adequate. The development could be in place for four or five years and then come to the attention of the local authority, which then has another seven years to take action. A potential total of 12 years is long enough. I am particularly anxious that local authorities act much quicker in regard to unfinished estates and so on.
Amendment, by leave, withdrawn.
Amendments Nos. 308b and 308c not moved.
Section 142, as amended, agreed to.
Section 143 agreed to.
SECTION 144.
Government amendment No. 309:
In page 132, lines 7 and 8, to delete "authority" and substitute "planning authority".
Amendment agreed to.
Section 144, as amended, agreed to.
Amendments Nos. 309a and 309b not moved.
Section 145 agreed to.
Sections 146 to 150, inclusive, agreed to.
SECTION 151.
I move amendment No. 309c:
In page 134, subsection (1), line 23, after "sites" to insert "provided the land concerned does not form part of an amenity as defined in Part XIII of this Act or is specifically zoned for amenity purposes in the development plan of the local planning authority as well as not being designated for the purposes of nature conservation such as European Sites".
The amendment seeks to specify that particularly important environmental sites could not be included as a site in a development.
I do not have a major problem with this but the amendment is unnecessary because I do not think the Government would designate a site which was subject to amenity or conservation orders as an SDZ. They will be identified by the industrial development agencies in consultation with local authorities. It is in nobody's interest to choose sites designated as SACs or SAAOs. The laws governing these sites would be likely to preclude major development taking place in them. As I do not think the issue will arise, I consider the amendment unnecessary. Nobody would be foolish enough to seek to put in an SDZ in any of these areas which are protected in their own right under their own legislation.
Amendment, by leave, withdrawn.
Section 151 agreed to.
SECTION 152.
I move amendment No. 310:
In page 135, subsection (2), lines 13 to 15, to delete paragraph (f) and substitute the following new paragraph:
"(f)proposals relating to minimising any adverse effects on the environment, the national heritage, and on the amenities of the area.".
Once again this amendment seeks to ensure there will be minimal adverse effects on the environment and the amenities of any area.
As explained previously, the term "national heritage" is encompassed in the word "environment". Environment is broad enough to encompass that. What the amendment seeks is already covered and it is not necessary to include it specifically.
Amendment, by leave, withdrawn.
Amendment No. 311 not moved.
Section 152 agreed to.
SECTION 153.
Amendment No. 311a not moved.
Government amendment No. 312:
In page 136, subsection (3)(a), line 1, to delete "three months" and substitute "12 weeks".
Amendment agreed to.
Amendment No. 312a not moved.
Acting Chairman
Amendments Nos. 312b and 312c are cognate and may be taken together.
I move amendment No. 312b:
In page 136, subsection (4)(a), line 20, after "(3)" to insert "and any submissions or observations made to the planning authority under subsection (2)(b)".
This is already catered for in previous sections. This section provides that the manager must prepare a report arising out of the public consultation carried out on the draft scheme. The report has to list the persons who made submissions regarding the scheme and summarise the issues raised. Therefore, it is explicit that the issues raised by the public must be taken into consideration by the elected members through the manager's report. It is exactly the same mechanism that is provided for in sections 11, 12 and 13 for the development plan which we discussed earlier.
It is similar to Part X.
Amendment, by leave, withdrawn.
Amendment Nos. 312c to 312h, inclusive, and 313 not moved
Section 153, as amended, agreed to.
SECTION 154.
I move amendment No. 314:
In page 138, subsection (2), line 1, to delete "shall" and substitute "may".
This is the old "shall"-"may" argument again. I notice that "shall" has been included occasionally, but I do not know if the Minister wishes to take it now.
This is not quite the same as the "may"-"shall" we discussed previously. This amendment would substitute "may" for "shall" regarding a planning authority's obligations to grant permission in an SDZ. Section 154 provides that a planning authority shall grant permission in an SDZ but only where the proposed development meets all the criteria set out in the planning scheme. This guarantee of permission where the development is fully compliant with the planning scheme is an essential element for the certainty of the SDZ. Where a development does not meet the criteria or cannot do so by way of attaching conditions, the authority must refuse permission. There is no appeal to the board either way. However, as the planning scheme has already gone through extensive public consultation, with a possible appeal to the board, the planning issues will have been fully thrashed out in advance. Therefore, the amendment is not necessary.
Amendment, by leave, withdrawn.
Amendment No. 315 not moved.
Section 154 agreed to.
Sections 155 and 156 agreed to.
SECTION 157.
Government amendment No. 316:
In page 140, subsection (3), line 22, after "Board" to insert "or where the Board requires an appeal to be accompanied by an environmental impact assessment".
The 1997 EIA directive requires the planning authority to give an opinion on the information which should be contained in the EIS if the developer so requests. This is known as scoping; in other words deciding what the scope of the EIS should be. This Part of the Bill which transposes the directive into primary law for the first time already sets out this requirement on the planning authority. The Bill also states that regulations may be made concerning the making of a scoping request to the board when a planning decision which is subject to an EIA is appealed. However, in occasional cases the first time an EIS is requested can be by the board when it examines an appeal. This amendment makes provision for regulations to be made on the requirements on the board when a developer requests scoping by the board and brings the provisions into alignment with the rest of the section. I am also making a technical amendment to the section, the word "assessment" should be replaced by the word "statement".
Amendment agreed to.
Section 157, as amended, agreed to.
Section 158 agreed to.
SECTION 159.
Government amendment No. 317:
In page 141, lines 38 to 42, to delete subsection (1) and substitute the following:
"(1)A local authority which is a planning authority shall cause an environmental impact statement to be prepared in respect of development proposed to be carried out within its functional area–
(a)by the local authority, or
(b)on behalf of the local authority or in partnership with the local authority, pursuant to a contract with the local authority.".
This section concerns environmental impact assessments of local authorities' own developments. Where local authorities intend to carry out a development which is subject to an EIA in its own area, the development must be approved by the board. Development in the local authority's functional area which is not subject to an EIA is, of course, subject to the requirements set out in section 163, that is, Part X, dealing with procedure.
This amendment clarifies that these provisions also apply to projects carried out on behalf of the local authority or in partnership with the local authority pursuant to a contract. This provision mirrors the existing provision in section 163 in relation to a local authority own development and is designed to facilitate development carried out by public-private partnerships with local authorities. The amendment is needed to bring section 159 and 163 into line with each other.
Amendment agreed to.
Government amendment No. 318:
In page 142, subsection (4)(a)(iii), line 12, to delete "four weeks" and substitute "4 weeks".
Amendment agreed to.
Government amendment No. 319:
In page 142, subsection (4)(a)(iv), lines 16 and 17, to delete "two weeks" and substitute "2 weeks".
Amendment agreed to.
Section 159, as amended, agreed to.
SECTION 160.
I move amendment No. 320:
In page 144, subsection (2), line 43, to delete "may provide for all or any one or more" and substitute "shall provide for all".
This returns to the "shall" or "may" argument. In this instance the inclusion of the word "shall" will make the provision firmer.
This amendment would require ministerial EIA regulations to provide for all the matters set out in the section. However, as the section sets out alternative and, therefore, conflicting approaches as to how an EIA may be carried out in the future, requiring the regulations to provide for all those matters does not make logical sense because it will be contradictory.
I am surprised Senator Norris put down this amendment if it does not make logical sense. It is most unlike him.
Most unlike him.
Amendment, by leave, withdrawn.
Section 160 agreed to.
Sections 161 and 162 agreed to.
SECTION 163.
I move amendment No. 321:
In page 146, subsection (1)(a), line 1, to delete "Prescribed".
This amendment would delete the word "Prescribed" where the Bill refers in subsection (1) to development to which the section relates. As it is not proposed that every minor work which a local authority carries out should be subject to the procedures under this section, it is essential that the section is confined to prescribed works. For that reason I cannot accept the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 322:
In page 146, subsection (1)(b), line 8, after "section" to insert "where he or she is of the opinion that it is necessary by reason of its size, nature or effect on its surroundings".
Amendment agreed to.
Government amendment No. 323:
In page 146, subsection (3)(a), line 30, after "a" to insert "written".
This amendment seeks to clarify that the report the manager must prepare on the proposed local authority own development to submit to the local authority members must be in writing. Concern was expressed by commentators on the Bill that the manager would only give a verbal report to members. This amendment will clarify what was always my intention, that the report must be written. In clarifying this, perhaps we should stipulate on Report Stage that the report must be circulated on disc or whatever.
Amendment agreed to.
Amendment No. 324 not moved.
Section 163, as amended, agreed to.
SECTION 164.
Question proposed: "That section 164 stand part of the Bill."
This section deals with the taking in charge of estates. It is a good section. It puts the onus on estates that are more than seven years old and provides that the council may be obliged by the residents to take them in charge. There has been a reluctance to do this in the past because of the inherent cost of bringing them up to an acceptable standard. It brings us back to enforcement and to ensuring that the development was undertaken in accordance with the proper planning procedures and the specification submitted.
I agree with the thrust of the section, but it is important that when an estate is completed an onus is placed on the developer and his professional agent to certify or, failing that, to pay a fee to the council to have it independently certified that the development has been undertaken in accordance with best building practice and the specifications. The purpose of this would be to ensure that the authority does not ultimately face a contingent liability. The cost of remedying some estates could be significant and authorities should be protected from that. The onus primarily should be on the developer to ensure schemes are built in accordance with proper planning and other conditions.
The Minister is to be commended on this section because it is an area that causes considerable grief to all local authority members. He is to be especially commended for a radical provision in the section to the effect that the local authority can be requested to act by a majority of the qualified electorate living in an estate, or that there can be a plebiscite There have been frequent calls for plebiscites of this kind at local authority level. As far as I am aware, they have been rejected in almost all circumstances. This is a novel and good approach. It is the essence of what democratic politics should be about.
I also praise the Minster because this will have excellent social consequences.
The Labour Party introduced a Bill to this effect and I am glad the Minister has taken it on board. It is a far-reaching and radical measure and it will be welcomed by residents' associations. Has the Minister considered how to increase the bond on builders with regard to estates? The level of the bond subject to estreatment where an estate is not finished is small.
I thank Senators for their comments on this section. I know the issue is of great concern to Members on all sides of the House. On the question of bonds, Senator Walsh's suggestion can be dealt with either through the bonding system or by imposing specific conditions on planning.
The bonding is entirely a matter for the local authorities. They should try and get it right. They got it badly wrong at the outset, when cash and insurance bonds were being put in place. That was because of inexperience and other reasons. In consequence, many of the older estates are suffering. However, since then, the practice has increased and has become much more scientific.
There is now a deadline on the local authorities in that after seven years, at the latest, residents can make them take over the estate. That will make them act more carefully and ensure they have adequate bonds. The Department does not become directly involved in this, but it might usefully be taken up at local authority level. I am not sure that a bonding scheme ever becomes public in a local authority. It was certainly never discussed with members in my time as a local authority member. It might be a good idea to discuss it at local authority level to see if members have suggestions for improving it.
It has not been discussed to any great degree but the threat of confiscating or restricting the bond has been useful in getting builders to finish estates. In many cases, however, the bond is so small that it does not provide suf ficient pressure to do so. Given the great increase in the value of property at present, there may be a role for guidelines from the Department of the Environment and Local Government. Perhaps the bond could be index-linked to reflect increasing property values.
We will certainly examine that matter in the Department.
Question put and agreed to.
Sections 165 to 172, inclusive, agreed to.
SECTION 173.
Government amendment No. 325:
In page 154, subsection (7), line 23, to delete "3 months" and substitute "12 weeks".
Amendment agreed to.
Section 173, as amended, agreed to.
Sections 174 and 175 agreed to.
SECTION 176.
Government amendment No. 326:
In page 155, subsection (1), line 16, to delete "3 months" and substitute "12 weeks".
Amendment agreed to.
Section 176, as amended, agreed to.
Sections 177 to 184, inclusive, agreed to.
NEW SECTION.
I move amendment No. 327:
In page 158, before section 185 but in PART XII of the Bill, to insert the following new section:
"185.–Compensation shall not be payable arising from a decision of a planning authority unless the person concerned has validly submitted an appeal to the Board and has validly prosecuted the appeal to a decision on its merits.
The amendment is self-explanatory and states that compensation will only be payable if the person has validly submitted an appeal to the board and has validly prosecuted it.
I do not disagree with the principle behind the amendment but my advice is that compensation was dealt with adequately in the Planning Act, 1990, which is being totally transposed into this Bill. The law in regard to compensation is fairly well settled. I would prefer not to upset what has already been clearly established in case law, otherwise we could do more harm than good regarding compensation. Senators will remember the difficulties over this matter in local authorities. It has been fairly well settled at this stage and the amendment would not help the situation. It could cause loopholes to appear where none exist.
Amendment, by leave, withdrawn.
SECTION 185.
Acting Chairman
Amendments Nos. 327a, 328 and 328a are related and may be discussed together by agreement.
I move amendment No. 327a:
In page 158, subsection (1)(b), line 33, after "value" to insert "or".
Will the Minister accept this simple amendment? The need for nature conservation is very important, but it is not covered by the terms "outstanding natural beauty" or "special recreational value". Although we may feel that a bog is particularly lovely, other people may not think so. There are specific areas of nature conservation which are most important to maintain. While Senator Norris does mention areas designated under European or national legislation, I hope no one would think of doing anything with any such area. Perhaps the Minister would consider one or other of the two amendments.
My early experience of bogs, which was of turning and keeping turf, did not exactly endear them to me. Over the years, however, I have come to appreciate the outstanding natural beauty of such areas. From the time I spent at the Office of Public Works, when it was in charge of natural heritage, I believe the proper way to protect our natural heritage is in appropriate legislation. A wide range of laws are in place, or are being put in place, which designate special areas of conservation and protection. For example, natural heritage areas are protected by the Wildlife Bill, 1999. It does not serve any useful purpose to restate these in this Bill when there are much better alternative provisions in Acts which deal specifically with these areas. I fear having references and desirable aims like these in separate Bills because at a future stage somebody will be smart enough to use conflicting legislation to evade their obligations and escape the full rigours of the law. With all due respect to these amendments, areas of outstanding natural beauty are better served by legislation that will be enacted specifically for them.
In section 4 we dealt with a related issue concerning forestry. I do not disagree with the provision in the Bill that one can replant without permission, although the Minister said he would introduce regulations whereby permission will be required. One aspect of replanting needs to be considered, however, and that is that several of the very large plantations planted in the 1960s went right down to lakeshores. I am thinking of Lough Currane near Waterville which is a premier sea trout lake, and several lakes in Connemara. The Minister should do something in the regulations to ensure that when replanting takes place there will be a barrier – which the Minister can specify – between the lake and the forest.
That is a good point and one that I may be able to deal with by way of regulation. In fairness to those involved in forestry, nowadays there are regulations governing the distance of forests from houses, lakes and rivers. It is something that I will consider by regulation or by legislation at a later date if that is required.
I take the Minister's point that problems can arise from conflicting legislation. As there frequently seems to be a problem regarding nature conservation, I wondered if it would be possible to specify it in the Bill. If the Minister thinks it is unwise I will be advised by him. Perhaps he will think about it.
Amendment, by leave, withdrawn.
Amendments Nos. 328 and 328a not moved.
Section 185 agreed to.
Sections 186 to 192, inclusive, agreed to.
SECTION 193.
Acting Chairman
Amendments Nos. 328b, 328c, 328d, and 328e are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 328b:
In page 165, lines 33 to 38, to delete subsection (1) and substitute the following:
"(1) Where–
(a)land is vested in a local authority for the purposes of its functions under this or any other enactment, and
(b)the local authority is satisfied that the land should be made available for the purposes of any of those functions,
the local authority may appropriate the land for those purposes.".
I return to the point I made a few moments ago to Senator Henry. These amendments arise from a major consolidation of local government law both in this Bill and in the proposed local government Bill. They are mainly technical amendments arising out of the reconciliation of the various land acquisition and disposal provisions in the two codes. We want to avoid as much as possible the duplication of provisions, something I mentioned on a number of occasions. The main changes in these amendments provide that the disposal and lease of land provisions apply to all local authorities, not just planning authorities. In addition, the language in section 193(1) is clarified and the provisions of section 194 in relation to the disposal of land are extended to cover land appropriated under any enactment or otherwise acquired by the local authority, not just land appropriated under the planning Acts.
Amendment agreed to.
Section 193, as amended, agreed to.
SECTION 194.
Government amendment No. 328c:
In page 165, subsection (1), to delete lines 44 to 47 and substitute the following:
"(1)Any land acquired for the purposes of or appropriated under the Act or any other Act or acquired otherwise, by a local authority, may be sold, leased or exchanged, subject to such conditions as it may consider necessary where it no longer requires the land for any of its functions, or in order to secure–".
Amendment agreed to.
Government amendment No. 328d:
In page 166. subsection (2), line 11, to delete "planning authority" and substitute "local authority".
Amendment agreed to.
Government amendment No. 328e:
In page 166, subsection (4), lines 17 to 23, to delete paragraph (a) and substitute the following:
"(a)Where, as respects any land acquired for the purposes of or appropriated under this or any other Act or acquired otherwise by a local authority, the authority considers that it will not require the use of the land for any of its functions for a particular period, the authority may grant a lease of the land for that period or any less period and the lease shall be expressed as a lease granted for the purposes of this subsection.".
Amendment agreed to.
Section 194, as amended, agreed to.
Sections 195 and 196 agreed to.
SECTION 197.
Acting Chairman
Amendments Nos. 329, 330 and 333 are related and may be discussed together, by agreement.
Government amendment No. 329:
In page 168, subsection (1), line 26, after "the Board" to insert "except that any powers under those enactments to make regulations or prescribe any matter shall remain with the Minister".
These amendments are related to the transfer of powers of the Minister in relation to the compulsory acquisition of land by local authorities and the approval of road schemes and related environmental impact assessments under the Roads Act. Sections 197 and 198 transfer all the Minister's functions in relation to the CPO and approval of roads schemes. Amendments Nos. 329 and 330 clarify the language regarding the transfer and make sure that this transfer of functions does not include the Minister's power to make regulations. Following publication of the Bill a doubt was expressed as to whether section 198 achieved its purpose of transferring all the relevant functions of the Minister under the Roads Act as it currently refers to functions relating to compulsory purchase of land or environmental impact assessment. Amendment No. 330, therefore, rewords the provision to clarify that all functions, save those related to the making of regulations, are transferred. Amendment No. 333 also proposes to clarify that references in relation to regulations to "the Minister" would be changed to "the board" in relation to all the transferred functions under sections 197 and 198 and not just to compulsory purchase of land and environmental impact assessment as is currently stated in the section. For example, this includes the approval of road schemes.
There is a minor technical amendment to amendment No. 330. The word "referring" in the fifth line of the amendment must be deleted.
These amendments are too late for the citizens of Kildare town. I hope they will be of significant benefit to Monasterevin.
Amendment agreed to.
Section 197, as amended, agreed to.
SECTION 198.
Acting Chairman
A correction is necessary in amendment No. 330. The word "references" must be deleted from line 7 of the amendment as printed in the list of amendments.
Government amendment No. 330:
In page 169, lines 41 to 50, and in page 170, lines 1 to 13, to delete subsection (1) and substitute the following new subsection:
"(1)The functions of the Minister in relation to a scheme or proposed road development under sections 49, 50 and 51 of the Roads Act, 1993, are hereby transferred to and vested in the Board and relevant references in that Act to the Minister shall be construed as referring to the Board and any connected references shall be construed accordingly, except that any powers under those sections to make regulations or to prescribe any matter shall remain with the Minister.".
Amendment agreed to.
Section 198, as amended, agreed to.
Section 199 agreed to.
SECTION 200.
Acting Chairman
Amendments Nos. 331, 332, 347 and 356 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 331:
In page 171, subsection (3), line 1, to delete "Without prejudice to section 199" and substitute "Subject to section 199".
Amendment No. 331 is intended to clarify that sections 199 and 200 do not operate in conflict, which could be an interpretation taken from the present wording. Section 48, which we have already discussed, sets an eight week limit within which judicial review of certain decisions, including decisions by the board on the compulsory acquisition of land by local authorities under Part XIV can be sought. However, the Housing Act, 1966 currently provides that compulsory purchase orders come into force three weeks after the order is made unless a person applies to the High Court to quash the order. The Roads Act provides that a road scheme will come into operation after two months. These timeframes do not correspond with the times set out in this Bill and must be brought into alignment. Amendment No. 331 provides for new dates on which the orders will come into force to correspond with the changes made in this Bill. This amendment provides that where the Board makes a decision on a CPO relating to the Housing and Roads Acts, the order will come into force after eight weeks unless a challenge is brought, in which case it will come into force when determined by the court or after the challenge is dropped, as appropriate. As a consequence of these changes section 55A of the Roads Act, 1993 which was inserted by the Roads (Amendment) Act, 1998 is being repealed by amendment No. 356. However, a transitional arrangement is necessary for any order made by the Minister before the repeal of this provision. In that case, amendment No. 347 provides that the rules on judicial review set out in the Roads Act will continue to apply in respect of that judicial review proceeding.
Amendment agreed to.
Government amendment No. 332:
In page 171, between lines 22 and 23, to insert the following new subsection:
"(7)(a) A decision of the Board in relation to any functions transferred to it under sections 19 and 198 shall become operative–
(i)in the case where an application for leave to apply for judicial review relating to the decision has not been made, upon the expiration of 8 weeks from the date on which notice of the decision was first published,
(ii)in the case where such an application has been made, and has not been withdrawn, in so far as it has not been declared invalid or quashed pursuant to that review, upon the final determination of the proceedings concerned or such other date as may be determined in those proceedings, and
(iii) in the case where such an application has been made and is withdrawn, upon the date of the withdrawal.
(b)Subsections (8) and (9) of section 52 (inserted by the Roads (Amendment) Act, 1998) of the Roads Act, 1993 (as inserted by section 5 of the Roads (Amendment) Act, 1998) and subsections (2) to (4) of section 78 of the Housing Act, 1966, shall not apply in relation to decisions of the Board under this Part.".
Amendment agreed to.
Section 200, as amended, agreed to.
Sections 201 to 205, inclusive, agreed to.
SECTION 206.
Government amendment No. 333:
In page 174, subsection (1), lines 12 to 14, to delete "and which relate to his or her functions regarding the compulsory purchase of land or environmental impact assessment," and substitute "and which relate to the functions transferred under those sections,".
Amendment agreed to.
Section 206, as amended, agreed to.
Section 207 agreed to.
SECTION 208.
Question proposed: "That section 208 stand part of the Bill."
On Second Stage, I raised the issue of pop concerts and unauthorised events of that nature. This is a matter of considerable controversy in my county where a promoter sought to have a pop concert in Mondello Park. At the time there was confusion within the local authority as to whether or not permission was required. That matter has subsequently been dealt with in the courts. There is also a lack of clarity as to whether a section 4 motion could be moved and successfully upheld. I welcome what is taking place here. In his reply on Second Stage, the Minister said the Bill gave the local authority more power in this area and he was correct in that. This is an improvement on the previous situation. There are still some concerns in the county about this. A legal opinion was secured by the local residents group, which I have furnished to the Minister's officials. I do not intend, nor do we have the time, to go into it in detail. However, I ask the Minister to give detailed consideration to what is in the opinion, with a view to amending the Bill if that is required, either before Report Stage or before the Dáil considers it.
One of the principal concerns is that the local authority could be catching up in trying to implement the law after the event was over. I realise notices can be served under section 211. There is also concern about whether people selling tickets would be regarded as part of the promoters, whether the performers at the concert would be liable to prosecution and so on.
The detail is in the document which has been furnished to the Department. Perhaps, the Minister and his officials could give it detailed consideration so that we can allay people's very reasonable fears. I am not opposed to pop concerts. However, it was felt in this case that the infrastructure associated with the venue was not adequate to deal with the number of people who would attend.
The area I represent has also experienced many problems with pop concerts and other outdoor events. Will the granting of the licence be the function of the Minister or the local authority?
The local authority.
What will the local authority have to take into account? Will there be a hearing of the application? Can that be appealed? What is the situation vis-à-vis the granting of a licence?
There has been a number of controversies, particularly in Dublin, about concerts in places such as Croke Park, Lansdowne Road, the Phoenix Park—
The RDS.
—and the RDS, which is in Senator Doyle's neck of the woods. There seems to be an element of confusion and a lack of consultation in all cases. The local authority will have the overriding responsibility for granting licences.
I am not sure if there is provision for the level of consultation that will take place – this relates more to section 209 than 208 – with the residents, who do not seem to be mentioned in the section, and the responsible statutory agencies. There is no provision for bringing them all together, perhaps under the umbrella of the local authority, so that everybody will be satisfied with the arrangements for safety, infrastructure and litter and the other genuine fears of local residents, as distinct from just the immediate neighbours. The whole surrounding area will be affected because we are talking here about concerts attended by between 20,000 and 100,000 people. For example, U2 promised to play a free concert in the Phoenix Park, which would have been attended by about 100,000 people. It was eventually cancelled because agreement could not be reached and there were no structures in place to arrange a meeting between the various agencies which could deal with the problems that might arise. I wonder if the regulations are specific enough to ensure consultation, which is imperative.
The concerns of local residents will be taken into account when the local authority is deciding on an application for a licence. I do not want to say too much about it because it is more appropriate to the next set of amendments. Amendments Nos. 334 and 335 provide very clearly that the regulations I will make for licence applications will enable people to make their views known on a licence and will also provide that those views will have to be taken into account.
In relation to what Senator Dardis said and the helpful legal view he made available to my Department officials, I understand that some of those legal views are covered in the Bill or the amendments. We are looking at them and will take them into account on Report and later Stages of the Bill.
Question put and agreed to.
SECTION 209.
Acting Chairman
Amendments Nos. 334 to 337, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 334:
In page 175, lines 22 and 23, to delete paragraph (f) and substitute the following new paragraphs:
"(f)enabling persons to make submissions or observations within a prescribed time,
(g)requiring the applicant to submit any further information with respect to their application, and".
These are the amendments to which I referred a few minutes ago. The major concern expressed by most people was about the need for the people of the area to be able to make a submission on the event which the authority would have to take into account. It was always my intention to make regulations to ensure people could make submissions. I am happy, therefore, to propose these amendments which will make that absolutely clear.
Amendment No. 334 clarifies that regulations on event licensing may provide for people to make submissions and observations within a specified period. New paragraph (g) will also ensure the planning authority may be enabled to ask for further information in relation to the application before making its decision.
Amendment No. 335 states clearly to what the authority will have regard when making its decision on a planning application. This will include any submissions made to it by third parties, as well as the result of consultation with bodies, such as the Garda, in relation to an application.
A licence under this section can be granted for a once-off event, such as a concert in a park. They can also be granted for a series of events at a single venue, similar to a number of planning permissions which have been granted at sports grounds and so on. Amendment No. 336 would limit a multiple event licence to one year in duration, even if there were four or five events. Venues hoping to hold a number of outdoor events every year will have to renew their licence. This will allow the authority to review their arrangements for security, limiting inconvenience to local residents and so on, on a regular basis. This will prove to be an effective way of ensuring that these events, and the lead-up to them, are properly policed and looked after by organisers.
Amendment No. 337 seeks to make a small but important change. It provides that if a person gets a licence to hold an outdoor event, he or she will have to comply with all the other necessary regulations and laws, for example, getting the consent of the landowner, a drinks licence and so on. The same wording is used for planning permissions.
These changes clarify the situation regarding the decisions on applications for events licences and meet the concerns expressed by Members about consultation.
I have one slight query in regard to what constitutes an "event". I know there is a definition at the beginning of the Bill, however, we have had various interpretations by promoters of concerts in Croke Park. An event may be a three day event. Are we talking here about a multiple of performances constituting one event or does each individual performance constitute an event in itself? Where a multiple of events are permitted, promoters are inclined to extend the range for a week or whatever and regard it as a single event. They may then look for other licences at the same time.
I assume the Senator does not mean a three day event in the equestrian sense.
A person can apply for a licence for an event but he or she will have to specify whether this is a one day, two day or three day event. That would then, obviously, form part of the local authority's reckoning in relation to the event. It would not be possible for someone to apply for a one day event and continue it for two or three days. They will have to specify very clearly the number of days so the local authority can impose whatever conditions are necessary to safeguard local residents.
I did not see that we had moved on to section 209 because I am getting so tired. The Minister's amendments deal with some of the problems we foresaw. The situation is under control as a result of these amendments.
Amendment agreed to.
Government amendment No. 335:
In page 175, lines 31 to 34, to delete paragraph (b) and substitute the following paragraph:
"(b) In considering an application for a licence under this section, the local authority shall have regard to:
(i)any information relating to the application furnished to it by the applicant in accordance with subsection (2)(d) or (g),
(ii)any consultations under subsection (2)(e),
(iii)any submissions or observations made to it in accordance with subsection (2)(f),
(iv)the matters referred to in subsection (4), and
(v) any guidelines or codes of practice issued by the Minister or by any other Minister of the Government.".
Amendment agreed to.
Government amendment No. 336:
In page 176, subsection (4)(h), line 12, after "period" to insert "not exceeding one year".
Amendment agreed to.
Government amendment No. 337:
In page 176, between lines 20 and 21, to insert the following new subsection:
"(5)A person shall not be entitled solely by reason of a licence under this section to hold an event.".
Amendment agreed to.
Section 209, as amended, agreed to.
Sections 210 to 213, inclusive, agreed to.
SECTION 214.
Acting Chairman
Amendments Nos. 338 and 339 are related and may be taken together by agreement.
I move amendment No. 338:
In page 178, lines 10 to 15, to delete subsection (1).
This is a wonderful section if the Minister can get away with it. It is an all-embracing section under which neither the Minister, the local authority nor anyone connected with the local authority has liability, good, bad or indifferent, concerning a failure to comply with any function. Civil proceedings cannot be brought against anyone for contravention of the sections. It seems that natural justice would oblige the Minister to delete this section and that failure to comply with any function conferred on the Minister or a local authority by the sections we have discussed should involve provision for legal liability. This seems to give the wrong message to funfairs and events which take place in that we are attempting to eschew any legal liability on a statutory basis and we are promoting an anti-safety approach to events which, generally, are very desirable.
The import of this amendment is to ensure that neither the Minister, the local authority nor anyone else is an easy target, allowing promoters to shirk their responsibilities, and that if promoters fail to comply with any of the functions under their licence, neither the Minister nor the local authority can be enjoined. The Senator is reading the section incorrectly. The generality gives the local authorities a role in licensing outdoor events but it is up to organisers of such events to ensure that they are run properly. The State should not have to carry the cost where there has been a failure on the part of organisers to do so. The consequences of failure should be met by the organisers. I do not want the State or local authorities to be seen as easy targets and be sued if things go wrong, as there would be no obligation on organisers to ensure safety or to consider matters of public liability. I appreciate the concern expressed by the Senator, but he is misreading the section. I will see if we can make the section clearer, but we are trying to ensure that organisers of events carry the can if they fail to carry out any of the functions or to comply with the licence issued by local authorities.
I would appreciate clarification of this section. Section 214 states that no legal liability will lie "by the failure to comply with any functions conferred by this Part". Functions are conferred on local authorities, but they may not carry out those functions comprehensively. Some damage may occur as a result of that failure. The Minister's intention is that the functions concerned apply to promoters when they obtain a licence. However, this section seems so broad that it also encompasses local authorities which have functions under this Part. The same seems to apply concerning subsection (2) –"by reason only of the contravention of any provision of this Part". We need more specific reference to ringfence local authorities and the Minister.
I appreciate the point the Senator is making and I will look at this issue.
Amendment, by leave, withdrawn.
Amendment No. 339 not moved.
Section 214 agreed to.
Section 215 agreed to.
SECTION 216.
Government amendment No. 340:
In page 178, subsection (1), line 37, after "Act" to insert "or Part IV of the Act of 1963".
Section 216 concerns the new notification requirement for funfairs. Under this section travelling funfairs will have to notify the authority for the area and submit certain safety documentation for their equipment before they can operate. However, some permanent funfairs already have planning permission and it is not intended that the notification requirement would apply to them. Therefore, this amendment will clarify that funfairs which have planning permission granted under the 1963 Act, as well as under this Bill, will not be subject to these notification requirements. We are concerned with travelling funfairs.
Amendment agreed to.
Section 216, as amended, agreed to.
Sections 217 to 222, inclusive, agreed to.
SECTION 223.
Amendments Nos. 341 and 342 are related and may be taken together.
Government amendment No. 341:
In page 182, lines 8 to 13, to delete subsection (1) and substitute the following new subsection:
"(1)A person who has an interest in land and who intends to make a planning application may, with the agreement of the planning authority concerned (which shall not be unreasonably withheld), enter into consultations with the planning authority in order to discuss any proposed development in relation to the land and the planning authority may give advice to that person regarding the proposed application.".
Section 223 introduced a new requirement on the planning authority to engage in pre-planning consultations with people intending to make planning applications. This will lead to an overall improvement in the standard of applications made and to a reduction in the number of requests for further information or deferment, and in the number of refusals. Some planning authorities are already engaged in this practise, which I welcome. These initiatives are similar to the planning clinics which are intended to assist people with the relatively complex requirements of the planning code. However, during the seminars I held on this Bill some people expressed concern that, under the Bill as drafted, anyone could demand a pre-planning meeting or consultations and that the planning authority would have to respond to that demand. This would be the case even in situations where people had no intention of making a planning application and no way of pursuing an application on the land in question as they did not own it. This could be a large drain on authorities and could clog up the system.
These amendments provide that, to ask for a consultation, a person has to have sufficient interest in the land, must intend to apply for permission, and the type of interest in the land involved would be the same level of property interest required when making a planning application. Once the person has the necessary interest and the intention to apply, the planning authority cannot unreasonably withhold its agreement to have a pre-planning discussion.
Amendment No. 342 seeks to provide that planning authorities can fulfil their requirement to have a pre-planning consultation by specifying times and places where consultations will take place, that is by holding clinics. If they decide to go this route the times and places must be publicised. Local authorities are moving towards area-based communities and so on, and that would be helpful in that area.
Amendment agreed to.
Government amendment No. 342:
In page 182, between lines 23 and 24, to insert the following new subsection:
"(4)(a)In order to satisfy the requirements of this section, a planning authority may specify that consultations may be held at particular times and at particular locations and the authority shall not be obliged to enter into consultations otherwise than as specified by it.
(b)Where a planning authority decides to hold consultations in accordance with paragraph (a) it shall, at least once in each year, publish notice of the times and locations at which consultations are held in one or more newspapers circulating in the area of the authority.".
Amendment agreed to.
Question proposed: "That section 223, as amended, stand part of the Bill."
I welcome the introduction of this section. The practice in Wexford for a long time has been to involve applicants in prior consultation and it has led to an improvement in the applications, which has assisted the planning process by making it more effective and efficient. I am aware of neighbouring local authorities which are disinclined to engage in similar consultation. However, it is progressive to introduce it across the board.
I presume that under section 223(4)(b) planning authorities are not precluded from making appointments where they serve notice. In Wexford people must make appointments. A half day is set aside weekly and appointments are processed. If people turn up without an appointment for consultations at the times outlined in the public notice, are they entitled to be heard?
It is good that provision is being made to deal with abuses that have come to public notice in recent times within the planning process. People will be guilty of an offence if they seek an inducement or obtain any benefit following consultation entered into or any advice given under this section. Is that qualification necessary? If people took an inducement in any other area of the planning process, they would be guilty of an offence.
The local authority of which I am a member has a long history of pre-planning consultation. However, after applications were made, it also entered into consultations with local residents. Recently it has taken a strong line on this and there is now a cut off point. When an application is made it no longer receives representations from developers or the general public. Will the Minister extend such consultation to include residents' associations when planning applications are made? Very few residents' associations are aware that pre-planning consultation has taken place for their areas.
The section and amendments confirm what is happening in several counties, including Kildare. I concur with Senators Walsh's remarks on section 223(4), which is welcome. If that subsection were included in earlier legislation, perhaps some of those who had to appear at Dublin Castle might not have had to do so. I introduced an amendment to the Kildare county development plan that planning authorities should prepare a small, helpful booklet which would provide general guidelines to people. It will speed up the process considerably because, frequently, in non-controversial cases, people make mistakes in their applications. It would prevent mistakes and make life easier for both the planning authority and the applicant.
The pre-planning process outlined is welcome. However, the other side of the coin is neglected very often. The applicant seems to have unlimited access to the planning department and is able to ascertain residents' views but residents cannot obtain similar information about the applicant or the applicant is advised to devise a variation of the application which is then transmitted to the residents who might be affected detrimentally or otherwise by it. There is not any provision for consultation with other affected third parties and it is invidious that the only people invited to pre-planning consultations are those making applications. It should be widened and it is also dangerous that very often only one official deals with applicants. Undoubtedly, that is open to abuse. With regard to large developments, it is best to consult more people so that the current widespread perception that the planning authority is secretive and the applicant is the only person in the know is eliminated.
The provision in section 223(4), which was referred to by Senator Walsh, is in addition to the requirements of the Ethics in Public Office Act. It is being included here because it is a safeguard for pre-planning. The Senator also asked whether a person must now go to a clinic rather than have the option of meeting planners other than through clinics. Amendment No. 341 provides that local authorities can arrange "private" meetings.
My concern is that where public notice is given that consultation will take place at certain times, the impression is created that if people turn up without a prior appointment that they are entitled to be heard whereas in practice it operates entirely on the basis of appointment.
The provision does not prevent that but it is meant to give people notice about the consultations in terms of time, venue etc.. They can contact the planning office and receive such information. Senator Doyle asked, with regard to pre-planning consultations and the fact that only applicants are involved in pre-planning consultations, why residents do not have such a right. The purpose of pre-planning is to provide an opportunity for the individual who intends to apply for planning permission to outline what he proposes and find out whether the local authority has requirements outside the norm. Very often as a result of the procedure the individual must adopt a totally different approach to the planning application that he intended originally.
Or he might not submit it.
Yes, there is no merit in having people make their views known and, therefore, having a pre-planning planning procedure in place before an application becomes official. If the applicant wants everybody on board and feels it is necessary to inform residents and so on then he may outline the application and listen to their views. It happens in many cases, and it is wise to do that initially to try to reduce the level of opposition to an application before somebody decides to start a campaign against a planning application. There is not great merit in bringing in residents' groups and others for pre-planning consultations. It has not been part of the process up to now.
We will recognise it because it will be good for the process and will speed it up in many cases. It will ensure there is an improvement in the quality of submissions made. A number of local authorities were seriously concerned at the standard of applications they were receiving and held full day seminars for architects, engineers, builders – anyone submitting applications. There was a marked improvement in the standard of applications. The section allowing for pre-planning should streamline the system. The public has rights as regards formal applications before the local authority which should be sufficient. Someone submitting a large planning application which is likely to be controversial would be well advised to engage in consultations with residents beforehand.
As regards the provision on consultancy, Senator Dardis said a great deal of what is happening would not be happening if this provision had existed previously. The impression is being given that this is the panacea for all ills – it is not. It will drive it further underground. I am not sure that all the possibilities could be provided for in legislation. We spoke about developers and their ability to find loopholes. The Minister said that perhaps we would be better at it than them. Nevertheless, I cannot see any way of stopping it completely. There are a number of indirect yet legal ways around it whereby a person could get a donation. The public may get the impression that this will put a stop to it – it will not. However, it is a very good provision and I commend it.
I would not suggest that this will stop it. I do not think any legislation in respect of any criminal offence will stop criminal activity. However, it ensures it is an offence, which is the issue. I agree with the Minister and disagree with Senator Costello – one cannot have consultations on the basis of what might happen. One can have consultations with the people promoting the development but one has to wait before it is put before the authority. In my experience, council officials are quite accessible and talk to groups. There is a proposal before Kildare County Council from a Bord na Móna led consortium to build a 400 KVA gas powered plant. The consortium consulted the local community, displayed the model and explained what it is doing to local representatives. By doing so, it had a considerable headstart instead of doing nothing.
The position articulated by Senator Doyle and me is that the local authority will not consult local residents and will only do so with the applicant, either at a pre-planning or at a later stage. There is no provision in the legislation for wider consultation, which is a lacuna in the present process. This gives rise to rumours and concern about what is going on behind the scenes. People read about tribunals in the newspapers every day and say this is what is giving rise to them. I accept the point that this is not the appropriate place to make provision for it because a development may not go ahead. However, unless there is some provision for wider consultation, not just limited to the applicant, we will not get the best results. Perhaps the Minister will take this on board and find somewhere to include it.
Elected representatives have the opportunity to raise concerns about planning at area or council meetings. There are specific planning committees, and more recently SPCs, in a number of local authorities. That is what public representatives are there for – to represent the views of the public. It would not be right and proper to start a discussion on an application with those making submissions, either for or against. Once it officially becomes a planning application, the only contact should be for clarification or to inform someone permission is refused. A local authority should decide a planning application on the grounds of good planning and sustainable development, not necessarily on the views of local residents who increasingly in many places do not want any development. I include myself in that – one would prefer if everything stayed as it was. There is a distinction between objections on genuine planning and development grounds and people objecting to a development because they do not want to be disturbed.
Question put and agreed to.
Sections 224 and 225 agreed to.
SECTION 226.
Amendment No. 343 not moved.
Government amendment No. 344:
In page 184, subsection (5), line 8, to delete "3 months" and substitute "12 weeks".
Amendment agreed to.
Section 226, as amended, agreed to.
Sections 227 and 228 agreed to.
SECTION 229.
Government amendment No. 345:
In page 187, subsection (4)(b), line 3 to delete "one month" and substitute "4 weeks".
Amendment agreed to.
Section 229, as amended, agreed to.
Section 230 agreed to.
Amendment No. 346 not moved.
Sections 231 to 242, inclusive, agreed to.
SECTION 243.
Government amendment No. 347:
In page 194, lines 30 to 33, to delete paragraph (e) and substitute the following new paragraph:
"(e) section 55A (inserted by the Roads (Amendment) Act, 1998) of the Roads Act, 1993 (as inserted by section 6 of the Roads (Amendment) Act, 1998) shall continue to apply in relation to an order of the Minister under section 49(3) or 51(6) of that Act.".
Amendment agreed to.
Government amendment No. 348:
In page 194, between lines 33 and 34 to insert the following new section:
"(2)Any codes of practice concerning the holding of events issued by the Minister or any other Minister of the Government prior to the coming into force of this Act shall be deemed to be codes of practice under section 210.".
This is a technical amendment suggested by the parliamentary draftsman to correct an inaccuracy. Section 243 begins by stating "notwithstanding the repeal of any enactment by this Act". However, the codes of practice already drawn up relating to safety etc. at concerts were not based on any statutory authority. That authority is introduced by this Bill. The repeal of the enactments will, therefore, have no effects on these codes and the heading of the section is inaccurate. For that reason, a new subsection will be created by this amendment, to remove the inaccuracy. No other change of wording is involved and there is no change in substance.
That answers a question I could have asked at considerable length on an earlier section. I am glad the Minister has taken it into account, because there was a question as to whether it could affect the constitutionality of the Bill and the Minister's legal powers to implement codes of practice.
Amendment agreed to.
Section 243, as amended, agreed to.
Sections 244 and 245 agreed to.
FIRST SCHEDULE.
Government amendment No. 349:
In page 195, line 14, to delete paragraph 5.
Amendment agreed to.
Amendments Nos. 350 and 351 are related and may be discussed together.
Government amendment No. 350:
In page 196, line 37, to delete subparagraph (b) and substitute the following subparagraph:
"(b)community centres;".
The amendments relate to the non-mandatory objectives to be included in the development plan. Amendment No. 350 seeks to provide that community centres are one of the types of community facilities necessary for the community and which the planning authority can facilitate through the development plan. While this is probably implicit in the Bill, it may be best to restate it. Members expressed this view during the Second Stage and Committee Stage debates. This will replace the current subparagraph (b) which refers to schools, crèches and other educational facilities. This is now a mandatory objective for the development plan under section 10 and no longer needs to be included here.
Amendment No. 351 would add "foreshore" to the list of places to which the planning authority may preserve existing public rights of way. This is unnecessary because of the inclusion of the word "seashore" in paragraph 8. The word "seashore" under section 2 means the same as in the Foreshore Act, 1933, where it is defined as meaning the foreshore in every beach, bank and cliff and all sands and rocks contiguous to the foreshore. Public rights of way to the foreshore, therefore, are already included.
I would like some clarification of "foreshore". This seems to refer to the foreshore of the sea. What is the position in relation to lakes? There is much controversy at present about access to the foreshore of lakes because of property purchased by non-farmers who are questioning rights of way in relation to the foreshore.
I welcome the amendments, particularly amendment No. 350 which relates to community centres. This issue arose during previous discussions in this House. I am pleased the Minister has taken it on board and tabled an amendment, as he has done in the case of many suggestions made during the debate.
In relation to the word "foreshore", to my knowledge there is no foreshore of a lake. "Land" includes land under water and covered by lakes. This is the property of the owner of the land. The foreshore means the bed and shore below the line of high water of ordinary or medium tides of the sea. This belongs to the State as opposed to the owner of the adjoining land. This is the distinction between the two.
Paragraph 8 in Part IV includes the word "lakeshore".
I am talking about the area of land which actually comprises the shore and an area further back. It seems that angling rights, rights of passage and rights of way where the land and the shore meet are proposed to be extinguished. I am satisfied if this is covered by the word "lakeshore".
As an angler who has fished in many of these areas, I have never known of a case where a public right of way to a lake was extinguished. On Crown waters, there is an absolute right to be on the lake and in private circumstances one must agree with private owners. I am not aware of where a right of way has been extinguished.
Lough Arrow in County Sligo is a constant bone of contention between the new owners of property contiguous to the shore and the rights of way of landowners and anglers.
Presumed rights of way.
Rights of way which people would have enjoyed over decades. This is causing enormous controversy.
The Senator will recall that earlier in the discussion there was mention of local authorities recognising public rights of way and including them in their development plans. This Bill will enhance rights of way which already exist. If there are no proper rights of way, the lakeshore is private property and a person can refuse access. If there is a public right of way, people should move to establish it formally in the county development plan. This can be done at present but it is enhanced further in this Bill.
The Minister said that shorelines were in the possession of the State. I wish that were true. If the Minister casts his mind back to Galway city, there were difficulties with a number of trustees who claimed rights. This has happened in a number of areas throughout the country. I would be very pleased if the Minister could make this legislation retrospective to the 12th century because it would resolve many issues. To clarify the matter, there are a number of areas where trustees have rights over the State.
There are exceptions to every rule. I know to what the Senator is referring.
Amendment agreed to.
Amendment No. 351 not moved.
First Schedule, as amended, agreed to.
Second and Third Schedules agreed to.
FOURTH SCHEDULE.
Amendments Nos. 352 and 353 are related and may be discussed together.
Government amendment No. 352:
In page 204, between lines 42 and 43, to insert the following paragraph:
"13.The proposed development would adversely affect an architectural conservation area.".
These amendments seek to permit refusals of permission without compensation for four reasons in addition to those currently set out in the Schedule. These new reasons reflect changes already made to the Bill.
Amendment agreed to.
Government amendment No. 353:
In page 204, between lines 42 and 43, to insert the following new paragraphs:
"14.The proposed development would adversely affect the linguistic or cultural heritage of the Gaeltacht.
15.The proposed development would materially contravene an objective indicated in a local area plan for the area.
16.The proposed development would be contrary to any Ministerial guidelines issued to planning authorities under section 28 or any Ministerial policy directive issued to planning authorities under section 29.".
Amendment agreed to.
Fourth Schedule, as amended, agreed to.
Fifth Schedule agreed to.
SIXTH SCHEDULE.
Amendments Nos. 354 and 355 are related and may be discussed together.
I move amendment No. 354:
In page 210, lines 10 to 12, in column 3 of the Table, to delete ", other than section 6".
This is a technical amendment. As the two sections concerned are repealed, there is no need for this reference.
The repeals under the Sixth Schedule allow two provisions of the existing planning Acts to remain on the Statute Book. The first provision is section 6 of the 1982 Act. This section gave retrospective authorisation to development granted permission by the Minister in contravention of the development plan following a court decision which declared that the then appeals body could not contravene the plan. The second provision in section 4 of the 1993 Act gave retrospective permission to all development carried out by the State following the Mullaghmore case which decided the State had to obtain planning permission. As these provisions had once-off effect, there is no reason to use them again or to contain them in a consolidated Bill. However, we were advised when drafting the Bill to leave the provisions on the Statute Book in case any doubt crept in about the validity of the developments authorised under these provisions. People could be concerned that the repeal of provisions could raise doubts about the continuing application of the provisions sought.
Amendment, by leave, withdrawn.
Government amendment No. 354a:
In page 210, between lines 16 and 17, to insert the following:
|
“No. 11 of 1991 |
Local Government Act, 1991 |
Sections 44 and 45”. |
Amendment agreed to.
Amendment No. 355 not moved.
Government amendment No. 356:
In page 210, between lines 21 and 22, to insert the following:
|
“No. 14 of 1993 |
Roads Act, 1993 |
Section 55A (as inserted by section 6 of the Roads Amendment Act, 1998).” |
Amendment agreed to.
Sixth Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
At 10.30 a.m. on Wednesday, 1 December 1999.
Is that agreed?
No. The Minister has already agreed to make a substantial number of changes on Report Stage. However, the Bill is of such a sizeable nature, it would be more appropriate if we were given an opportunity to consider the wording of the new amendments he proposes to introduce. It would be better, therefore, if Report Stage was taken the week after next because the period between Stages is too short. I am not trying to discommode the Minister but the Bill will not be introduced in the Dáil before next February or March. We want to ensure that it is perfect before it leaves the Seanad.
Question, "That Report Stage of the Bill be taken on Wednesday next at 10.30 a.m.", put and declared carried.
Report Stage ordered for Wednesday, 1 December 1999.
When is it proposed to sit again?
At 2.30 p.m. on Tuesday, 30 November 1999.
The Seanad adjourned at 6.15 p.m. until 2.30 p.m. on Tuesday, 30 November 1999.