Amendment No. 1 is in the name of the Minister. Amendments Nos. 19, 64 and 66 are consequential so I propose that we take Nos. 1, 19, 64 and 66 together.
Local Government (Planning and Development) Bill, 1998 [Seanad]: Committee Stage.
SECTION 1.
Acting Chairman
I move amendment No. 1:
In page 3, subsection (1), between lines 16 and 17, to insert the following definition:
" 'architectural conservation area' means a place, area, group of structures or townscape, taking account of building lines and heights, which-
(a) is of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest, or
(b) contributes to the appreciation of protected structures;".
These amendments will introduce the phrase "architectural conservation area" into the Bill. Planning authorities, therefore, will be able to designate such areas in their development plans. As members will know, the Bill already contains provisions for the protection of places, areas, groups of structures, building heights and townscapes which can be designated in the development plan for architectural, historical, archaeological, artistic, scientific, social or technical interest or because they contribute to the appreciation of protected structures. The Minister for Arts, Heritage, Gaeltacht and the Islands can issue guidelines to the planning authorities on these designations.
Originally we felt that the Bill was clear and comprehensive and that it would lead to greater protection of valuable places and streetscapes, but obviously there was some confusion which was highlighted in the Seanad on Second Stage and by a number of bodies which subsequently made submissions to us. We propose this amendment to ensure there is no confusion on this point.
The amendments will define architectural areas in broadly the same terms as currently included in the Bill and will provide, under section 3, that the Minister for Arts, Heritage, Gaeltacht and the Islands can issue guidelines on preserving the character of designated architectural conservation areas, and provide that planning authorities can include these architectural conservation areas in their development plans. This provision will ensure that buildings which should be protected because of their setting will be protected; that is relevant to one of Deputy Gilmore's amendments.
Under the 1963 Act, planning permission is required for all works to the exterior of a building other than "works which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures".
The inclusion in the development plan of objectives for the preservation of places or groups of buildings will ensure that the works to the exterior of such buildings will require planning permission where they would not fit in with the character of the surrounding buildings within the group. Furthermore, where an application is made for development in an architectural conservation area, the planning authority will be bound to consider the requirement to conserve the area in considering the application. This will afford substantial additional protection to the structures and I hope will clear up whatever confusion arose about the original wording of the Bill.
Amendment No. 19 removes paragraph (b) in section 3 and relocates it. Must a local authority declare architectural and conservation areas? It is a valuable provision but does it mean if this paragraph is removed, the Minister can only issue guidelines in respect of areas which have been designated architectural and conservation areas by a local authority? I understood section 3 to mean that the Minister for Arts, Heritage, Gaeltacht and the Islands could issue guidelines to planning authorities for the preservation of various areas. Will it be the case that guidelines can be issued by the Minister only for individual buildings and designated architectural and conservation areas?
The Deputy is correct in regard to architectural and conservation areas. The Bill will allow local authorities to designate such areas and afford them protection. The amendment does not diminish the protection afforded to individual areas but enhances it.
In amendments Nos. 3 and 19, is the Minister proposing to take the text of section 3(1)(b), insert it in the definition section and refer to the definition in section 3? I support the amendments because the provision is a worthwhile addition to the Bill and it is an important concept to lock into it.
The Deputy is correct in his assumption. It strengthens the Bill considerably and it arose from a number of points raised by Members. We felt that the Bill was very clear but following the debate on Second Stage, and submissions which we received afterwards, it was clear that there was confusion. I hope the amendments will clear it up and meet the concerns expressed.
Amendment agreed to.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 3, subsection (1), between lines 21 and 22, to insert the following definition:
" 'the Minister' means the Minister for the Environment and Local Government, except when the text indicates otherwise;".
I tabled this amendment for the purpose of clarification. At various points in the Bill references are made to the Ministers for the Environment and Local Government and Arts, Heritage, Gaeltacht and the Islands. The amendment will make the definitions clearer and make reading the Bill easier.
The Deputy is trying to insert a definition of "the Minister" as it is outlined in the Bill. It is unnecessary because section 42 cites the Local Government (Planning and Development) Acts, 1963 to 1998, which define the words "the Minister" to only mean the Minister for the Environment and Local Government. Where it is intended to mean the Minister for Arts, Heritage, Gaeltacht and the Islands, the title is given in full. Any other Minister referred to in the Bill will be referred to by his or her full title.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 4 and 5 are ruled out of order because they involve a potential charge on the Revenue.
Amendments Nos. 4 and 5 are important. For example, the application or removal of plasterwork, paint, etc., to or from the interior of a church is an essential part of such works and should be considered in any application under the Bill. I do not understand how there would be a cost to the Revenue other than from a policing point of view.
Amendments Nos. 4, 5, 6 and 7 are similar but amendments Nos. 4, 5 and 7 have been ruled out of order. However, I take the Deputy's point. My amendment No. 6 extends the definition of "works" for the purposes of the Bill to include not only the application of plaster, paint, etc., to the interior and exterior surfaces of protected structures but also the removal of such material from the surfaces. The Deputy spotted this omission in the Bill, which could have had serious consequences if people had felt, for example, that they did not need permission to remove a plaster ceiling or antique tiles. My amendment achieves what the Deputy wants.
Amendments Nos. 4 and 5 not moved.
I move amendment No. 6:
In page 4, subsection (2), lines 27 and 28, to delete "of plaster, paint, wallpaper, tiles or other material to the surfaces of the interior or exterior of a structure" and substitute "or removal of plaster, paint, wallpaper, tiles, or other material to or from the surfaces of the interior or exterior of a structure".
The purpose of the amendment is to delete the words "of plaster, paint, wallpaper, tiles or other materials to the surfaces of the interior or exterior of a structure" and substitute "or removal of plaster, paint, wallpaper, tiles, or other material to or from the surfaces of the interior or exterior of a structure".
This discussion underlines the nit-picking nature of the advice on which you are operating, Chairman. The Minister proposes to extend the scope of the works that may be carried out. If, for example, the Minister had not tabled an amendment and Deputy Clune had, hers would still have been ruled out of order. If, on the other hand, the Minister had proposed the removal of plaster, paint, wallpaper, tiles, roofs, slates, wooden fitting, steps, railings etc., Deputy Clune would be entitled to table an amendment to delete the removal of railings or slates. This is the logic being used. We are allowed to restrict expenditure but not to amend it.
If the Minister had a list which we felt was inadequate we could not say "such other works as the Minister or any other authority may deem appropriate" because that would be widening it. That is an excessively narrow interpretation of the rules in relation to expenditure. Perhaps the Chairman will ask the relevant advisers to reconsider the position in the light of this discussion. It is extraordinary that members are restrained in the intimacy of their definition of works to be carried out in this way.
Amendment agreed to.
Chairman
Amendment No. 7 in the name of Deputy Clune is out of order.
Amendment No. 7 not moved.
Question proposed: "That section 1, as amended, stand part of the Bill."
With regard to amendment No. 7 is the Minister proposing an amendment?
In relation to cleaning?
This is similar to the previous amendment. Cleaning is an important part of any work carried out on structures of such importance. The cleaning of plasterwork is a delicate and intricate operation and should be included in the definition of works.
I appreciate the principle of the amendment. The Deputy is attempting to check unsupervised cleaning of a plaster wall which could be disruptive. It would not be practical to require people to get planning permission to clean a protected structure. The proposed amendment would be very broad in its application. If one took it to its logical conclusion and applied it to its full extent the owner of a structure would need to get planning permission to operate a hoover inside or outside. I know that is not what the Deputy intends.
The principle of the amendment is good and would probably be better dealt with through guidelines and better education for owners of protected structures in their conservation so they are not damaged when they clean them. The amendment would be much too broad in its application and might have the reverse effect to that intended by the Deputy. People would allow structures to become totally decrepit because they would have to get planning permission to clean them. I take on board the principle of the amendment, that there should be guidelines and education on how to treat buildings such as this and clean them.
I understand the Minister's point that if it was extended to every building in the country it would put people off cleaning them. However, intricate plasterwork needs to be protected, which was the intention of the amendment.
On a point of clarification, what might be deemed as of historical and architectural value to the nation at large might not be deemed so by the owner of the premises. If the paintwork no longer exists because of a cleaning procedure that went wrong, it is no longer necessary to protect the building. If someone used caustic soda on paintwork it could be destroyed.
People will be aware that their building is listed or protected and they will have a declaration to that effect, which will also state the works for which they will have to get permission. When the Bill is in operation, the previous defence of ignorance of the historical importance of a structure will be largely removed. If damage is caused sanctions can be applied. I accept Deputy Kelleher's point that they might not be much good if the structure or paintwork is seriously damaged.
In the context of the grants system we are discussing, we may be able to specify more with regards to the cleaning of structures. We could make it attractive for people to follow guidelines carefully in relation to the cleaning of structures. We will look at that.
I wish to refer to the substantial observation of the Bill by the Heritage Council. One of the issues they raise relates to the definitions of "curtilage" and the use of the term "features". It asks whether designed landscapes and features such as freestanding statues, sculptures or works of that kind are deemed to be protected. Do they come within the curtilage of the building or do they need to be provided for separately?
Lines 31 to 37 state that a proposed protected structure means a structure in respect of which a notice is issued under section 6 of the Act or under Part III of the Principal Act proposing to add the structure or a specified part of it to a record of protected structures and where that notice so indicates, includes any specifying feature which is within the attendant grounds of the structure and which would not otherwise be included in this definition. That is how we are trying to deal with that aspect. When one makes a declaration one can specify other features of the house in the grounds or gardens. The guidelines will also give advice on that.
Question put and agreed to.
NEW SECTION.
I move amendment No. 8:
In page 4, before section 2, to insert the following new section:
"2.-In carrying out their functions under this Act, the Minister, the Minister for Arts, Heritage, Gaeltacht and the Islands, and a planning authority, shall have due regard to the Convention for the Protection of the Architectural Heritage of Europe done at Granada on the 3rd day of October, 1985.".
This Bill is intended to give effect to the Council of Europe's Granada Convention of 1985 which was ratified by the previous Government. There has been some criticism of the Bill, notably from An Taisce to the effect that it does not fully comply with the terms of the convention. One of the observations from An Taisce is that this Bill does not comply and so leaves Ireland open to reporting under article 20 of the Granada Convention by its committee of experts for failure to implement the principles embodied in the convention. Rather than conduct an audit of every section of the Bill, to see where it does or does not comply with the Granada Convention, the purpose of the amendment is to put an obligation on the Ministers and authorities to have due regard to the Granada Convention in exercising their functions under the Bill. It is a reasonable provision which should be included in the Bill. If there is any doubt about the Bill complying with the Granada Convention, this amendment would dispel it.
I understand the Deputy's reference regarding the submission from An Taisce, a body for which I have high regard and which works closely with the Department in a number of different areas. However, it is wrong on this occasion.
The effect of the amendment tabled by the Deputy would require the Minister for the Environment and Local Government, the Minister for Arts, Heritage, Gaeltacht and the Islands and local authorities to have regard to the Granada Convention on the protection of architectural heritage in carrying out their functions under the Bill. The Deputy points out rightly and knows from his time as Minister of State that Ireland is a party to the Granada Convention, a convention under the Council of Europe, which relates to the protection of architectural heritage. Its objectives are similar to those of the Bill but are less detailed.
The previous Government ratified the Granada Convention and the legislation it introduced fully complied with the convention with one reservation relating to powers to compel or to require works to be done to heritage structures or to do the necessary works themselves when required. I understand this issue related to property rights under the Constitution. That was the only reservation the previous Government had with this. The Bill will enable that to be overcome so that we can accept the Granada Convention in total. The related Bill on the national inventory of architectural heritage, which is going through the House under the guidance of the Minister, Deputy de Valera, will also assist us in meeting our obligations under the convention. That Bill is also on Committee Stage this week. Section 2 requires a local authority, for the purpose of protecting structures of special architectural or historical interest, to include a record of such structures in their development plan.
The amendment is unnecessary and would cause confusion by requiring local authorities to refer not only to this Bill but also to the Granada Convention, when the Bill is more comprehensive than the convention. I hope the Deputy will see his way to withdrawing the amendment with my assurance that we comply fully with the Granada Convention and have done so since the previous Government signed the convention, its reservation notwithstanding. The Bill strengthens rather than weakens the convention. I am not sure how An Taisce got it wrong on this one.
I do not see from where in his contribution the Minister's conclusion arises. If it is the case that the Bill not only complies with the Granada Convention but goes beyond it, I do not see the difficulty in including it in the Bill. Where will the confusion arise?
Were the amendment to be included, it would be similar to including a provision in legislation transposing an EU directive into national law and requiring a local authority to have regard to the directive when the purpose of the legislation is to implement the directive. It is unnecessary. I am a great believer in keeping law as simple as possible. There are enough people in the Four Courts to make it sufficiently complicated were the Bill ever to end up there.
Amendment, by leave, withdrawn.
SECTION 2.
Acting Chairman
Amendment No. 9 is ruled out of order for the reasons stated already.
Will the Chairman remind me of that reason?
Acting Chairman
A number of amendments have been tabled which could increase the size of the record of protected structures. The amendments in question are Nos. 9, 14, 28, 30, 31, 69, 70, 71, 72 and 73 in the name of Deputy Dukes and amendments Nos. 11, 12, 25 and 77 in the name of Deputy Gilmore. These amendments involve a fundamental principle which is that amendments on the list can be subject to restoration and endangerment notices and the costs of the works specified in the notices are ultimately funded by the Exchequer.
Therefore, the amendments must be ruled out of order as they involve potential additional charges on the Exchequer.
With respect to the people who gave that advice, that represents the pluperfection of bureaucracy. They are worried about the size of the record. As the Bill is written, there could be an enormous number of buildings on the record, but as long as they were buildings and described as such or as structures, it would not matter. The Bill is written to comprehend a large number of structures. If four structures located near each other or in some type of harmonious ensemble were described as a group of structures rather than four structures, I am told they could not be entered in the record. That is ludicrous. If my amendments were allowed to be considered, there might conceivably be cases where buildings or a group of structures would be listed as one group of structures rather than four, five or six separate structures which would mean the size of the list would be smaller than it would have been to start with.
However, I will not waste the time of the committee arguing with these pluperfect bureaucrats. I invite the Minister, should he care to - I believe he is of the same mind as us on this - to table a similar amendment on Report Stage when I am sure we on this side will be delighted to support it.
I agree with Deputy Dukes. We are back to the issue we discussed before we dealt with the Bill. This is making a nonsense of the work of the committee. It is perfectly valid for the committee to seek to increase the size of the record. We are dealing with the protection of our architectural heritage. There has been and is a variety of views as to the extent to which our architectural heritage should be protected, the extent to which buildings and structures should be listed, how many should be listed and what degree of protection should be afforded to them. It is perfectly in order for Members to seek to have the record enlarged.
The problem is that it is now deemed that an amendment which seeks to increase the size of the record, the number of listed buildings in other words, is somehow a charge on the State and is out of order. It is perfectly in order for us to seek to do that because that is what the Bill is about. The core of the debate, if it is to have any meaning in the committee, is whether the Bill, as presented by the Minister, is adequate to do the job and provide protection for all the architectural structures we think should be included. I do not normally do this but I am directly challenging the ruling of the Chair in this matter. I ask the Chair to reconsider this matter.
It does not follow that to increase the size of the record or list necessarily incurs an additional charge on the State. For example, one amendment in my name that has been ruled out of order seeks to replace "necessary" with "desirable". I seek to lower the test by which a building is or is not included. According to the draft of the Bill, the test is that it would have to be necessary for the protection of the building for certain things to be done. I seek to replace "necessary" with "desirable" because that lower level of test would take a lower level of cost to establish that. Apart from the decision denying us our right to put forward these amendments, it is also illogical and does not follow that each of the amendments ruled out of order would have involved an additional cost. I appreciate we are dealing with Deputy Dukes's amendment but I ask that this be reconsidered as it makes a nonsense of our discussion. We are entitled to seek to pursue a larger and more comprehensive listing of structures, which is what the debate is about.
The text of the section, as written, states "for the purpose of protecting structures or parts of structures". If the Minister had provided a text which read for the purpose of protecting structures which are of special architectural or historical significance and we had tabled an amendment adding "parts of structures", it would have been ruled out of order on the grounds that it would have involved a potential extra charge to the State. What would we do? When it comes to applying this, various people who have the right to designate structures may decide to designate a part of a structure as provided for in the Act. However, as it does not provide for parts of structures, entire structures will have to be designated. I do not know if that would involve an extra charge but it seems likely that it would. The logic behind the ruling out of order of these amendments has nothing to do with the real world. It is an entirely bureaucratic construct which has nothing to do with the objective of this Bill.
Acting Chairman
I do not think I can reconsider my decision but perhaps the Minister could deal with the general issues members are trying to pursue.
Deputies may be taking the three different sections in isolation. These various amendments, particularly amendments Nos. 9, 11 and 12, would require local authorities to include in the record of protected structures not only the buildings of special architectural interest but those of interest due to their setting in a wider group. All the other amendments are consequential or parallel, including those referring to transitional arrangements. If Deputies look at this again, they will see the Bill proposes two different things which are relevant to what we are discussing. It proposes a definition for protected structures and individual buildings that go on to lists. Those are individually protected and there are onerous obligations on those who own these buildings. Let us take a square as a good example. It may be declared a conservation area in a development plan and there are certain implications under planning law. Not all the houses may merit protection but they would be listed separately. Particular rules and regulations apply to those. To put the whole square on the list, as seems to be intended, means that houses with no intrinsic merit would fall under the same rules and regulations as the listed buildings.
If Deputies look at this section again in conjunction with section 33, they will see that what they are trying to achieve is being accomplished. If we go down the route proposed by these amendments we will end up including buildings on lists solely by reference to their setting and that may not be necessary. Given what has transpired, if Deputies still feel that their concerns are not being met, I will go through this with them before Report Stage to ensure that what we want can be achieved. Looking at this in isolation gives a slightly distorted view and if we can do anything between now and Report Stage to meet members' concerns we will do so.
That is a very reasonable request from the Minister and I have the same request to make of him. He has just made my point for me. I remind him that in his first amendment introducing architectural conservation areas he refers specifically to a group of structures and he goes further by referring to a townscape.
The Minister referred to section 33, which introduces an amendment to section 19(2) of the principal Act. It refers to preserving the character of places, areas, groups of structures, building heights and townscapes. The Minister already accepts that there are places where groups of structures are important to look at. I am prepared to think of what the Minister has said between now and Report Stage, but I reopen my invitation to the Minister to consider whether, on reflection, he might import an amendment similar to mine on Report Stage.
I thank the Minister for his helpful offer to look at this area. I do not know how we might do this procedurally. Perhaps we can return to it later on Committee Stage. I do not necessarily want to pursue the debate now. The Minister in his reply raised an issue we might need to think about. I understood he was drawing a distinction between the group scenario, for example, a town or city square, and individual buildings. Was the Minister saying that one could have a listing for, say, a square but that unless the buildings which composed that square were individually listed they would not necessarily be protected? This raises a question about the purpose of the section and the integrity of a location such as a square. It may well be that buildings on a square are not of great architectural merit, but as part of the square in its totality they are of merit. I would not like the position where, on the one hand, one could list a square but, on the other, allow for the demolition of individual buildings or damage to the exterior of individual buildings which, in turn, would damage the integrity of the square. I am not clear how this distinction can be reconciled, but it needs to be reconciled before we agree the section.
Perhaps dialogue between Committee and Report Stage will help to clarify the matter. The term "conservation areas" means that a particular area is important architecturally and we can give a blanket designation to a square itself. Listing a building has a range of other effects, as provided in the Bill. With respect to architectural conservation, the planning authority would apply its policies to protect the outside of buildings, windows, street signage and so on. However, strict planning controls are included for the interior of protected buildings. This means that if a building is on a square it cannot be knocked down or diminished to change the character of the square. The whole square must be protected because it is in a conservation area. However, if the building is listed, the interior must be protected and strict planning controls must be applied. This is the reason for the distinction between both of them.
I am aware this may cause some confusion, but members of the committee agree that interiors and exteriors of buildings must be protected and listed and that conservation areas must be drawn up. However, I will endeavour to have the matter clarified further. One can have a protected building within a square or in a conservation area - it is not a matter of one or the other. In most cases one will have both - the conservation area and the individual buildings, most of which, if not, will be listed.
I will discuss the matter with officials and members of the committee and if further clarification is needed, I will table an amendment on Report Stage.
Amendment No. 9 not moved.
Acting Chairman
Amendments Nos. 10, 18, 26, 33, 39, 48, 59, 63, 65, 67, 74 and 75 are cognate and will be taken together by agreement.
I move amendment No. 10:
In page 4, subsection (1), line 41, after "artistic," to insert "cultural,".
I have said that the definition of "architectural heritage" was based on the terms used in the Granada Convention. However, the Granada Convention categories and the definition of the Heritage Act, may be inadequate. On Second Stage, Deputies queried why "cultural" was not included among the categories which could be protected. In the interest of being as comprehensive as possible, and in consultation with the Minister, Deputy de Valera, I tabled this amendment to include the protection of buildings with cultural associations.
This is an entirely commendable amendment.
My colleague, Deputy Michael Higgins, will be greatly relieved that the Government has acknowledged there is such a thing as culture. He was greatly offended at the omission of the term "culture" from the title of the Minister, Deputy de Valera's, Department.
Amendment agreed to.
Acting Chairman
Amendments Nos. 11 and 12 have been ruled out of order.
I do not wish to labour the point, but the Chairman said earlier that we could re-introduce the amendments on Report Stage.
Acting Chairman
That is for the Deputy to decide.
I do not wish to repeat what I said earlier, but I think we have a right to pursue the matter. Given that the Bill will be discussed at a later stage, the Chair should consider that permitting us to table the amendments on Report Stage may not get us very far. It could put the Ceann Comhairle in a bit of quandary if he were asked to allow amendments which the Chair ruled out of order. I ask the Chair to reconsider allowing the amendments. I am conscious that we may be creating a precedent in relation to the interpretation of the rules in this matter and I would not wish to be a party to that, although I wish to pursue the issue.
Amendments Nos. 11 and 12 not moved.
Acting Chairman
Amendments Nos. 13 and 17 are cognate and will be taken together by agreement.
I move amendment No. 13:
In page 5, subsection (2), line 2, to delete "may" and substitute "shall".
The purpose of the amendment is clear. Subsection (2) leaves it to the Minister,
after consulting with the Minister for Arts, Heritage, Gaeltacht and the Islands, to prescribe the form of a record of protected structures. I know there will be an answer to this to the effect that my amendment is not necessary on the grounds of the arcane linguistic gymnastics indulged in by the parliamentary draftsman. However, to the lay person, the text of the Bill as it stands appears to leave it as an option to the Minister, whereas what we really need is to make sure that the Minister and any successor he may have will do these things. I do not believe we will do violence to the office of the Minister by saying "shall" rather than "may". I hope it is the Government's intention that this form of record of protected structures will be prescribed. I hope the Minister agrees with me.
As one who tussled with various Ministers over a two year period about the words "may" and "shall", I have a mind to accept the Deputy's amendment. There is no point passing this legislation if we are not fully committed to its implementation. We are absolutely committed to its implementation. A consultant has been appointed by the Department of Arts, Heritage, Gaeltacht and the Islands to draw up the statutory guidelines under the Act and to advise on the record of protected structures. The Deputy is right, it does not make a huge difference but "shall" probably puts the case a little stronger. I accept the amendment.
Amendment agreed to.
Chairman
Amendment No. 14 has been ruled out of order.
Amendment No. 14 not moved.
Question proposed: "That section 2, as amended, stand part of the Bill."
I will not speak at length on this matter. The proposal in amendment No. 14 was put to us by all the groups concerned, including An Taisce and the Georgian Society. That is what is likely to happen and is what should happen. Rather than being an extension of the scope of coverage of the Bill, this would simply provide a very useful rule of thumb. The Minister will forgive me for being parochial, but I cannot think of any structure present in my constituency since 1870 or longer that should not be a protected structure nor can I think of any structure with which I am familiar - I know of a good many of them - in the Minister's constituency that was built before 1870 that would not qualify to be regarded as a protected structure. The sad part of it is that so many such structures are in such a dilapidated condition they are of serious danger. We should look on this as a very useful rule of thumb rather than a potential expansion of the scope of the listed buildings to be protected.
I know where the Deputy is coming from. When passing legislation such as this, we would not disagree with such sentiments. In this case the amendment would have the effect of requiring all the structures constructed before 1870 to be included in the record of protected structures unless they were otherwise removed. I have no doubt that anything constructed before 1870 will be included on a list. The danger of having a blanket or automatic protection is that one could end up with cowsheds etc. being included. It may be valuable to list such structures in some cases. The guidelines will be important in this respect and almost prima facie we will say that anything before a particular date - it may not be 1870 - are automatically included in the inventory. The guidelines and the national inventory on architectural heritage will include all these structures. While I have no difficulty in accepting the spirit of the amendment, I am wary of accepting it because we could end up with huge lists including many structures that do not merit inclusion. We are to put obligations on people to list structures because of their intrinsic merit, but we would be defeating a common purpose in that if we include too many structures, local authorities would not be as diligent as they should be.
Question put and agreed to.
SECTION 3.
Chairman
Amendment No. 15 has been ruled out of order and, as a consequence, amendments Nos. 16, 43 and 78 also fall.
The reason for making a proposal of that kind is to recognise that with the best will in the world not all the wisdom that can be brought to bear on these matters resides in the Department of Arts, Heritage, Gaeltacht and the Islands or the Department of the Environment and Local Government, as is recognised by them in that they regularly call on the advice and services of experts from outside the Department, and they are perfectly right to do so. It also recognises that there are a great many other groups who have considerable expertise and insight in these matters and who have something worthwhile to bring to our policy. It also recognises, although we may not like it, that public authorities have for much of the time been less than diligent in the discharge of their duties in this regard. I am not criticising anybody in particular. Not all local authorities acted as energetically as they might and at various times in the past certain arms of our public administration have not been as diligent as they might have been.
The increasing attention that heritage issues have received in recent years has been due in part to the fact that our public authorities are, like the rest of us, learning and coming to a greater appreciation of the value of things which we previously overlooked. It is for that reason that I agreed with the suggestions put forward by a number of other bodies that it would be useful to have an external source of advice of this kind. We should also recognise that such advice should not be entirely one-sided. Were it to be in order to make a proposal such as this, it would include people other than lobby groups, pressure groups and expert groups. It would include people who have their feet on the ground and not in the mud. It is essential that we have that kind of advice available to us.
While I recognise that my amendment is out of order, it is a pity the Minister does not see fit to make such a proposal to create a permanently available centre of advice. Broadly speaking, I hope the Bill will be passed in its present form. Both Ministers have important powers to exercise and will require local authorities to undertake many important matters. It would be useful if they had at their disposal some group of people, permanently available to them, who could focus the considerable expertise that is available in these areas for the benefit of the implementation of the Act.
I agree with Deputy Dukes on this point. On Second Stage I made the point that this is an area of public policy where the people have been far ahead of the State and its various organs. Going back over the past 20 or 30 years, one can think of issues like Wood Quay, and other issues that arose in relation to preserving Georgian Dublin, including Hume Street. There was a whole range of such issues where people, either in an organised way or sometimes spontaneously, literally rushed to the barricades to defend buildings they considered to be of value. There is a body of opinion and expertise in architectural heritage which should be harnessed rather than leaving the matter entirely to the formal administrative and governmental system.
Whether something is of architectural value is a matter of judgment. The collective aesthetic sense of public opinion - some of which is organised and some quite individual - should be harnessed to advise on this area. Some structure should be provided for that.
Rather than setting up more bodies, I tend to take the general view that we could do with fewer more focused bodies. Perhaps the House, through its committees, would be able to keep a closer eye on developments. That is a philosophical point of view that I hold.
The 1996 interdepartmental report stated that a central authority could either be nominated as part of the heritage service of the Department of Arts, Heritage, Gaeltacht and the Islands, or that such a service could be established by the Heritage Council itself. The report recommended that the authority would be established initially in the Department of Arts, Heritage, Gaeltacht and the Islands. In fact, Dúchas, which is the heritage service of the Department, has been nominated by the Government for this role. The arrangements are already being put in place to enable Dúchas to fulfil the role effectively when the Bill is enacted.
I would not disagree with the point made by Opposition Deputies that people with expertise and knowledge are required. Nobody has ever challenged the professionalism of Dúchas and the role it plays. In addition, the Heritage Council is available and works closely with Dúchas and my Department in architectural matters. Setting up a further body, outside Dúchas or the Heritage Council, would represent a duplication of resources and effort, and it would not be a good move. It is important that an established body, such as this one, should be involved in this area initially. Perhaps in years to come it may be necessary to widen that remit, but I would be wary of establishing a new separate body. It would not meet our needs at all.
Amendments Nos. 15 and 16 not moved.
I move amendment No. 17:
In page 5, subsection (1), line 12, to delete "may" and substitute "shall".
Amendment agreed to.
I move amendment No. 18:
In page 5, subsection (1)(a), line 15, after "artistic," to insert "cultural,".
Amendment agreed to.
I move amendment No. 19:
In page 5, subsection (1), lines 17 to 21, to delete paragraph (b), and substitute the following:
"(b) for preserving the character of architectural conservation areas,".
Amendment agreed to.
Chairman
Amendments Nos. 20, 21, 22, 23 and 24 are related and may be discussed together by agreement.
I move amendment No. 20:
In page 5, subsection (1), line 24, after "structures." to insert "Unless two-thirds of the elected members reject in a formal vote the guidelines issued under this section, the planning authority shall act in accordance with any such guidelines.".
The reason for this amendment concerns how the planning authorities react to guidelines. I am proposing an addition at the end of subsection (1), as it now stands, that would require the planning authority to act in accordance with such guidelines, except in certain specific circumstances.
Deputy Gilmore has also tabled an amendment that takes a different approach to this matter. He envisages bringing in a recourse to the High Court. I am not indissolubly wedded to the form of my amendment, but since we are dealing with local authorities we should try to find a resolution of the matter within the structure of local authorities. As the Minister knows, I believe that once we go to the trouble of electing a local authority we should give the elected members functions. That is why my amendment takes this form. By and large, this means the guidelines that would be issued by the Minister for Arts, Heritage, Gaeltacht and the Islands would have a substantial effect. In the normal case, local authorities should accept those guidelines. However, there may be cases where there is a reasonable argument not to accept them, but it should be a powerful argument. That is why I would follow the existing precedent whereby if local authorities wish to do certain rather muscular things it will require a special kind of majority of a local authority's members to do so. Hence the form of this amendment.
Deputy Dukes and I are dealing with the same problem in slightly different ways. It is perhaps best, however, if we deal with the problem. The concern is that individual local authorities may not accept the recommendations which are made to them by the Minister. The only requirement which the Bill, as presented, puts on a local authority which rejects a recommendation of the Minister is that it has to write to the Minister and give a reason for its decision. We should strengthen the role, authority and powers of local authorities. However, we must acknowledge that they have tended not to carry through the obligations placed upon them by legislation enacted by the Oireachtas. They did that for a variety of reasons, resources being one of them. In recent years all types of legislation, particularly legislation dealing with environmental protection, has been foisted on local authorities. New obligations have been placed upon them without resources being provided to enable the authority to fulfil them.
Perhaps some local authorities have taken the view that not accepting some of the Minister's recommendations may relieve them of certain obligations, expenses, etc. Perhaps some local authorities apply less rigorous planning and conservation regimes. Some of them may have decided to take a more lenient view of what constitutes architectural heritage. This all leads to a degree of inconsistency.
In other countries a central authority, rather than a local one, makes decisions about architectural heritage sites, creates records, lists, etc. In many countries a central authority prescribes which architectural structure can be preserved. Various local authorities, etc. are then directed to comply with its decision. In this Bill we seem to be marrying the central role played by the Minister for Arts, Heritage, Gaeltacht and the Islands in making recommendations with the local authority or planning authority which carries out the real work. These authorities can escape their obligations or reduce them by limiting the number of recommendations they can accept, provided they notify the Minister in writing. This loophole needs to be closed. Like Deputy Dukes, I am not wedded to the formula that I proposed which has recourse to the courts. I would prefer if we could find a different method of dealing with this issue.
There is a great deal of merit in Deputy Dukes's two-third reserved function formula. There is precedent in the planning areas for that kind of weighted voting, for example, in the area of material contraventions to development plans where a three-quarter vote is required. This loophole needs to be closed off and we need to apply our collective ingenuity to devise a way of doing it.
I agree with Members that this section contains a loophole which allows local authorities to opt out of their obligations. In other words, if local authorities disagree with the Minister's recommendations they can write a letter to her stating that they do not apply to them for a variety of reasons. A number of local authorities have not compiled a list of buildings in their areas that would have architectural, archaeological or heritage relevance. This is an example of their attitude to this area. It is important that we close the loophole and stop local authorities opting out of their obligations. It is worth considering the proposal made by Deputy Dukes where two-thirds of elected members may reject the guidelines in a formal vote.
These amendments attempt to interfere with the discretion of local authorities to make decisions about inclusions in their record of protected structures and on the objectives of development plans. I accept some of the reasons people feel it is necessary to interfere with decisions made by elected members. Deputy Gilmore made a fair point about local authorities and their past record, for pursuing enacted legislation. We still have that difficulty. As he acknowledged, successive governments enacted legislation which was then passed down to local authorities but money was not provided to enable them implement that legislation. Local government and its finances is not the same as it was in the past. This Bill provides moneys for local authorities to fulfil their obligations. Local authorities can no longer use a lack of funds as an excuse. Most local authorities now receive substantially more money than they did in the past. They have extra money.
As a result of my background I have a philosophical attitude towards local government and local authorities. I would be reluctant to incorporate anything into this Bill, or any other Bill, that would diminish the rights of elected members. Local authorities have a much greater awareness of the need to protect architectural heritage. When I discussed this Bill with local authority members I received a positive reaction to it and to the powers that are being given to local authorities in this area. I am sure other Members have had the same experience. Local authority members were more than willing to accept advice or recommendations from Dúchas or any other bodies.
Local authorities can only reject a Minister's recommendation under proper grounds. They must have regard for this Bill. They cannot reject a list and give spurious reasons for not accepting it. They must, in compliance with the legislation, have regard to it and put forward specific reasons why they are not including a site in it. By specific reasons I mean they have to be within the context of the Bill and the aims of their development plan. As Members will be aware, if they do no do that their decision will be open to judicial review. In other words, their decision can be challenged. For the same reason, on amendment No. 20 which suggests a two thirds majority to reject guidelines or a recommendation, although I am aware of the planning legislation which had a specific purpose, there should be a simple majority for decisions of local authorities unless there is evidence and compelling reasons to go against the norm of a simple majority. Perhaps in four or five years the Deputy will be proved right. However I do not consider that compelling evidence is present. I may be proved wrong in four or five years but I do not expect to be.
On Deputy Dukes's amendment No. 23, the Minister for Arts, Heritage, Gaeltacht and the Islands has more than one opportunity to recommend structures. The structures can be recommended at any time and the decisions taken regarding their inclusion on the list will be made by the planning authority. It happens not only once every five years, it is an ongoing process and it meets the Deputy's concern.
Deputy Gilmore's amendment would enable the Minister for Arts, Heritage, Gaeltacht and the Islands to apply to the High Court for a declaration on whether a structure should be included on the record of protected structures when a local authority decided not to comply with a recommendation. I acknowledge what the Deputy said. It would be inappropriate to include this in the Bill, particularly as the concept behind this Bill is partnership, working together and co-operation between my Department, the Department of Arts, Heritage, Gaeltacht and the Islands and the local authorities. This amendment is unnecessary and may give the wrong signals.
As an aside, and to allay the Deputy's fears, if the Minister for Arts, Heritage, Gaeltacht and the Islands considers a local authority to be acting unreasonably under this Act, she may use her powers under the National Monuments (Amendment) Act to declare a building a national monument. This is another route apart from judicial review.
I am a little confused by Deputy Clune's amendment, the effect of which would be to remove the requirement on the planning authority to notify the Minister for Arts, Heritage, Gaeltacht and the Islands if it decides against her recommendations. I am mystified as why that requirement should be removed. When a local authority makes such a decision it is important that it informs the Minister so she can follow either the judicial review route or resubmit it. Perhaps we are at cross purposes on this.
My intention was to remove the privilege from local authorities to disregard the guidelines laid down by the Minister for Arts, Heritage, Gaeltacht and the Islands.
The Deputy's amendment would not have that effect. The amendment proposes the deletion of subsection (3) which would remove the obligation on the local authority to inform the Minister that it has ignored her recommendation. I understand the Deputy's point, but the amendment would have a contrary effect to what the Deputy intends.
I have two questions for the Minister. If a local authority turns down a Minister's recommendation and replies to the letter stating that it is not accepting her recommendations, what can the Minister do? From my reading of the Bill, the Minister can do nothing except try to make the structure a national monument. This is likely to become a problem in relation to the type of structure which would not normally qualify for national monument status. It is more likely to arise in grey areas. By the time somebody gets around to doing something about it the building will be gone. The net effect is that it is not protected. What can the Minister do if a local authority refuses to list?
Second, the planning authority makes this decision. Is the planning authority composed of the elected members of the council? It is not clear that it is. For example in section 5, which also refers to the planning authority in relation to the addition or subtraction of structures from the list, specific provision is made for that to be exercised by reserved function by the elected members of the council. There is no such stipulation in relation to section 4. Who makes the decision? Does the county manager make the decision and send the letter back? It is not clear that the elected members make the decision in section 4.
On the first question, provided a local authority acts in a reasonable manner and has had regard to the Act, it makes the decision. If the Minister feels it has acted unreasonably or has not had regard to the Act or its inventory of listed buildings, she can take action against the local authority. This is an additional power to local government and local authorities and we need to accept that. It is the decision of the local authority and it will be answerable to the electorate for its decisions. If it is an unreasonable decision which has not had regard to the spirit and letter of the law, people can take legal action against the local authority. It is primarily a matter for the local authority.
On the second question, section 4 relates to giving recommendations to the local authority for the protection of buildings. The protection is afforded under section 5. Section 4 is an enabling provision and section 5 makes it a reserved function of the members.
To clarify, must the reply to the Minister's letter stating that it does not accept the recommendation be made by resolution at a meeting of the council?
Yes. It must be done in public.
It is clear from the Minister's answer on where authority lies that every decision in the context of sections 3, 4 and 5 is a reserved function. Section 5 specifically provides for a reserved function. That is right because in the normal course of events the activity set out in section 3 would be the adoption of a development plan by the planning authority. Section 5 allows additions to be made in other circumstances but one would expect the bulk of the work normally to be done in the adoption of a development plan. Section 3 requires the Minister for Arts, Heritage, Gaeltacht and the Islands to give guidelines to local authorities which they would use in doing this part of the work on their development plan and in adding or subtracting buildings in between decisions on development plans. Since it is a reserved function, it is elected members who have to carry it out, and they should have to have a very good reason for rejecting recommendations or guidelines.
In section 4 we bring the process down to the detail where the Minister for Arts, Heritage, Gaeltacht and the Islands may in this case make recommendations about specific buildings. The Minister will note that I did not propose using the word "shall" there because it is a different context. In that case the Minister is talking to a planning authority about a specific building. The guidelines and development plan are in place, buildings are listed, and now the Minister is saying that a specific building which has not been included up to now should be included. There the elected members, in the exercise of their reserved function, should have to have a very good reason if they disagree with the Minister. That is why a procedure analogous to the one we use for material contraventions would be appropriate. It leaves the matter to be decided by the elected members of the local authority, and I am in favour of that because we do not allow enough things to be decided by the elected members of local authorities, but it is reasonable to require that they get a special kind of majority if they want to do something different from what is being represented by one of the tutelary Ministers of this legislation. That is why I have proposed the two-thirds majority approach in my amendment No. 21.
It is reasonable to say that if we require members of local authorities to get a specific majority on their side in the case of the contravention of a county development plan, it is equally reasonable to say that in rejecting guidelines in the context of this Bill or in rejecting a specific proposal for the inclusion of a specific building in the context of this Bill they should have to act in roughly the same way. I take the Minister's point that what I am proposing in relation to section 23 has been provided for.
I do not want to repeat the point I made earlier on the question of special voting majorities in certain circumstances. There is an exception in relation to the planning Acts in the context of material contraventions and so on, but I would be reluctant to extend that principle to other legislation, particularly when we are introducing this legislation in a spirit of co-operation with the two Departments and the local authorities working together. Perhaps I will be proven wrong as to how local authorities act. I do not expect to be, and it is something that could be considered if it arises. At a time when we are trying to devolve more powers to councillors, I would be reluctant to include a stipulation that a simple majority would not be sufficient to pass or reject something. Therefore, I cannot accede to the Deputy's request.
Amendment put and declared lost.
Question proposed: "That section 3, as amended, stand part of the Bill."
Does this Bill or any of the other planning laws allow for the relocation of a monument or building where a city or county development plan is brought in and subsequently found not to be in the spirit of this legislation? If a monument is in the way of a development, can it be moved physically from one place to another? For example, a main drainage scheme is being developed in Cork, and parts of the city wall might be in its way. Is there a provision in the legislation or in the National Monuments Act whereby it could be moved elsewhere and preserved?
I am not aware of any such provisions. Perhaps in terms of environmental impact assessments or the national monuments Acts there is some stipulation. I will look at that. Generally speaking, monuments or archaeological features must remain in situ and a way has to be found around them.
Many more artefacts and monuments will be brought in under this legislation.
That is something we can look at because it is a valid point.
The Select Committee adjourned at 4 p.m.