On adjourning last week, the Select Committee had completed consideration of amendment No. 20.
Local Government (Planning and Development) Bill, 1998 [Seanad]: Committee Stage (Resumed).
SECTION 3.
Question again proposed: "That section 3, as amended, stand part of the Bill."
Question put and agreed to.
Amendments Nos. 21 to 24, inclusive, not moved.
Section 4 agreed to.
SECTION 5.
Amendment No. 25 is out of order.
In the Chairm an's absence at the previous meeting, we discussed this and a number of other amendments which were ruled out of order. We asked the Chair on that occasion to reconsider the decision to rule these amendments out of order. As I understand it, they were ruled out of order on the basis that they imposed a potential charge on the State. Amendment No. 25 would not impose a potential charge on the State because it does not relate directly to the State but to local authorities. In addition, the effect of the amendment would involve less of a commitment in terms of resources and finance on the part of the local authorities required to implement it than would the original provision. Therefore, the decision to rule the amendment out of order is meaningless. Has the decision to rule these amendments out of order been reconsidered since our previous meeting? Has the Chairman had an opportunity to reflect on this matter in light of the information and advice he received in the interim?
I apologise, Deputy, but the decision to rule these amendments out of order must stand.
I wish to place on record that I dispute that ruling, which is meaningless and makes no sense in this instance. I seek the guidance of the Chair with regard to how we can deal with the issues which are the subject of these amendments.
The Deputy is free to table his amendment on Report Stage.
Will I be in a position to resubmit the amendment as it stands?
The Deputy should closely examine the wording used.
The amendment merely seeks to substitute one word for another. There is not much scope to use one's imagination in that regard.
I do not have much scope either.
I am beginning to get that message.
I cannot rule that an amendment is in order if it has already been ruled out of order.
I will resubmit the amendment on Report Stage.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 6, subsection (1)(a)(i), lines 15 and 16, after "artistic" to insert "cultural,".
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
I wish to draw attention to what I was seeking to do in amendment No. 25. As drafted, the Bill states that a planning authority may add or delete from its record particular structures. In the case of the addition of a structure, a local authority may, by a vote of its members, add a structure which is necessary in order to protect another structure.
Amendment No. 25 advocated replacing the word "necessary" with that of "desirable" because in my opinion use of the former word will lead to litigation. Section 5 requires that in order to add a structure to a list, that addition must be "necessary" in order to protect another structure, while sections 6, 7 and others establish a procedure for the inclusion of such additions. Under that procedure notices are required to be sent to the owner of the building and a period of time must be allocated for submissions to be made etc. The term "necessary" will cause major difficulties in that regard. The amendment sought to include a term in the Bill which would leave this at the discretion of a council. In other words, if a council felt it was "desirable" to add a structure, which would be a lesser test than that implied by the use of the word "necessary, provision for this should be made in the Bill.
I do not wish to belabour the point about the amendment being ruled out of order. However, I would argue that using a provision which reduces the standard of proof a local authority will be obliged to offer will make it less onerous on that authority to make its final decision. As the Chairman indicated earlier, I will be able to pursue this matter on Report Stage and I ask the Minister to consider my point. If local authorities are obliged to make a decision based on whether an addition is necessary, there will be a need to produce reports from experts, specialists etc. at local authority meetings and, ultimately, certain matters will eventually go before the courts. Therefore, if a local authority believes it is a good idea to protect a building, it should be free to list that building subject to the procedure set down in the Bill. The term "necessary" will give rise to a range of problems in the future.
I support Deputy Gilmore's argument. If members of local authorities or those making representations to them want to make their point, they will say that the Bill should state that a building "must" be protected and not that it is a "good idea" to protect it. If they have any sense, the term "necessary" should be used in every instance, then the distinction between it and the term "desirable" will become irrelevant. The decision to rule the amendment out of order is a matter of pure semantics. The proposition is that "desirable" provides a less stringent test than "necessary" and that something can be desirable without being necessary. However, nothing can be necessary without also being desirable.
As stated earlier, this is a bureaucratic pluperfection. All it means is that people will say that a course of action is "necessary" rather that its being merely "desirable". Local authorities will produce various reasons for the necessity of an action and people will argue the point far more than they would if the term "desirable" provided the test. It is bad law to phrase the legislation in such a way that it invites people to go to the lengths that Deputy Gilmore mentioned.
I take the point. When one uses words such as these in legislation, whether it is "desirable" or "necessary", people will argue their definition. While accepting the points raised by the Deputies, I do not know if the legislation can be further tightened. If one uses "desirable" rather than "necessary" and a local authority does not take its obligations seriously under this Bill - there was a famous case involving the grammar school in Drogheda - and if it sees a building such as that going to rack and ruin, it decides whether to save it. The local authority might not have the same notion of what is desirable as others in the community and could say that it is not desirable because it will cost money or cause other problems, or that it just does not have the personnel to look after it. Those are valid reasons in its eyes for not taking it over.
I understand the Deputies' argument, which is the opposite side of the coin where a local authority is not committed to the full implementation of this legislation. Deputy Gilmore indicated that he will resubmit his amendment on Report Stage and we will certainly have a look at it. However, whichever word is chosen it is one side or the other of the same coin and one could end up with the same difficulties. I do not know if it can be tightened up legally. I prefer to use the word "necessary" because in a sense if a building is allowed to decay and does not get the attention it should and there is a danger to it, one can say that it is necessary that something be done whereas a local authority can argue that it is not desirable because of financial constraints, etc. We will look at this again and I ask the Deputies to review their amendments in the context of what I have said. If a word or phrase can be used to tighten this up in the way we want without giving an out, I will look at it. The word "necessary" is better than "desirable", but perhaps both words need to be clarified.
That was a very helpful intervention by the Minister and we should reflect on it. However, in the context of section 5 one of the tests that the local authority must consider is whether a recommendation must be made under section 4, which is fine. It does not have to agree with the recommendation, unfortunately, but must consider it. The Bill states "where the authority considers that in the case of an addition, the addition is necessary in order to protect the structure or a part of the structure." The word "necessary" in that case allows the local authority such as that described by the Minister to say that it is not now necessary to add it because the building has not deteriorated to the point where the case will be lost if it does not do something, whereas if the local authority must consider the addition on the grounds of whether it is desirable, it can do so at any point to protect the structure from further deterioration.
It is because it will be read that way that those who rule on these issues have decided that the word "desirable" exposes the State to a greater risk of having to spend money than the word "necessary". Meanwhile, the whole thing would go to hell in a wheelbarrow and buildings would just deteriorate more than we would wish.
I will accept the addition of the words "necessary and "desirable" rather than a substitution subject to the advice of the Attorney General's office because it covers both sides of the coin.
The Minister can make that amendment but we cannot even propose it given the current dispensation. If the Minister is willing to do that, I assure him that he has my support.
The Minister's suggestion is helpful but, obviously, he must get the advice of the Attorney General. I am trying to avoid a situation where local authorities in making decisions end up getting snowed under by expert reports on whether something is necessary and there will be possible litigation down the line. Another consideration is that this is a provision to add to an existing list and, therefore, a local authority already has a list of the buildings that are required following the recommendations it has received from the Minister for Arts, Heritage, Gaeltacht and the Islands. My concern about the term "necessary" relates to the question of making additions to that list. If the building is not at immediate risk, it could be said that there is no risk and, therefore, it is not necessary.
Section 6 provides for a procedure which takes four to five months to complete. A great deal could happen to a building in that time if some risk is attached to it. A provision is required whereby if a local authority judges that a structure should be added to the list, there should not be a requirement that the building would have to be at risk before it could implement this section. A member of a local authority could attend a meeting, propose that a building be added to the lists and argue the case and it would then go through the normal motions of the authority, but there is not a requirement that people must produce various reports etc. about the building's physical structure and so forth which would tie everybody in knots. The Minister's suggestion would help.
I refer Deputies to section 2 which imposes a basic obligation on a local authority to protect all buildings of architectural merit in its area through listing, etc. This section gives a local authority more power and discretion between development plans to add buildings to that list. The intention is to block a gap in previous legislation which was pointed out in the Seanad and on Second Stage in the Dáil.
We should not have such a rigid system whereby, if a building is not listed in a development plan on time, five years must elapse before it can be included and the building could have fallen into a state of disrepair in that time. This is only a subsidiary section to the basic obligation under section 2. We are trying to prevent buildings, such as Drogheda grammar school, from falling into a state of complete disrepair. However, a building does not have to be at risk to be protected. It can be in perfect shape and still be listed for protection to ensure its future. Deputies should keep that in mind.
I propose, going on Deputy Gilmore's amendment, that we add in "and desirable" after "necessary". The only caveat to that is, if the draftsman says it means the two tests must be passed, we will have to put in and/or if that can be included.
"And/or" might be preferable.
I am advised that "or" includes "and".
I have no qualms with both "necessary" and "desirable" being included in the section and a building being included in city or country development plans at a later stage. Listing buildings does not solve the problem, rather it is the Office of Public Works or relevant body taking charge of it which does. For example, if a castle is located on a man's land and is on the point of collapse, the man is not able to obtain permission to demolish it because it is a listed building, even though it could cause an accident were it by the road. However, the fact it is listed does not make anyone responsible for repairs which could cost £400,000 to £500,000.
There must be thousands of listed buildings throughout the country responsibility for which has not been accepted by the Office of Public Works or another relevant body. What is the next step towards having that happen after buildings are listed? The responsibility for only a small number of listed buildings has been accepted. Listed buildings are no one's responsibility - not the local authority, the land owner or the Office of Public Works. Nonetheless, the land owner cannot obtain insurance to indemnify him for accidents involving people entering his land to examine the building or by a piece of it falling on people walking along the road beside it. The land owner is exposed in such a case because, although it is a listed building, responsibility for it is not accepted by anyone.
Section 9 imposes a duty on owners and occupiers to protect structures from danger. The Deputy's point relates more to national monuments which are the responsibility of the Department of Arts, Heritage, Gaeltacht and Islands through Dúchas and there is legislation covering them. They do not come within the remit of this Bill, except in section 9 which imposes a duty on owners to protect structures from danger.
At their own cost?
Yes.
Section 10 provides for the local authority to assist them.
Yes, the Bill allows for grants to be made available because it imposes this obligation on owners of protected buildings.
That is not a reality.
Not at the moment. The Bill is being enacted so that we can give grants once an obligation is placed on an owner.
What percentage does the Bill allow?
The Bill does not specify that. We will have to draw up a separate grants scheme which will be the subject of discussion with the Department of Arts, Heritage, Gaeltacht and the Islands.
This means legislation is being put in place without a grants scheme being put in place.
No, the grants scheme will be in place when the legislation is in place. The legislation will not commence before the grants scheme is in place.
When will the percentage be made known?
As soon as the Bill is passed. When we have a legal basis for it, the grants scheme will be put in place.
And then?
This will not be a bonanza for anyone.
I am only talking about making a building safe.
The grant scheme is not to make buildings safe but to protect them if they have certain features. It is for conservation purposes.
Yes, but by protecting them they can be made safe.
Not necessarily. The legislation deals with protecting the buildings. Protecting the public is dealt with under a variety of other Acts.
A building cannot be protected by being allowed to fall down.
That is my point. If stones are missing from the foundations and the building is listing to one side, it needs protection and that will also make it safe.
The Deputy is talking about national monuments. We are talking about listed buildings. With respect to the Chairman, sections 10, 11 and 12 cover this area so we can discuss it then.
Question put and agreed to.
SECTION 6.
I move amendment No. 27:
In page 6, subsection (1)(b), line 37, to delete "prescribed bodies" and substitute "bodies prescribed under the Principal Act".
It is important to know what prescribed bodies are in question and the amendment has been tabled so I can be sure the matter is not overlooked. Does the Minister have other prescribed bodies in mind?
The Deputy proposes that prescribed bodies should be prescribed bodies under the Principal Act. That could cause difficulties because bodies are prescribed for different purposes under the Principal Act. We propose that there be prescribed bodies specifically for this Bill rather than a range of bodies prescribed under the Principal Act. There are Bord Fáilte, An Taisce, the Wildlife Service, the National Roads Authority and others, some of which are relevant to the Bill. We want to prescribe bodies specifically for the Bill and that covers the Deputy's point. I know his desire was to discover what the bodies were, but it is deemed more efficient to prescribe bodies under this Bill rather than using the term "bodies prescribed under the Principal Act".
Where in the Bill is the prescription made? Do I understand that the effect of my amendment might in some respects be more limiting than the text of the Bill and might in others be wider because there are some bodies listed under the Principal Act which the Minister would not have it in mind to prescribe under the Bill, whereas there are some bodies not mentioned in the Principal Act which the Minister might want to prescribe under the Bill?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 28 is out of order.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 7, between lines 34 and 35, to insert the following subsection:
"(6) Any structure that is proposed for addition to a record of protected structures shall have the same protection as a protected structure.".
This amendment is intended to avoid the danger that when an application is made for protection, damage could be done to a building. Action could be taken to circumvent the provisions of protection between the first proposal and the decision and the process, as Deputy Gilmore remarked, can take some time. Deputy Clune seeks to provide that once a proposal is made a building has that status. That does not pre-empt the judgment of the competent authority but preserves the situation while the authority is considering the case.
This is already covered in the Bill over a few sections, though it is not that easy to see. Section 8 states that works to a proposed structure which affect its character are not exempted development in the same way as those for a protected structure. Section 9 states that it is a criminal offence to damage both protected structures and proposed protected structures. The owner or occupier of a proposed protected structure is under the same duty of care as a person who occupies or owns a structure. The same rules of compensation apply to both types of structures. The refusal of planning permission for works which affect a proposed structure is non-compensatable. This valid amendment is covered already as structures, once considered, have the same status as if they are already on the list.
I withdraw the amendment, sub-ject to leave to return to the matter on Report Stage.
Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.
Amendments Nos. 30 and 31 not moved.
I move amendment No 32:
In page 7, line 37, to delete "may" and substitute "shall".
If it is a good day for me the Minister will accept this amendment as he did on the last occasion.
It is not. Deputy Dukes and I share the same view on this matter generally. Section 7 enables the planning authority to register the fact that a building is protected as a burden on that property under the Registration of Title Act and that provision is optional rather than mandatory. The language here is based on a similar section in the National Monuments Acts, 1930 to 1997, which are deemed to have worked effectively.
The main reason for wanting to leave "may" rather than "shall" is that the amount of work administratively for the Land Registry and local authorities in registering all the protected structures would be huge. For that reason I am not inclined to accept the amendment. The Department has had discussions with the Law Society as to how best to bring to the attention of buyers and sellers that a building is protected and this will include measures to ensure that the record is available to the public. The Law Society will issue practice guidelines to deal with this matter specifically which will deal with all protected structures, including most urban property, which have never been registered. That is one of the major problems with these buildings - many have not been registered.
This is a provisional option like those in the National Monuments Acts, which have worked reasonably well, but we are also talking to the Law Society to ensure that this issue is highlighted as much as possible for its members and the public. That should be sufficient to meet the needs of the Deputy's amendment.
That is all very fine at the level of intention but some questions arise. We are talking about a structure, a specified part of a structure or a specified feature within the attendant grounds of a structure and we debated that at our last meeting. If the protection of that structure or part of a structure is not recorded in the Registration of Title Act, where will it to be recorded? It is not enough to say we will have practice guidelines from a private professional body to cover this. The Minister knows there have been many cases, even in respect of national monuments or features subsequently classified as such, where there have been arguments about title and where damage has been done to a property, artifact or structure while the argument was going on.
I remember one case in my constituency a few years ago when a quarry operator proposed to move a standing stone and this resulted in an argument. The argument was nourished by the fact that there was some doubt as to the title of the land the stone was on. That is a different case as it involves a national monument but in bringing forward this Bill, with which we all basically agree, the intention is to widen the scope of the protection we give to buildings and structures.
It is not logical to say we do not want to deal with the consequences of that, as those consequences should be that we will have a more complete and clearer record of what is protected and what is not. Since the Registration of Title Act is the instrument under which we have to make sure all these buildings are registered, it is not acceptable to say that just because the extra registration will cause extra work we should not do it. If we take protection of these kinds of buildings and structures seriously it will cause more work and, if it is to mean anything, there will have to be a permanent record of it. We all know how many arguments there have been about title and registration of particular buildings. Often, while that argument was going on, wreckers moved in and when the argument was finished the building was gone. I am not disposed to accept the Minister's approach on this.
There will be a much clearer record at local level. The Deputy's proposal is that that should also be registered under the Registration of Title Act. However, a record of everything that is protected will be contained in the development plans. There will not only be a record but it will be local. It is standard practice in any conveyancing that the checks are carried out of the development plan and other matters in the planning office. It is not true to say that people will not have a clear idea of the list of protected structures in a particular area.
The amendment would make it mandatory to register properties under the Registration of Title Act. The simple fact is that huge amounts of property are not currently registered. Any attempt to impose an obligation on local authorities to register these under the Act would delay the process and create some doubt as to when the Act would come into effect. The Deputy's concerns are met by having a clear list locally through the development plan. I am sure the Deputy is aware that it takes a minimum of two years to register a property. If registration were made mandatory, it would have a negative rather than a positive effect on the legislation. For that reason, I would ask the Deputy to withdraw the amendment.
I do not follow the Minister's logic. I acknowledge that difficulties exist in regard to the registration of property. The reasons for those are varied. Some people have motives - perhaps taxation or family ones - for not registering property. Other property transactions are not registered because of the existence of slipshod practice in the various professions involved. I accept that the properties we are discussing here would be recorded in county development plans.
If the Minister is telling me that the Bill as it stands is an adequate record, I cannot see how any doubt would arise simply because the next step of registration under the Registration of Title Act has not been taken. I know extra work would be involved in that but I think it is somewhat disingenuous of us to say that is a problem. Governments and states which have applied for EU membership are advised that one of the first steps they must take is to sort out their land and property registration systems. People are writing learned dissertations about cadastral reform in these places, yet we say that we will not implement this measure because it would require some work. I do not accept that any doubt would attach to anything which would require to be registered under the Registration of Title Act, in line with my amendment, which would not arise if we simply left matters as they are. However, I am prepared to reflect on the matter between now and Report Stage.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
I move amendment No. 33:
In page 8, subsection (1)(b), line 2, after "artistic," to insert "cultural,".
Amendment agreed to.
Amendment Nos. 34 and 40 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 34:
In page 8, subsection (2), line 7, after "would not" to insert "materially".
The amendments propose the insertion of the word "materially" in two places in the Bill where it appears to have been inadvertently omitted. Section 8(1) provides that works are not exempt if they materially affect a protected or proposed protected structure. Subsection (2) provides that the planning authority will issue a declaration setting out the types of works which will affect the protected structure in this way. The provision should read "materially affect" to accord with section 8(1). The same applies to section 9(3)(b) which refers to the declaration issued by the planning authority under section 8 and the wording must be modified in the same way.
Amendment agreed to.
I move amendment No. 35:
In page 8, subsection (6), line 36, after "authority" to insert ", and the Board on appeal,".
This amendment requires the board to respect liturgical requirements when considering an appeal on a planning decision on the interior of a protected structure which is a place of public worship. This requirement currently applies to planning authorities when they are considering planning applications. Naturally such a requirement should also apply to the board. The amendment is intended to ensure certainty in the matter.
Perhaps it is indiscreet of me to ask but could the Minister speculate on what might have occurred if the provisions of this Bill had been in force when proposals were made to carry out certain alterations in the cathedral in Carlow, which is the cathedral for the diocese of Kildare and Leighlin? It is the most celebrated recent case of which I am aware where this issue would have arisen.
The Deputy is absolutely correct; it is indiscreet to ask me to comment on such matters. We had a similar controversy recently in relation to a church in County Meath. This amendment merely puts the same onus on the board to respect liturgical requirements as it does on county councils.
Can the Minister tell us what the term "respect" means in this context? I presume other Members have received a document from the Heritage Council which states that this issue arises quite often. The document draws attention to the fact that parishioners often feel disenfranchised in so far as they have not been consulted or involved in decisions to alter the interior of a church and compromise its historic value and integrity. The document includes a counsel's opinion on the range of meanings for the word "respect". One possible meaning, as defined in the OED, is "to refrain from interfering with" which would mean that any change to the interior of a building which was justified on the basis of liturgical requirements could not be interfered with. The concern here is that section 8(5) and (6) would have the effect of exempting the provisions of the Act from any alteration made to the interior of a church, the justification for which would be that it was required for liturgical requirements. There is need for an explanation as to what is meant by this. We all know in layman's language what it means and I think we all agree that liturgical requirements and liturgical practices must be respected in the colloquial sense. However, when the wigs and gowns and the four gold mines get to work on this, what will they make of it and what will it mean? We need to know at the legislative stage what is the intended meaning of this subsection.
The provision to "respect liturgical requirements" is included in order to show consideration. Churches that are, and have been, in use for a considerable time are obviously current places of worship but liturgical practices change. At one time the priest stood at the altar with his back to the congregation. Subsequently the altar was moved closer to the congregation; this could be regarded as a liturgical requirement.
The Deputy asked about respect. I could give a list of words, including consideration of liturgical requirements. He mentioned the advice received from the Heritage Council which reads: "The planning authority is required to accept liturgical requirements as a valid and proper use or objective and to show reasonable partiality towards faciliting those requirements in its declarations or decisions, having due regard to the specified method of acquiring the necessary information in the case of the required declaration". Senior counsel, junior counsel and barristers will have their own interpretations of any word taken from any piece of legislation. We have tried to ensure that willy nilly changes in churches and elsewhere will not be allowed, but where there should be serious consideration of liturgical requirements, works should be facilitated as far as possible without damaging the heritage aspects. The legislation is about trying to achieve a balance between these two considerations. The introduction of guidelines in relation to various aspects of the legislation were mentioned earlier. This is an area for which guidelines will also be issued and consultations will take place between various bodies in order to get the balance right.
The amendment merely transposes into the legislation the obligation of the local authorities to the board. At the end of the day, it is up to local authorities and the board to interpret, with the assistance of the guidelines, what the words "respect liturgical requirements" mean.
I am not any clearer on what it means. First, suppose a church authority decides to close down a church and make it available for some alternative use, what is the status of the interior of such a church? Does the term "liturgical requirements" include circumstances where there is no liturgical activity? For example, could this provision be used to rip out the interior of a church, where the church no longer requires it, and use it as a museum, restaurant, craft centre or other facility? Second, have there been discussions with any of the churches in relation to how this might work in practice? I imagine that the principal church authorities would be willing to have some code of practice. I am sure some church authorities have codes of practice in relation to the handling of the interiors of churches which might, without causing constitutional difficulty, dovetail into what the Minister is seeking to do generally in relation to the legislation. I wonder have there been any discussions with the churches about how this might be managed.
In relation to the Deputy's latter point, there will be discussions with the churches regarding the guidelines drawn up in respect of liturgical requirements, the protection of interiors of churches and so on. On the first point regarding what has been taking place for some time in relation to a number of Church of Ireland churches and Catholic churches throughout the country, the provision relating to "respecting liturgical requirements" applies only to churches which are used as churches. Once deconsecrated, these churches are just buildings. If a church, including its interior, is on the list to be protected as a church while being used as a church, it is still protected if it is no longer required for liturgical purposes. Once it is a listed building, any changes would require planning permission. Obviously where a church is no longer being used for liturgical purposes, Masses or services, the planning authority would take a reasonable approach. Guidelines will be issued to deal with this issue.
I am sure Members are aware of churches where various activities are being carried on. There is a library in the church in Dunshaughlin and there are craft centres in other churches. Someone is living in a church outside Trim where Dean Swift once lived. The short answer to the Deputy's question is that once a church is protected, it will remain protected. This provision refers to churches that are still in use and that might need to be changed due to a right of service.
I am sympathetic to what the Minister is trying to do. As in many other areas, there is a question of judgment involved here and that is why the word "respect" is used.
Earlier the Minister mentioned changes made in some Roman Catholic churches. Before Vatican II people believed that when a priest stood with his back to his congregation he was facing the same way as them. After Vatican II priests were allowed to face their congregation during services and people viewed this change as a way for priests to converse with them. This is an example of how difficult it is to make a judgment.
That is a good one.
It depends on your point of view. It leads on to a longer discussion than is appropriate here.
There is an element of judgment involved here. Many of the churches that are and will become protected structures have experienced many changes over the years in the ways in which they have been used. Only a few of the larger Church of Ireland churches date back to the 13th and 14 century. There have been substantial changes over the years in the way church interiors are disposed. Most of them have a big choir which takes up a large amount of space. A number of churches have been changed over the years because their choirs were reduced and it makes quite a change to the appearance and proportion of the interiors. In the past these changes took place without any hassle because people accepted change. Perhaps some religions are more adaptable and accept change better than the Roman Catholic community.
We are thinking more in conventional church terms. Perhaps a group which describes itself as a religious group acquires a listed building. Then they start making significant changes to it and justify it on the basis of liturgical requirement. I am trying to visualise the Minister as a pre-Vatican II altar boy. We seem to be thinking in traditional liturgical requirements but some newer religions have them as well. What happens to a building when the religious group that acquired it start to change it? What if they say they are worshipping in their own way and the State cannot tell them what to do?
The local authority will be able to tell them what to do. If they go into a listed building that is not being used for worship, the phrase "respect liturgical buildings" will come into play. The phrase applies to existing buildings that are used as places of worship.
Deputy Gilmore outlined a scenario whereby a religious group intend to turn a building, such as a Georgian house, into a place of worship. That group will have to follow procedures, such as change of use, planning procedures, etc. Local authorities may not apply these criteria because there is no liturgical requirement. This amendment refers to churches, chapels, etc., that are currently used or have been used in the past on a consistent basis. However, I am open to correction on this point. If someone wants to alter a building to meet their liturgical requirements, they will have to go through the planning process and comply with this legislation.
Amendment agreed to.
I move amendment No. 36:
In page 8, subsection (6), line 38, after "requirements" to insert "in so far as is practicable without compromising the integrity of the protected feature or structure".
My amendment attempts to define a boundary of respect. It is intended to convey the meaning of the Bill and what it sets out to do. It refers to the integrity of the protected feature or structure. In most cases it is not the integrity of the entire structure that would be the problem but some feature within it. If there are changes in liturgical requirements then a specific feature that is particular to the structure in question should be respected and added to rather than reduced.
I know what the Deputy is trying to do with his amendment. With regard to the Bill and the discussions we are going to have with the churches, there is a sensitive divide between the need for the State to protect its built heritage and that of respecting the churches and other places of worship. I know Deputy Dukes is trying to define it further. It would be better to deal with this matter in the forthcoming discussions on the guidelines than in the Bill. I ask the Deputy not to press this amendment.
Will the guidelines be the subject of regulations?
We will resume on this amendment.
Sitting suspended at 11.20 a.m. and resumed at 11.50 a.m.
Amendment, by leave, withdrawn.
I move amendment No. 37:
In page 8, subsection (7), line 40, after "section" to insert "but the review shall not affect any works carried out in reliance on the declaration prior to the review".
Subsection (7) permits a planning authority to review a declaration it has issued to the owner or occupier of a protected structure which concerns the type of works which will affect the character of the protected structure. To clarify that, any revision would not affect works which had been done in good faith by the owner or occupier on the basis of the declaration. This provides that the legal basis for such work is unaffected. It is a standard provision.
Amendment agreed to.
Amendments Nos. 38 and 38a will be taken together. Is that agreed? Agreed.
I move amendment No. 38:
In page 9, between lines 6 and 7, insert the following subsection:
"(10) (a) No permission shall be granted on an application for the demolition of any protected structure except in the case of compelling and imminent danger to the public or of exceptional environmental improvement.
(b) No works shall be permitted on any protected structure except on the grounds of exceptional environmental improvement as provided for in sections 10 and 11.".
This is self-explanatory. No permission will be granted for the demolition of a protected structure unless there is a danger to the public or grounds for an exceptional environmental improvement. This amendment ensures that no structure would be demolished except under those circumstances.
Amendment No. 38a does much the same. As a result of Deputy Dukes' amendment, we had another look at this section. The principle behind it was good for clarification purposes. We examined the amendment to incorporate it into the Bill. In the course of consideration we discovered that Deputy Dukes' amendment would not allow planning permission for the demolition of any protected structure and would prohibit works to a protected building unless there was a compelling and imminent danger to the public or there were reasons of exceptional environmental improvement.
We accept the principle behind the amendment but feel that it goes too far. That is why we have tabled an additional amendment with the same intent but different wording. In the Bill as drafted, planning authorities would be required to protect buildings included in the record of protected structures. Planning authorities would not, therefore, be free to grant permission to demolish a protected structure without contravening their own development plan. If they wish to grant such permission, the consent of three-quarters of the elected members would be required. In the interests of clarity, paragraph (b) of my amendment states that the planning authority or the board on appeal shall not grant permission for the demolition of a protected structure save in exceptional circumstances. That states clearly that permission for the demolition of a protected building should only be granted in exceptional circumstances. That should meet the Deputy's concerns without introducing uncertain concepts into the planning law.
"Exceptional circumstances" should be defined. If there is a danger to the public or a need for environmental improvement, it could be specified.
As a general principle, I have difficulties using phrases like "exceptional circumstances" and then giving examples. In many cases, the courts had been known to treat these as exclusive lists, that is to say, if it was not included, it was not intended. I would prefer that the phrase "exceptional circumstances" was included and a case could be made as to whether something is an exceptional circumstance. That is the argument, rather than a constitutional or legal argument about what was intended or whether these lists were exhaustive. Including "exceptional circumstances" leaves a fair degree of discretion to the authorities concerned to take action.
Deputy Dukes's amendment, which seeks to allow only development which was of exceptional environmental improvement, would give rise to great difficulties. It is very subjective and open to many interpretations. Much of the law is open to interpretation but it is our job to ensure it is as focused as possible. The prohibition of any works, except on grounds of exceptional environmental importance is indefensible. The thrust and principle behind Deputy Dukes's amendment, which was to clarify what was intended, is good and we have gone as far as we can to incorporate that principle in my amendment, which is a direct result of Deputy Dukes's amendment. I do not think we can go any further on it.
Deputy Dukes will be glad that the Minister has recognised that there is some value in his proposal.
I move amendment No. 38a:
In page 9, between lines 6 and 7, to insert the following subsection:
(10)(a) For the avoidance of doubt, it is hereby declared that, in considering any application for permission or approval in relation to a protected structure, a planning authority, or the Board on appeal, shall have regard to the protected status of that structure.
(b) A planning authority, or the Board on appeal, shall not grant permission for the demolition of a protected structure save in exceptional circumstances.".
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
I move amendment No. 39:
In page 9, subsection (1), line 11, after "artistic," to insert "cultural,".
Amendment agreed to.
I move amendment No. 40:
In page 9, subsection (3)(b), line 26, after "would not" to insert "materially".
Amendment agreed to.
I move amendment No. 41:
In page 9, subsection (5), between lines 35 and 36, to insert the following:
"(a) the subject of prior notice in writing to the relevant planning authority,".
Will the Minister comment?
I sympathise with the reasoning behind the amendment. Section 9 makes it an offence to cause damage to a protected structure. There is a defence to causing such damage in any court proceedings - the person involved must show that the works were carried out in order to secure the preservation of the structure, were undertaken in good faith to safeguard the structure temporarily and are unlikely to alter it permanently. That is the defence a person can use. Three criteria must be met: first, it must be shown that the work was carried out in order to secure the preservation of the structure; second, that it was undertaken in good faith to safeguard the structure temporarily and, third, that it was unlikely to alter the structure permanently. Those three criteria must be met. Deputy Dukes wishes to add a fourth criterion - that the works are first notified to the planning authority. While I have sympathy with that proposal, I consider it may be unworkable.
There have been cases of people using this as a defence, but if works are required to be carried out urgently in good faith to preserve a protected structure, it would seem unfair that a person who does so would be prosecuted because of a failure to notify the local authority. If, for instance, such activity happened at the weekend or when the planning authority was not open, it would seem to compound the problem. That is the reason I do not want to include a criterion for a prior notice in writing to the relevant planning authority.
Perhaps we could look at it for the Report Stage and include a stipulation that as soon as practicable a local authority must be informed of the works.
It is important that the local authority would be notified. The Minister referred to emergency cases at the weekend but many of these cases would not be of an urgent nature and the planning authority should be involved and notified.
I agree. The section is designed to try to prevent what has happened in the past when people moved in over a weekend and carried out works and used as a defence that they needed to do so for reasons of safety etc. Under this provision they must show good faith in the three areas I mentioned. If they do not meet the criteria, they can be prosecuted. The fourth criterion that Deputy Dukes proposes in his amendment would be unfair to some people.
Would it not help to eliminate cases such as the Minister described?
There is a stipulation that local authorities must be notified as soon as is practicable. We may be able to include something similar here. We will come back to it on Report Stage.
Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
SECTION 10.
Amendments Nos. 42 and 50 are related and may be taken together by agreement.
I move amendment No. 42:
In page 10, between lines 27 and 28, to insert the following subsection:
"(6) Where a person on whom a notice has been served under subsection (1) fails to comply with the notice, the planning authority may itself carry out the works concerned.".
The Deputy's amendments seek to permit a planning authority to do works itself where it has served those particular notices. The issue is covered in section 20, which enables the planning authorities to perform these works or to arrange for them to be done by somebody else. The Deputy's concern is covered in that section.
In that case I will withdraw the amendment. I seek to ensure that the planning authority itself may do the repairs or the restoration work rather than leave prosecution as the only recourse open to the planning authority, by which time the building may be damaged.
The section goes one step further. It can arrange for the work to be done and does not necessarily have to do the work itself. It cannot then give the excuse that it does not have the expertise etc. to deal with it.
Amendment, by leave, withdrawn.
Amendments Nos. 43 and 44 not moved.
Section 10 agreed to.
SECTION 11.
I move amendment No. 45:
In page 10, subsection (1), line 30, after "element" to insert "or the removal of any sign or structure which obscures or alters or interferes with the appearance of the specified structure or any part thereof, irrespective of whether planning permission has been granted for the sign or structure in question".
This amendment seeks the inclusion of billboards as part of the section.
Deputy Dukes's amendment defines "works" as including the removal of any sign or structure from a protected structure, irrespective of whether planning permission has been obtained. This amendment is not necessary as section 1 defines "structure" as including all fixtures and features which form part of the exterior of a structure. A hoarding on a listed building is regarded as "structure" and is covered under that definition. Obviously, it includes all the signs attaching to a protected structure. The section applies equally to authorised and unauthorised developments. Section 11(3)(e) provides that a planning authority shall pay the costs for any works to authorised structures. Given that the two points raised are covered in the definitions section, the amendment is unnecessary.
We will have a look at it on Report Stage to see whether it can be clarified further, perhaps by inserting a reference in section 1 or a reference back to "structure" as defined in section 1. I do not know whether that is pure enough for the draftsman but we will try it.
Amendment, by leave, withdrawn.
Amendments Nos. 46 and 47 not moved.
I move amendment No. 48:
In page 10, subsection (2)(b), line 39, after "artistic," to insert "cultural,".
Amendment agreed to.
Amendments Nos. 49 and 50 not moved.
Section 11, as amended, agreed to.
SECTION 12.
Amendment No. 51 not moved.
I move amendment No. 52:
In page 12, lines 28 and 29, to delete subsection (5).
This is an important amendment. This section provides for appeals against any notice which might be issued by the local authority in relation to the restoration of a building or the works being carried out to protect a building. Section 12 provides that the owner or occupier or a person on whom the notice is served can go to the District Court to appeal against the notice being made. There is a list of grounds on which an appeal can be made - that the person is not the owner or occupier of the structure; that compliance with the requirements of the notice would involve unreasonable expense, which leaves it quite open; that the person has already taken all reasonable steps to prevent the structure from becoming or continuing to be endangered and so on, and that the time for complying with the notice is unreasonably short. Section 12 leaves the decision on whether the notice should be complied with to the District Justice.
Subsection (5) states:
No appeal shall lie to the Circuit Court from a decision of the District Court under this section.
In practice this means that if a person is the owner or occupier or has some connection with a building and a notice is served on them all they need do is convince a District Justice that on any one of these grounds to which I referred. The District Justice will decide whether the notice is applied. We are putting in place comprehensive legislation on which there is general agreement, and on which the Minister has been complimented, to protect our architectural heritage.
The key means by which this is exercised - which is when it comes to the enforcement of it - and the planning authority serves a notice on somebody stating that they have to do something to protect or restore the building, that person might go to the District Court and a judge may strike out the case and the planning authority cannot appeal the case to the Circuit Court. I have the greatest respect for our District Courts but district justices have to deal with various matters that are brought before them, often in fairly short hearings, in the dismal conditions they must endure in our court buildings. It is wrong that planning authorities will be unable to appeal to the Circuit Court.
There have been cases, although they did not relate to listed buildings. I recall one celebrated case in relation to an extradition matter where a district judge made a decision which caused a furore. I have enormous respect for the District Courts and the amount and nature of business with which they must deal. The type of case that would be brought before a District Court would require a fair amount of consideration. There are matters of law, interpretation of this legislation and so on, and not to provide for an appeal to the Circuit Court is wrong. I also wonder about the constitutionality of that aspect. A district judge can decide there is no obligation to protect the building and I am seeking to delete the subsection which states there will be no appeal to the Circuit Court. There should be provision for appeal to the Circuit Court if it is considered warranted. Either way, the individual who takes a case to the District Court may believe there are grounds for appealing to the Circuit Court and he or she should not be denied that due process. Similarly, if a planning authority is attempting to protect a building, and where a district judge makes a decision that may be open to question, there should be a right of appeal to the Circuit Court.
People sometimes say that Committee Stages of Bills are a waste of time because not much work gets done but the Deputy has managed to convince me by the weight of his arguments that I should accept the amendment. The provision in the Bill is fairly standard in legislation, and we may have been guilty of looking at this from one point of view. I take the view put forward by the Deputy that local authorities might want to appeal the decision of the District Court. Deputy Gilmore's amendment is a good one and I accept it.
Amendment agreed to.
Section 12, as amended, agreed to.
Sections 13 to 21, inclusive, agreed to.
SECTION 22.
Amendments Nos. 53 and 54 are out of order.
On amendment No. 54, we are inclined to accept this amendment. I am not sure if we can move it once it is ruled out of order.
Can we leave it for Report Stage?
We will leave it for Report Stage.
I thank the Minister.
Amendments Nos. 53 and 54 not moved.
I move amendment No. 55:
In page 14, subsection (1)(b), line 28, before "the structure" to insert "in the case of a compulsory acquisition,"
This amendment would permit planning authorities to acquire protected structures which are dwelling-houses, by agreement, where it is necessary for the protection of the structure. The section, as currently drafted, would prevent planning authorities from acquiring, either by agreement or by compulsory purchase, a private dwelling-house but there is no reason to prevent that being done by agreement. Planning authorities currently acquire such buildings and, on occasion, acquisition by the authority may be the best way to save a building from dereliction. This amendment would clarify that position and also strengthen the Bill.
In line with the constitutional protection for private dwellings, authorities will not be able to compulsorily acquire dwellings. The wording on this was somewhat awkward and it prevented us taking over houses or an individual house by agreement. We are amending it now so that we can, by agreement with an owner, take over a house that needs to be protected. We are not extending the power of CPO to private houses. In short, this gives local authorities an added string to their bow. We were inadvertently preventing them getting dwelling - houses by agreement.
The Bill as originally drafted gave planning authorities the option of acquiring properties either by agreement or by compulsory purchase. Does this mean that privately occupied dwellings cannot now be acquired by compulsory purchase? Is that the effect of the amendment?
Yes. They cannot do that anyway. This is just to clarify the position.
This means that they can do it now by agreement?
Yes. We had a similar situation in relation to the churches; constitutionally, one cannot compulsorily purchase a place of religious worship so we had to change that. We had included the same wording and we did not spot it until now. This amendment rectifies the position. It strengthens rather than weakens the Bill.
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
Amendment 57 is related to amendment No. 56 and they can be taken together. Is that agreed? Agreed.
I move amendment No. 56:
In page 16, lines 13 to 23, to delete subsection (2) and substitute the following:
"(2) Where a planning authority becomes aware before making a vesting order in respect of a protected structure that the structure is subject (whether alone or in conjunction with other land) to——
(a) any annuity or other payment to the Minister for Agriculture and Food or to the Commissioners of Public Works in Ireland, or
(b) any charge payable to the Revenue Commissioners on the death of any person,
the planning authority shall forthwith inform the Minister for Agriculture and Food, the Commissioners of Public Works in Ireland or the Revenue Commissioners, as the case may be, of its intention to make the vesting order.".
Amendment 56 to section 25 and amendment No. 57 to section 26 are required because of the recent dissolution of the Land Commission and the transfer of its residual functions to the Minister for Agriculture and Food. The two amendments substitute merely the words "Minister for Agriculture and Food" in all instances where previously there were references to the Land Commission. The amendments are technical because the Land Commission has been dissolved since 31 March.
Residual issues arise from the abolition of the Land Commission and one of them has arisen in the context of this Bill. Does the Government intend to introduce general legislation to tidy up the residual issues arising from the dissolution of the Land Commission rather than dealing with them on a piecemeal basis as in the case of this legislation?
That is dealt with in the Bill that provided for the dissolution of the Land Commission. It is not intended this type of provision will be made in all legislation. It is provided for in the Bill.
As this Bill was introduced following the Dissolution of the Land Commission Act, we tabled these amendments to make doubly sure of this.
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26.
I move amendment No. 57:
In page 17, lines 4 to 15, to delete subsection (3) and substitute the following:
"(3) Notwithstanding subsection (2), where a planning authority has acquired by a vesting order a protected structure which is subject, either alone or in conjunction with other land, to an annual sum payable to the Minister for Agriculture and Food or the Commissioners of Public Works in Ireland, the planning authority shall become and be liable, as from the vesting date, from the payment to that Minister or those Commissioners, as the case may be, of——
(a) that annual sum, or
(b) such portion of it as shall be apportioned by the Minister or Commissioners, as the case may be,
as if the protected structure has been transferred to the authority by the owner on that date.".
Amendment agreed to.
Section 26, as amended, agreed to.
Sections 27 and 28 agreed to.
SECTION 29.
I move amendment No. 58:
In page 18, paragraph (b), line 24, before "sell", to insert "with the consent of the Minister for Arts, Heritage, Gaeltacht and the Islands,".
Section 29 authorises the planning authority to use a protected structure which it had acquired for any purposes in connection with its functions or also to sell, let, transfer or exchange all or any part of the proposed structure. My amendment seeks to ensure that a planning authority that proposes to sell a structure should obtain the consent of the Minister for Arts, Heritage, Gaeltacht and the Islands. I tabled this amendment because the sale of a building may compromise its future protection. That depends on to whom it is being sold. I refer to a case where a planning authority decides to sell a valuable structure, considered important not only locally but to the nation, and there is reason to believe its future protection might be compromised by the sale. This could apply if a building was being sold to a hotelier and the Department of Arts, Heritage, Gaeltacht and the Islands thought the number of people who might use it as a hotel might compromise it. There may also be other cases in respect of which the Department of Arts, Heritage, Gaeltacht and the Islands might have a view on the sale of a building. This amendment adds another protection for a building and its provision would only arise where a sale is contemplated. It is not unusual in legislation that public authorities have to obtain ministerial approval where a sale is contemplated.
I hold the view we should devolve as much responsibility as possible to local government. Other Ministers have also come to hold that view in recent years. All the consents a Minister for the Environment and Local Government had to give previously are removed or are being removed. Given the requirement that consent should be obtained from the Minister in the Department directly responsible for local authorities has been omitted from a good deal of legislation, I would be reluctant to include a stipulation in this Bill imposing an obligation on local authorities to get consents from other Ministers. That is a philosophical view I hold in regard to the powers of a local authority.
It is important to note that once a local authority lists a protected structure when it acquires it, it is bound by the objective in its development plan to protect such a structure. The conditions under which it would be sold would also include its protected status from a contract point of view. That wo.0uld be part of the sale. Any changes that a person who bought the property might want to make to it would also be subject to the planning laws and the regulations governing the listed status of the building.
There will be sufficient protections for such buildings. If a building is listed, a contract can be signed without the local authorities having the added burden of having to seek the approval of the Minister for Arts, Heritage, Gaeltacht and the Islands. If the Minister decided not to grant permissions to the local authorities to sell properties, local authorities might be reluctant to take over buildings such as this. They might keep their list to a minimum and not take over the buildings they should take over because of a fear that they might be left with them on their hands and the major costs that would accrue in respect of them.
On balance the protection is in the Bill. The most important aspect is to ensure the buildings are listed. As a result of such listing they will be protected. In the case of buildings that could be used without altering their listed status, I do not believe we would want them all to be turned into museums. If they can be used under the protection of the Bill, they should be. In many cases the planning authority would be able to secure the protection of a building by selling it and imposing conditions of sale much more effectively than holding on to the building.
I am convinced.
Amendment, by leave, withdrawn.
Section 29 agreed to.
SECTION 30.
I move amendment No. 59:
In page 18, subsection (3), line 45, after "artistic," to insert "cultural,".
Amendment agreed to.
Amendment No. 59a and amendments Nos. 60 and 61 are alternatives. Amendments Nos. 59a, 60 and 61 will be taken together by agreement.
I move amendment No. 59a:
In page 19, lines 1 to 6, to delete subsection (4) and substitute the following:
"(4) When carrying out works in accordance with section 3(2) of the Local Government (Sanitary Services) Act, 1964, on a protected structure or a proposed protected structure, a sanitary authority shall, as soon as practicable, inform the Minister for Arts, Heritage, Gaeltacht and the Islands of the works if he or she recommended that the structure be protected.".
The amendments tabled by Deputy Clune would require a planning authority which is proposing to carry out an emergency work on a protected structure that is dangerous to notify the Minister for Arts, Heritage, Gaeltacht and the Islands before it begins. In the circumstances under which these emergency demolition notices are served, it is not always possible for the planning authority to notify the Minister for Arts, Heritage, Gaeltacht and the Islands in advance. However, the planning authority will have to consider the status of the building in issuing the notice and will have power to preserve it as far as possible. If planning authorities were required to notify in this way it might mean that in an emergency - for example, the earlier case that happened over a weekend - they could not act quickly enough to prevent an injury.
I want to go some of the way towards meeting the Deputy's concerns and that is why I tabled an amendment, giving a more time neutral wording to the section. When carrying out works on a protected building the local authority must notify the Minister as soon as possible in practical terms, so if it happened on a Saturday morning, the Minister would be notified on Monday morning. In many circumstances that would obviously be before carrying out the works, but the wording I am proposing will also allow the planning authority to act in an emergency. I am accepting the principle of what the Deputy is trying to achieve without totally tying the hands of the local authorities. In practice my amendment will have almost the same effect as that of the Deputy's.
The word "after" could lead to problems. I accept the Minister's point that it would not be practicable to inform the Minister immediately if an emergency arose over the weekend or outside office hours, but it is important that the sanitary services, who may not know or care that a structure is protected, should notify the Minister as soon as they are to carry out works. Deputy Kelleher referred last week to the work being carried out on the main drainage system in Cork. There is a danger that in the course of the work, the old walls of Cork city may be bulldozed without a notification to anybody. It is very important to address the fact that, by its nature, sanitary services work could have an effect on the foundations of building in close proximity. I am glad the word "after" has been removed.
Section 30 deals with the obligations of sanitary authorities in respect of protected structures and there is an obligation to see if a building is listed or protected before they start work. I am sure that one of the roles of the conservation officers who will be in place will be the education of people in other sections of the local authority.
They will be very busy if they have to educate local authority members as well.
Initially their major job will be to educate fellow officers of the local authority on their obligations under the Act and to watch out for these cases.
The principle behind the Deputy's amendments is good and I think it is well met by my amendment. We have got rid of the dreaded word "after" and also covered the procedure for emergencies.
Amendment agreed to.
Amendments Nos. 60 and 61 not moved.
I move amendment No. 62:
In page 19, between lines 6 and 7, to insert the following subsection:
"(5) Where a lawful development to a protected structure would for the first time require compliance with a requirement of building regulations or fire regulations, full compliance with which would endanger the character of the structure or any element of it, the planning or fire authority may apply those regulations with such reasonable modifications as take into account the protected status of the structure.".
This amendment seeks to legislate for common sense. We have quite good building regulations and strict fire regulations in place. I am not for a moment suggesting that we cut corners on the standards set by the building or fire regulations. It is not difficult to envisage a circumstance where the strict application of either the building or fire regulations might well conflict with the objectives of protecting the character of a particular building or structure.
One can envisage a situation where a development is permitted that would trigger the application of the fire regulations, for example, a fire escape or particular types of fire doors or in the case of building regulations which might trigger requirements for ventilation or other matters provided for in the building regulations. If the regulations were applied strictly to the letter of the law, it could compromise the protected character of the building itself. In fairness to the people who are obliged to enforce the building and fire regulation, we need to make it clear to them in legislation that they can apply their common sense.
We are living in litigious times and I can easily understand that a fire officer who uses his common sense and signs off a listed building without insisting to the letter of the law on the fire regulations that, at some stage, it will come back at him or, similarly, an architect who has to certify that the development complies with the building regulations may well feel constrained not to use common sense. I am proposing that we should legislate for the marriage of the protection and conservation requirements that are provided for in this legislation with the important fire and building regulations that are provided for elsewhere. It is not a recipe for cutting corners on building or fire regulations - some of these things may well be done by way of an imaginative approach to design - but to marry the two objectives and to make it clearer to those whose job it will be to enforce and apply them that there is a legislative basis for them to use their judgment in marrying the objectives of this legislation with the fire and building regulations set down elsewhere.
The Deputy makes a good point about enabling a fire or building authority to apply the relevant building or fire regulations in part only to a development or protected structure on an ad hoc basis. The amendment underlines the problem, which has been recognised and is currently being addressed in the Department, whether it is appropriate to apply the fire and building regulations to protected structures.
The new technical documents on fire safety which relate to the refurbishment of older buildings and their conversion to modern use now refer to "comparable" rather than "equivalent" results from fire engineering alternatives to solutions. There is some discretion granted to fire authorities in that context. The 1997 building regulations make new provisions regarding existing buildings. The effect of those is that the building control system should not inhibit conservation and adaptation of buildings.
I agree with the Deputy that a more radical approach is required for protected buildings and other buildings of outstanding architectural and historic merit. The Royal Institute of the Architects of Ireland, the Heritage Council, An Taisce and the Department are co-operating in producing examples of approximately a dozen different types of heritage buildings which have successfully been conserved and converted to modern use within the building control system. It is hoped to use these examples as an additional technical guidance document in 1999. The Department and the fire service people believe this is the best way to proceed.
If we do not include a stipulation in law which allows the fire service or building control people to use some discretion when complying with regulations, it might leave them open to claims if someone loses their life in a fire in an existing building where the fire regulations have not been fully met. I would not like to expose people who are doing a good job to that. If the Deputy withdraws his amendment on the basis that he can reintroduce it on Report Stage, we will consult again with the fire service people in the Department. I assure the Deputy we are trying to address the points he made.
I thank the Minister for his reply. I will withdraw the amendment on the basis that I can reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 30, as amended, agreed to.
The last day we discussed section 3 of the Bill which deals with protected groups of structures and we said we would look at it again on Report Stage. We will circulate a note on it to members for their information.
Sections 31 and 32 agreed to.
SECTION 33.
I move amendment No. 63:
In page 19, paragraph (a), line 30, after "artistic," to insert "cultural,".
Amendment agreed to.
I move amendment No. 64:
In page 19, paragraph (a), to delete lines 32 to 39 and substitute the following:
"(viii) for preserving the character of architectural conservation areas;',".
Amendment agreed to.
I move amendment No. 65:
In page 20, paragraph (b), line 2, after "artistic," to insert "cultural,".
Amendment agreed to.
I move amendment No. 66:
In page 20, paragraph (b), to delete lines 3 to 10 and substitute the following:
"(vii) for preserving the character of architectural conservation areas.'.".
Amendment agreed to.
Question proposed: "That section 33, as amended, stand part of the Bill."
This is one of the sections that talks of groups of structures. I have not had a chance to look at the Minister's notes yet.
We can discuss it again on Report Stage once the Deputy has had a chance to read them.
Question put and agreed to.
Section 34 agreed to.
SECTION 35.
I move amendment No. 67:
In page 21, line 35, after "artistic," to insert "cultural,".
Amendment agreed to.
Section 35, as amended, agreed to.
Sections 36 and 37 agreed to.
SECTION 38.
I move amendment No. 68:
In page 22, subsection (1), line 14, after "preserve" to insert "or to protect, or to consider the preservation or protection of,".
Amendments Nos. 68 and 69 essentially provide for the same thing - they clarify that buildings on list 2 or B will be protected under the transitional arrangements of the Bill. Section 38 currently provides that all buildings which are specifically preserved in a current development plan will become protected structures. I have to admit that the wording of Deputy Dukes' amendment appeals more to me than that of my own amendment. His amendment was tabled after mine. I am told that it derives directly from the Planning Act, 1963. It is phrased in such as way as to be consistent with the wording of that Act. What Deputy Dukes' amendment seeks to achieve is covered by my amendment. We tabled the amendment to acknowledge the fact that the Deputy raised this matter on Second Stage. On balance, it would probably be better to keep the wording we have in the Development Act, 1963, unless the Deputy feels strongly that we should adopt his particular wording. I am easy about it.
I am quite happy with the Minister's amendment, although it strikes me as being about the belt and braces, and safety pins as well. It is fine, however.
Amendment agreed to.
Amendment No. 69 is out of order.
The Minister can propose the amendment, but I cannot. It is a little ironic that although the Minister is worried about my amendments going past the point where they are in order, my wording is much more economical than the Minister's.
Yes.
Amendment No. 69 not moved.
Amendments Nos. 70 to 73, inclusive, are out of order.
Amendments Nos. 70 to 73, inclusive, not moved.
I move amendment No. 74:
In page 22, subsection (3)(a), line 42, after "artistic," to insert "cultural,".
Amendment agreed to.
I move amendment No. 75:
In page 22, subsection (3)(b), line 47, after "artistic," to insert "cultural,".
Amendment agreed to.
I move amendment No. 76:
In page 23, subsection (5), line 6, after "function" to insert "and shall require an affirmative vote of two-thirds of the members of the planning authority".
This is country we have travelled before. I will not go on about it.
Amendment, by leave, withdrawn.
Section 38, as amended, agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."
The Minister spoke about this earlier. Will he give us an indication of the kind of scheme he has in mind?
The papers have not been finalised. I can only give the Deputy a broad outline. The amount of money which is available for grant purposes in the first year of the scheme is £3.9 million. We intend to draw up guidelines as to how the grants might be used and on what buildings they might be used. They will be listed buildings generally. Those guidelines are practically finalised at this stage.
We will also inform local authorities of indicative levels of grants from that £3.9 million. That will be based somewhat arbitrarily this year because we want the money to be expended this year on personnel and reference to the number of listed buildings.
Grant applications will be invited within a specified period of probably a month. When the applications are made, the local authorities will process them. At that stage we will review the indicative allocations to the various local authorities because there is no point in us having money allocated to a local authority if it receives only one grant application.
That is a broad outline of the scheme. If there is anything further, we can add to it. We think the details will be available next week and I will let the Deputy have information on it as soon as it is finalised.
Why is it £3.9 million rather than £3.8 million, £4 million or £5 million? I take it the sums to which the Minister referred in this connection are for actual works either carried out by the local authorities or by way of local authority grant assistance to people who are required to carry out works. Do the local authorities have the personnel to carry out all this work?
The total sum is £5 million but, to answer another part of the Deputy's question, some of that is going towards the employment of conservation officers in each of the local authorities. About £300,000 will be given specifically for this purpose. A further £800,000 will go to the Department of Arts, Heritage, Gaeltacht and the Islands in connection with the scheme because that Department has duties and obligations in a parallel Bill - the National Inventory of Architectural Heritage Bill, 1998. The figure is £3.9 million due to the deductions.
The local authorities will pay the grants but if they themselves undertake works on a house, they will not be eligible for grants. The grants must be paid to a private individual. This is one of the areas which have caused delays in previous years. If one imposes these kinds of obligations on people, the property rights provision in the Constitution come into play. One cannot impose an obligation on people without offering assistance in some way. That is my layman's way of describing it. One is imposing particular obligations for a public good and one must in some way assist that if possible.
I do not expect that the £3.9 million will cover all the applications so they must be prioritised. The grants will be payable to people on the basis that they will spend the money within the year. With many departmental grant schemes, one receives a grant over an indefinite period but to make the best use of this money this grant scheme will involve a definite starting and finishing time. If one has not complied with what one has undertaken to do in that period, the grant may be reviewed or withdrawn.
Am I correct in saying that two kinds of works are envisaged here, works which are required by the local authority which has served a notice on the owner of a building and works which are proposed by persons who have asked for a direction from a local authority as to what kind of work is required? Has the Minister any thoughts on what might be the corresponding sums of money for a full year?
The Deputy is basically right in that it relates to required works and proposed works. They are all part of the one grants system. The £3.9 million is the figure for a full year. In light of demand, etc., obviously that figure will be reviewed as part of the normal Estimates negotiations. We have secured £3.9 million for this year.
With regard to the £3.9 million and the way it will be prioritised, particularly in the first year - we are really only talking about a half year - I would imagine that somebody contemplating getting a grant would need to have their work and contractors lined up. How does the Department avoid a situation where this will become a home improvement grant scheme for people who can well afford to maintain their listed building but who know their way around schemes and will end up getting grants under the pretext that it is for preservation purposes? Presumably the grant will not cover the full cost of restoration and applicants will need matching funds.
The regulations are not finalised. However, my recollection of earlier drafts of them is that the grant will apply to specified works for conservation or protection. It will not apply to home improvements. The work must be done to specified standards. That is why the conservation officers will be involved in this particular process. The grants will also apply to private individuals rather than to companies that own Georgian houses, etc.
One of the criteria that will be taken into account in respect of the level of grants to be paid will be people's means. That is about as tight as we can make the provision in that regard. I do not doubt that we will learn a number of lessons over a period but I take the Deputy's point. With less than £4 million we will not be in a position to be over-generous to people who can afford to finance these works. We are trying to ensure that the money we are making available will go to those who might not normally be in a position to pay for the works required. The level of grant provided will reflect a person's ability to pay for the works. By way of encouragement, we will be trying to make some money available to every legitimate applicant but the level of a grant will reflect the means of the person involved.
Question put and agreed to.
Amendment No. 77 not moved.
Section 40 agreed to.
SECTION 41.
Question proposed: "That section 41 stand part of the Bill."
Will the regulations envisaged under this section require the active approval of the Houses of the Oireachtas or will they be passive in nature, namely, that they will sneak through without debate? Will the 21 day rule apply?
Yes.
I suspected as much. I have been at this for 18 years, give or take a few months——
The Deputy and I have had some successes between us in that period.
Yes. We have occasionally managed to change things. Normally when primary legislation is passed, the nature of the regulations is clear. However, occasionally there are regulations which might benefit from further scrutiny. I have occasionally been in a position to adopt different procedures, but the usual procedure of laying regulations before the House and stating that they will stand unless they are annulled within 21 sitting days is very useful for the Government. Such regulations, which sometimes contain important provisions, can be left on the Order Paper without time being provided to debate them within 21 sitting days and they eventually become binding.
What form will the regulations required under this section take? Will the Minister slip an important regulation past us by using the 21 day rule? I do not believe the current procedure is acceptable and it should not remain unchallenged.
As stated previously, I respect the Deputy's views on this matter because they have always been consistent. I am informed that the order or regulations made under this section will be relatively minor. If the Deputy is prepared to reach a compromise, I will undertake to bring the regulations to the attention of the committee when they are still in draft form in the event that Members may wish to make an input.
Question put and agreed to.
NEW SECTIONS.
Amendment No. 78 not moved.
I move amendment No. 79:
In page 24, before section 42, to insert the following new section:
"42.-In determining any planning appeal related to a protected structure, An Bord Pleanála shall take into account that status under this Act and such consideration shall include any guidelines or reports issued by the Minister under this Act. The Board shall not permit the demolition of or material alteration to a protected structure unless two-thirds of its members shall vote for such a permission and a record of the voting of the Board members on such appeals shall be appended to the Inspector's report and made available for public inspection. Before determining such appeals the Board shall seek a report on such structures from the Minister for Arts, Heritage, Gaeltacht and the Islands.".
I wish to make a point with which we will deal during our deliberations on the planning Bill later in the year. The planning process has become increasingly contentious and the more pressure there is for development, the more sensitive that process has become. It is very important that we make the procedure as transparent as possible. That proposal applies as much to An Bord Pleanála as it does to the planning authorities.
As the Minister is aware, there have been cases where it has become known that An Bord Pleanála made determinations of appeals and where it is difficult to see the motivation behind such determinations in view of the report prepared by the staff of the board. As is the case with planning authorities, planning permissions are granted which seem to be out of step with the advice provided by the technical staff employed by those authorities. I am not stating that such advice should always be followed, far from it. However, a good deal of the technical advice provided to the planning authorities and An Bord Pleanála is based on objectively observable or measurable criteria or considerations. When a planning decision or an appeal determination departs from that, it would always be worthwhile for an explanation to be made available.
Amendment No. 78 which was ruled out of order was designed to ensure that An Bord Pleanála should provide such an explanation. However, I accept that such a provision would probably be more relevant to a different Bill. When dealing with issues of this kind, transparency is much better than opacity. Given the discussions taking place at other fora in respect of planning issues, transparency is even more desirable.
I do not disagree with the principle behind the Deputy's amendment. We are giving serious consideration to this matter in the context of drafting the planning and development Bill. It is desirable that the planning process should be transparent. However, that does not mean that people should merely be made aware of the fact that an inspector's report may have recommended a certain course of action while the board decided on another. We must be made aware of the reasons behind a board's decision to go against such recommendations.
A Minister who is presented with technical advice is supposed to use his or her judgment but he or she must always have good reasons for going against such advice. I do not disagree with what the Deputy is saying but, as he stated, the debate on this matter is more relevant to the major planning and development Bill. I look forward to that debate.
Amendment, by leave, withdrawn.
I move amendment No. 80:
In page 24, before section 42, to insert the following new section:
"42.-It shall not be possible, under this Act, to obtain a retention permission for any unauthorised works or change of use to any protected buildings under this Act.".
This is another just-in-case provision. I am not sure whether what the amendment seeks to do is already covered in the Bill. I was unavoidably absent for the debate on a previous amendment which dealt with structures or hoardings outside buildings.
For the Deputy's information, this is covered under the definition of the term "structure" in the section dealing with hoardings, etc.
Can the owners hide behind the fact that they have been there for some years?
No, if they were erected with planning permission the local authority can now instruct them to take them down but it will incur the expenses involved. If they were put up without permission, the local authority can instruct people to take them down and the people will bear the cost. This matter needs to be dealt with in the major planning Bill. I empathise with the sentiments expressed by the Deputy but we are taking a detailed look at unauthorised developments, retention, etc., in the planning Bill. That has long been my intention, and that of the Deputy. It is just too simple currently to do something wrong and then apply for retention of planning permission.
Even if the local authority decides to enforce the planning Acts and takes an individual to court, the judge will merely ask in 99 cases out of 100 whether the individual has applied for retention planning permission and if he or she has, the judge will say that he will await the outcome of that application.
I believe that a person should be penalised for breaking the planning laws and whether he or she receives retention of planning permission is a separate issue. That is how we are approaching it in the proposed planning Bill. It is more proper that the Deputy's amendment be looked at in the context of the larger Bill on planning and development. However, it is something that needs to be tackled urgently.
I take the Minister's point because there is a wider issue involved than just simply the consideration of what happens to protected buildings. However, there have been specific, difficult problems with buildings that are encompassed by the intentions of this Bill where works or changes of use having taken place, and people have got away with it even though they were totally out of keeping with the protection and preservation of the buildings.
In addition, the record of local authorities generally in approaching requests for permission to retain is not one which gives a great deal of confidence that they will apply the law in the way in which the Legislature intends. However, I am prepared to accept the Minister's intention that the provisions for planning legislation generally will deal with this. It would be desirable that we proceed with a provision such as that mentioned by the Minister as early as possible.
This debate causes me to fear that, over the next number of months, many things might happen to protected buildings that we might prefer not to see. There are wide boys out there who are quick off the mark and in the nature of things they are quicker off the mark than planning authorities. However, it would also be useful if the Minister could find a way of persuading local authorities to have more backbone in the way they apply planning permission.
Amendment, by leave, withdrawn.
SECTION 42.
I move amendment No. 81:
In page 24, lines 30 to 33, to delete subsection (2) and substitute the following:
"(2) This Act and the Local Government (Planning and Development) Acts, 1963 to 1998 may be cited together as the Local Government (Planning and Development) Acts, 1963 to 1999, and this Act and those Acts shall be construed together as one.".
This is a technical amendment. I have been advised by my party's legal advisers that the reference in the Bill is not correct. It states: "This Act . . . shall be included in the collective citation 'the Local Government (Planning and Development) Acts, 1963 to 1999"'. I am advised that this is incorrect because there is no pre-existing citation of the 1963 to 1999 Acts in which to include this Bill. There is a pre-existing citation of the 1963 to 1998 Acts, which was why the reference was correct in the Bill when it was published in 1998 but it is not correct now.
The Deputy was very convincing but we will examine it before Report Stage and consult him in the meantime.
Amendment, by leave, withdrawn.
I move amendment No. 82:
In page 24, subsection (3), line 37, after "provisions" to insert ", but no day so specified shall be more than six months later than the date of passing of this Act".
No date is specified for bringing the various provisions into force. I am anxious to encourage the Minister to do it as quickly as possible.
My intention is to make a commencement order for the Bill before the end of the year. The reason it is not specified is that several sets of regulations must be made, guidelines drawn up and drafts produced for discussion. We are trying to give ourselves maximum time. I have no problem with tabling an amendment on Report Stage to bring the Bill into force on 1 January 2000, which would be in approximately six months.
Amendment, by leave, withdrawn.
Section 42 agreed to.
Title agreed to.