Amendment No. 2 is an alternative to amendment No. 1, amendment No. 32 is related to amendment No. 1 and they may be discussed together by agreement.
Planning and Development Bill, 1999 [Seanad]: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 15, line 20, after "and", to insert "Sustainable".
I appreciate that amendment No. 2 is an alternative. I tabled amendment No. 1 to describe this Bill as the "Planning and Sustainable Development Bill". The previous Government and this Government have gone to some trouble to emphasise that we are at aiming to work with the concept of sustainable development. Given the importance of this Bill, that concept deserves to be brought within its scope.
This matter was discussed during the debate on the Bill in the Seanad. The Minister would not accept the amendment at that stage on the grounds that there is no definition of sustainable development in the Bill. I am not sure that is a sufficient reason for rejecting the amendment. Because there is not a definition of sustainable development in the Bill, I am sure the Minister will not tell me that we stop adhering to a sustainable development policy. He will not argue that because that would be utterly absurd.
As the Minister reads the various amendments to the Bill tabled by Opposition Members and Members on his side, I am sure he will agree that a good many of the amendments are designed to copperfasten the notion of adherence to the idea of sustainable development. I argue that describing the Bill this way in the short title would clearly reflect our intention. It would also make it clear to anyone who would read the Bill or take an action on foot of it that sustainable development is the orientation of the Bill.
I hope Deputy Gilmore will not mind my saying - and I am sure he will not be surprised to hear me say - that I prefer my amendment to his because while I understand his concern with sustainable land use, I think his amendment is too restrictive. There is a great deal more to the idea of sustainable development than sustainable land use. It would be a pity if we were to entitle this Bill in such a way that it considered only narrow land use issues. There is a great deal more in this Bill than the question of land use. If sustainable development means anything, it means we must take a holistic view of our development activities rather than simply concentrate on the idea of land use.
Two issues are addressed in these three amendments. There is the concept of sustainability and whether the Bill is addressing development or land use and which is the wider concept.
With regard to Deputy Dukes's point about the term "land use", I would have thought that to be a wider concept than the term "development". Many of the provisions in the Bill, particularly those relating to preservation, conservation and so on, are not related to development but, in some cases, to its absence. My preference for the term "land use" as opposed to "development" is to convey a wider context for planning rather than simply development. The term "development" in planning legislation is a somewhat dated concept and needs to be widened.
We all think we know what the term "sustainable" means, yet there are differing views on its meaning. The word "sustainable" is repeated throughout the Bill as an adjective to the word "development", but it is not used consistently in that manner. In some sections reference is made to "development" without the adjective "sustainable" attached to it, while in other sections, development is described as "sustainable development". Is the Bill providing for two types of development. Will there be "development", which is not qualified by the term "sustainable" and "sustainable development", the definition of which is not clear?
The Bill is lacking in not having a definition of "sustainability". Amendment No. 32 proposes a definition, based on the Brundtland definition, which has widespread acceptance. The term will have to be defined because we will open up a gravy train for lawyers if we introduce legislation, one of the primary terms of which is not defined. I have offered a definition which I believe should be reflected in the Title of the Bill. This issue must be resolved.
Deputy Dukes said he preferred his amendment to Deputy Gilmore's, with which I agree. However, I prefer the Bill as worded at present. I tried throughout the Bill to use the normal accepted wording in so far as possible. In some instances this was not easy in terms of technical definitions and so on. For example, I included in section 10 the word "zoning", which was not used previously. "Sustainable land use" does not appear in the Bill itself, therefore I am not prepared to change the Title. The principle of the legislation is to change from proper planning and development to proper planning and sustainable development. That would make the case for Deputy Dukes's amendment stronger. However, sustainable development is a dynamic concept. Deputy Gilmore said we will create a minefield for lawyers if we do not provide a definition. I take the opposite view because if we define "sustainable development" in the Bill, it will become very rigid and lawyers will have a field day. Anything which is not defined will be deemed by the courts and lawyers to be outside the concept of "sustainable development". Planning and development was not defined in the 1963 Bill and this has not given rise to any great difficulties. Given that the concept of sustainable development is woven throughout the Bill and has been given practical effect, it is not something we need to define rigidly, causing ourselves and others many difficulties in the years ahead. Therefore, I ask the Deputies to withdraw their amendments.
If the Minister's tone were not so negative, I would be pleased with some of what he has just said. He has made my case for me in that he pointed out that section 10, which deals with development plans and is at the core of what we are attempting to do, speaks about sustainable development. The whole notion of development plans is central to this and the Minister rightly speaks in section 10 about these plans being concerned with sustainable development. The section reads, "A development plan shall set out an overall strategy for the proper planning and sustainable development of the area of the development plan. . . ". This is one good reason for including the wording in the Title. The Minister rightly pointed out that the 1963 Bill did not define development and there has been no trouble dealing with the issue since. This Bill, on the other hand, defines development in section 3, but there is nothing in the section that would suffer or be made any less clear if the Bill were described as "a planning and sustainable development Bill". These are three good reasons for accepting my amendment.
I do not wish to be unnecessarily contentious, but this is an important issue and I will insist on the amendment being accepted. I will divide the committee on the issue, if necessary. I invite Deputy Gilmore, without prejudice to his amendment, to support the first amendment. The Deputy has good reason to support the amendments because his amendment No. 32 defines "sustainable development", not "sustainable land use". Therefore, it would be entirely logical and in keeping with his concern about sustainable development to support my amendment. This amendment would give a clear signal of what we have in mind when we go into a whole new phase of planning and sustainable development.
I have no difficulty supporting Deputy Dukes's first amendment. My point is that I believe the term "land use" as opposed to "development" is a wider and more modern concept. Obviously, we can debate the matter. The core issue we are addressing is the term "sustainable".
In presenting the Bill, the Minister argued that it was shifting planning matters from planning and development to planning and sustainable development. I am not entirely clear what that means. I have an idea about the concept and we could all speak at length about it. It is one of these concepts which at one level can be purely aspirational but if included in legislation it has to be defined. I do not think a new concept can be put into the core planning Bill, which will probably last for the next quarter of a century, without specifying what it means.
In the part of the Bill which deals with development plans, Part II, Chapter I, section 10(1) states:
A development plan shall set out an overall strategy for the proper planning and sustainable development of the area of the development plan . . .
Part III deals with control of development. Section 34(1) states:
Where -
(a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land,
In the development plans portion of the Bill, development is described as "sustainable development". In the part dealing with control of development - the making of individual planning applications - the term "sustainable" has disappeared, and there is a different term, "development". Perhaps the Minister would explain the reason for the distinction. What is the difference in this Bill between development - where development stands on its own as a single word - and sustainable development? The Minister said a new concept is being introduced in this Bill called sustainable development. I agree with that in so far as I understand it but I do not know what it means in the Bill and I do not think anybody else knows either. To describe it as a dynamic term is a recipe for what? What is put into legislation must have some meaning. We cannot say it is dynamic because it means different things to different people and it can have one meaning today and another tomorrow. There will have to be some precision about what the term "sustainable" means. I am pleased this has arisen on the first amendment because the whole Bill is peppered with the term. We need to be clear on it from the outset.
I am interested to hear this discussion from Deputies Gilmore and Dukes. The Minister said he does not wish to be overly prescriptive in the definition of "sustainable development". If it is not put in place in a Bill which has legal force where else can it be put? Suddenly the notion of sustainable development is put down the hierarchy of objectives. Where does the Minister propose to put the definition if not within the short title?
This is an interesting discussion. I like the idea of introducing the word "sustainable". It is a dynamic process. The Minister is correct in saying that sustainability is something which can change over time, change with technology and change between one place and another. That is the objective of the Bill and it should appear in the title but not when dealing with development plans or planning applications where the assumption is that any development will have the objective of being a sustainable one. I do not think there is a conflict.
Members are making my point in that everybody has a different view of what is "sustainable development", by trying to define it in the Bill and imagining what will be done by lawyers if it is defined. If Part V was brought before the courts they would have much more fun with definitions of sustainable development.
Deputy Gilmore referred to control of development as it relates to permission for particular structures. The word "development" is defined in section 3. Sustainable development is the concept relating to how we direct the building of houses, factories, etc., protection of the environment, amenities and so on. Deputy Hayes asked where else would the definition be put if not in the title? It can be put into guidelines or regulations under the Bill which are much more flexible than primary legislation and allow for the dynamism I have mentioned, and as referred to by other speakers. What can be defined as "sustainable development" in one part of the country may not be sustainable in another. If hard and fast definitions are put in place and if lawyers have to try cases throughout the country, the planning and development Acts would be tied up in knots for several years. To be helpful, I am totally against the concept of putting a definition of "sustainable development" into the Bill for the reasons outlined. If we have to have a vote on it, so be it.
I would not be as opposed to Deputy Dukes' amendment. I will consider it for Report Stage on the clear understanding that I am not putting in a definition of "sustainable development". We can argue until the cows come home but I am not putting a definition of "sustainable development" into the Bill. I will seek further advice from the Attorney General to see whether the insertion of "sustainable" in the title would mean I would have a legal obligation to put in a definition. If Deputy Dukes withdraws his amendment with leave to reintroduce it on Report Stage, I will consider it further.
In view of what the Minister has said and if the committee allows it, I will withdraw the amendment.
That is progress so far as the title of the Bill is concerned but not in so far as the substance of the issue being discussed is concerned. I am not happy with the Minister's absolute refusal to explain, in the legislation, one of the central terms used in it.
The Minister has said that the term "development" was not defined in the 1963 Act. However it is defined in this Bill and the Minister has drawn our attention to the definition. It is defined in section 3 in a way which makes no reference to the concept of sustainability. This Bill will create a situation in which development plans drawn up by local authorities, and regional planning guidelines drawn up by regional authorities, will contain all sorts of waffle about sustainability, but sustainability will not be considered in individual planning applications. These will be determined under this Bill by reference to the term "development", which is not qualified by the adjective. This will give rise to another layer of consideration of whether a planning application which is approved by reference to development as defined in this legislation conforms to regional planning guidelines which have been drawn up on the basis of sustainability. It is legislative lunacy to legislate for something which is not defined or described.
If the Minister is reluctant to define the term in a couple of sentences, I suggest another way of doing so. He could state in this Bill what the term "sustainability" includes. I am sure this can be done in a way which retains the dynamism of the concept while setting out what we are actually talking about. I cannot recall legislation being enacted in which a central term which was used repeatedly throughout its various sections was not defined or described and left as a loose, woolly concept in the Minister's head. We may all agree with this concept and share a certain understanding of what it means but this is not a good way to draft and present legislation.
If the Minister cannot specifically define the term, I ask him to consider a descriptive section which would explain what the term means. Professional planners, members of local authorities, members of An Bord Pleanála, the Judiciary, and the wider public who will use this legislation must have some direction as to what this term means and what the distinctions in the legislation amount to.
The place to make it clear to the Judiciary, the lawyers and anyone else who will interpret the term "sustainable development" is in guidelines and not in primary legislation. This is a common concept in legislation of all sorts.
"Development" is defined in page 17 as having "the meaning assigned to it by section 3". Section 3 defines "development" as "the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land". Planning permissions are decided on that definition.
Is that different from sustainable development?
This refers to individual planning applications which are dealt with in section 34(1). The concept of sustainable development is referred to in section 34(2). It states that:
When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area.
Consideration of sustainable development relates to the building of houses and factories, zoning, the protection of the environment, the provision of amenities and so on. Development must be defined in the Bill because it must be dealt with at individual planning application level. The concept of sustainable development is more effectively dealt with in the context of development plans and so on. A local authority must make its decision on the basis of sustainable development, in its own view and in compliance with the development plan. That is the nearest I can come to a definition. I hope I have clarified matters for the Deputy. Development and sustainable development are two different concepts. Development is specifically defined in the Bill while sustainable development deals with broader concepts and issues. They are not mutually exclusive.
I think we will return to this topic. We have exhausted it for the moment.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 1 agreed to.
SECTION 2.
Amendments Nos. 3 and 16 are consequential on amendment No. 564 and all may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 15, subsection (1), between lines 22 and 23, to insert the following:
"'acquisition of land' shall be construed in accordance with section 196(2), and cognate words shall be construed accordingly;”.
The first of these amendments introduces a definition of "acquisition of land". The term is construed with section 196(2). In turn, the provisions of section 196(2) are being reworded to ensure that local authorities have comprehensive powers in relation to the acquisition of lands and other rights including, for example, rights over or in water. This relates to acquisition either by agreement or by compulsory purchase. The additional provisions over and above those in the published Bill are based on the provisions of section 16(1) of the Industrial Development Act, 1986. The amendments do not so much change the existing law as clarify and bring together existing powers to acquire lands and rights. Subsequent changes are also made to the definition of land to reflect those new provisions. It amounts therefore to a clarification of the issues involved rather than a huge change.
Are the amendments connected in any way with the Minister's intentions on foreshore activities?
No.
Are they the subject of a separate amendment?
They are. The Deputy has yet to receive it.
What does the word "cognate" mean?
For the avoidance of doubt, when the Minister produces the promised amendment may I take it the same facility will be granted to Members of the Select Committee to table amendments to the corresponding section?
The Deputy may.
Amendment No. 16 defines land as including any structure and any land covered with water, whether inland or coastal. Does this mean the remit of planning authorities will now cover structures built on inland waterways? Will a person have to apply for planning permission to build a structure on Lough Ree, for example? Does it also mean a person will have to apply for planning permission to build a structure on the foreshore? How far out does this stretch? How does this amendment reconcile with the foreshore Acts?
Amendment No. 3 states that the words "acquisition of land" shall be construed in accordance with section 196 which deals with the acquisition of land by local authorities. I presume this will include the acquisition of land for any of the purposes outlined in Part V of the Bill which deals with the provision of social and affordable housing. Will the Minister confirm this? IBEC suggested this morning that land should be compulsorily acquired for housing purposes, a proposal with which I agree. Will the provisions of the Bill enable a local authority to do what IBEC recommends, that is, to compulsorily acquire development of agricultural land, in particular for the purposes of providing housing under Part V of the Bill?
On the proposal trumpeted in great detail by IBEC on radio this morning, local authorities already have the power to compulsorily acquire land for any purpose related to their functions. Listening to the news reports it sounded as if IBEC, which surprisingly may be supported by ICTU, was proposing that the taxpayer should pay money for land. Once the State enters the market in a huge way to acquire land for housing or otherwise it is inevitable that the price will inflate. I can be corrected if I am wrong, but IBEC appeared to be proposing that land should be acquired at great expense by the taxpayer and handed over to builders to make a big profit. This proposal should be thought through a little more. I do not think it would have the support of Deputy Gilmore or, I hope, ICTU.
All the amendment does is clarify that local authorities have the power to acquire land for housing and other purposes. I confirm that they will able to acquire land for any of the purposes outlined in Part V of the Bill. On the CPO procedure, the final appeal will be heard by An Bord Pleanála rather than by the Minister. In that connection the Bill is a tidying-up operation. It will apply to all the statutory functions of local authorities, including the provision of social and affordable housing.
On amendment No. 16, in respect of which the Deputy cited Lough Ree as an example, there will be no change in procedure. On the specific question of foreshore activities, a matter also raised by Deputy Dukes, these will be the subject of a separate amendment which will be tabled shortly.
I will not make a case for anybody else but the Minister has a different understanding of the proposals about which we have heard. Without giving offence to anybody, the proposals branded as new yesterday and today may be new to those making them but, as the Minister said, the powers already exist. Local authorities already have the power, for example, to acquire land, compulsorily or otherwise, at market prices for any purpose which falls within their remit. It is undoubtedly the case that if local authorities were to enter the market in a substantial way to acquire land for any purpose it would have an effect on market prices. If they were to enter the market in a substantial way and compulsorily acquire land, other things being equal, it may have a lesser effect on market prices. There is no way of acquiring land, voluntarily or compulsorily, without affecting the price of land.
A local authority is perfectly within its rights to acquire land either on the open market or compulsorily and subsequently zone it for housing, industrial or other use. In so doing it is not infringing on anybody's rights. In the first instance, one has an arrangement freely entered into between a willing seller and a willing buyer and, in the second, one has an arrangement entered into compulsorily by a more or less unwilling seller and a willing buyer. In the context of today's discussion on land and its availability, it is important to remind ourselves that one of the reasons local authorities do not compulsorily acquire land more often, is that the courts, which have a real concern, do not allow them in exercising their right to unduly oppress people. The right of local authorities to compulsory acquisition has not been allowed by the courts to be interpreted as an untrammelled right which interferes with people's property rights. The fact remains, however, that local authorities are entitled to acquire land compulsorily and to deploy the methods for fixing a price. It is a pity local authorities have not used that power more often. The Minister should encourage them to do so in the interests of proper development - which has not been defined so far - or sustainable development.
In law, if a local authority acquires land, whether on the open market or compulsorily, it is entitled to sell the land to any other person at a price it considers reasonable. If a local authority wishes to acquire land, either compulsorily or on the open market, and sell it to private individuals to build either individual houses or estates at a price which reflects only the cost of holding and financing the land, without making a profit, it is entitled to do that. I make the point - and I will return to it when we reach Part V - that the local authority in acting this way gains, in a real sense, the development increment and the value of land for the community. To start what the French call a "procès d'intention" against local authorities in acquiring land, either freely or compulsorily, and then making it available to either individuals or builders to build houses at reasonable prices, is a mistake. A certain body of doctrinaire opinion is so blind it does not see that this is probably one of the most effective ways for local authorities to take the steam out of house prices. This will be useful in setting the tone for debating later sections of the Bill.
As I do not come from a coastal county, will the Minister clarify the definition of foreshore and coastal lands which are covered by water? Does one amendment supersede the other regarding the definition of where one kicks in and the other does not? Is there a definition on the distance from the shore where land is covered by water? If that is the case, would the same apply to some of our lakes where large tracts of land are flooded?
Deputy Hayes asked a question about cognate words some time ago.
We were going to include a definition about that as well, Minister.
There is a legal definition. The Bill refers to the acquisition of land in many different places but it may also refer to a local authority acquiring land - there are references to "acquiring land". All the phrases are the same and mean the same thing. On the question about land - whether inland or coastal - covered by water, we are referring to where the local authority area goes beyond the high water mark. There is an example of this in Cork harbour. Through legislation, I have learned that "or" has the same meaning as "and-or". The two are not necessarily mutually exclusive.
That phrase, of course, has not been overtaken by political correctness, like "he-she".
No, not yet.
The definition relates to where the county boundary goes into the water?
Yes.
Amendment agreed to.
I move amendment No. 4:
In page 16, line 10, after "structure", to insert "dirigible,".
The text as it stands refers to inflatable structures. In addition to these ghastly inflatable structures on filling stations and cafes, there are balloons which are tethered. One can be seen at Newlands Cross. Some balloons have fins on them making them capable of being steered, as if one would be daft enough to want to do that. It would be a pity not to have these included for a complete definition.
A colleague asked me what is a "dirigible". The best answer I could give him was the Hindenburg. Some of these things are being used and I have seen them in operation. A few companies in the UK build large aircrafts with gas filled balloons over them, cabins underneath and a couple of engines. There are large advertisements on them which can be seen by many people. They are as much a blot on the environment as other inflatable structures. However, one advantage is that they are not always in sight and they do not fly at night. As I said, such things should be included for a complete definition.
The only question which arises is where will we put the planning notice?
Perhaps that should be inflatable also.
That is what the Minister has a good Department for. He might as well put it up as another dirigible.
I do not have a big problem with it. There was a discussion on this matter in the Seanad. Senators Coogan and Norris took part in it and we came up with "inflatable structure". This appeared to be acceptable then and I still think it is. Perhaps the Deputy will accept the wisdom of his colleagues in the Seanad.
Would the Minister call a flying machine a structure?
Not if it is not tethered to something.
That is the difference. A balloon is tethered but a dirigible does not have to be tethered to fly around. These tigers and similar things we see on the top of buildings are inflatable structures. I suggest the Minister takes this under "advisement" and returns on Report Stage.
Would a flotel fall within that definition?
That is tethered.
Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 are related and may be taken together by agreement.
I move amendment No. 5:
In page 16, line 17, after "horticulture," to insert "turbary,".
The two amendments are alternatives which try to find a better definition and I do not mind which one the Minister adopts. Under the definitions of agriculture and exempted developments as the Bill stands, turf production, which until now has been an exempted development, becomes a non-exempted development. In order to engage in turf production a person would now have to get planning permission. This was discussed in the Seanad and the Minister said that it was his intention under other provisions in the Bill to allow for exceptions to that non-exempt status by regulation - that the Minister would come along at a later stage and by regulation specify some types of turf production which would be exempt, production for private use for example.
I propose that turf production should continue to be an exempted development but if the Minister is concerned about certain types of large scale turf production, he could come along later and by regulation remove the exemption from that type of development, thus making it subject to planning permission. That would alter the balance.
This is important because the vast majority of people engaged in turf production, even on a commercial basis, are engaged on a very small scale. It is an activity commonly found in counties Roscommon, Galway, Mayo, Donegal, Kerry, Offaly, Kildare and in parts of County Tipperary, where there is a long-standing tradition of people having access to areas of bog where they harvest turf for their own use and for sale to their neighbours. I am not talking about the kind of development in which Bord na Móna is involved, harvesting peat for peat moss or the few large scale private operators who harvest milled peat. I am talking about the thousands of people who rely on turf cutting to provide fuel for themselves and to supplement their farm income. The proposals in the Bill would create the possibility that this supplement to their livelihoods, which can often mean the difference between survival and penury, would become an activity for which they would have to get planning permission.
There are already substantial legislative powers to remove bogs which are important from a conservation point of view from turf production. I am not impressed by the approach taken by Dúchas to the designation of these areas for preservation. That is not, however, the business of the Minister for the Environment and Local Government and it is not the business of this Bill. The business of this Bill is to regulate development and, as it is written now, it would include the regulation of turf production. It represents an unnecessary and unwarranted interference in an activity which is part of a traditional way of life for many people, and which is an important part of their income. The people involved in small scale turf production use it for fuel in their own homes and a substantial number sell it to their neighbours. We are not talking about huge quantities, nor are we talking about people with large incomes.
In adopting this approach the Minister is using a sledgehammer to crack a nut. I suggest we go about this in the opposite fashion, that we classify turf production as an exempted development and allow the control of larger scale production where the Minister believes there is a reason to do so for aesthetic, environmental or development reasons rather than to impose such a burden on everyone involved in the business.
There is confusion about this section and it is important that the Minister clarifies it. At the outset we must draw a distinction between virgin bog and non-virgin bog. Virgin bog in its natural state is the habitat of certain flora and fauna - the acrotelm - and that is what Europe is excited about. Its concerns are related solely to virgin bog and there seems to be confusion between the two in the Bill.
Once a person starts to drain a bog, the sponge which grows on top of it disappears because it can no longer survive. When drainage is installed virgin bog disappears. Turf cutting is a tradition which should be encouraged. My own family has been involved in it for many years, including one memorable occasion when we washed a load when we accidentally drove into the canal. The Bill, if passed as in its present form, would be a cause of serious concern for those involved in the tradition. The number of households affected would run into the thousands.
I am concerned about the effect the Bill would have on the activities of Bord na Móna. Many of its activities would require planning permission every five years, placing an unnecessary burden on it. In the absence of an exemption, drainage works or peat harvesting, irrespective of size, will require planning permission. That is hardly something we could support. Only virgin bogs should be subject to planning requirements.
I support the sentiments expressed by my colleague, Deputy Dukes, on both these amendments. It is of fundamental importance that the traditional right of these people to cut turf, a right they have had for generations, is maintained. That has been copperfastened in the 1963 Act which exempted turf cutting under the term "turbary" as being an exempted development. As the Deputy said, we are talking about small scale production for domestic or commercial purposes, yet a number of people have invested a great deal of money in machinery to protect bogs rather than damage them using the sausage machine, which is nearly obsolete at this stage. The turf industry has supported people's livelihoods for generations and it will continue to do that. I made these points on Second Stage and gave examples of people whose livelihoods could be destroyed by the Government's proposals. Turf is our only indigenous fuel source and oil prices are increasing. During the Emergency people cut turf because it was the only fuel source to which they had access. It is also of strategic importance in this case.
Turbary rights are traditional but they are being removed. Most turbary plots are approximately one acre, and half of that has been cut out in most active bogs. There are only half acre plots in many parts of rural Ireland. The State owns most of the remaining bogs and it can do whatever it likes with them. People with turbary rights should be allowed cut out the remaining part of their bogs.
The Minister also made the point in correspondence that he was going to exempt domestic production through regulation. How will he define the difference between domestic and commercial production? If a man cuts a spread of turf for himself and then cuts more turf and sells it to his neighbour, will he be defined as a commercial producer? If a man cuts turf for himself and then sells a couple of plots to defray the cost of cutting, will he be defined as a commercial producer? We need to get down to the nitty gritty, but by the time we do that this legislation will have been passed, the regulation will have been rubber-stamped by the House and set in concrete and we will not be able to do anything about it.
On Second Stage I gave the example of the different interpretations of the habitats directive and when the regulations were implemented they treated it differently. The habitats directive prohibits turf cutting on designated bogs which are environmentally sensitive.
Dúchas handled this issue very badly. This legislation will only copperfasten bad directives and make them worse. It will also have implications for the compensation to which these people are entitled. If people must get planning permission to cut turf under this legislation it will limit the amount of compensation to which they are entitled and the value of their bogs in their negotiations with Dúchas.
Under this legislation planning officials, who are snowed under with work, would have to deal with these cases. Local authorities are experiencing great difficulties recruiting people to their planning sections. In the past year there have been seven planners in my electoral area. Sustainable or consistent decisions cannot be made with seven different planners. There will be only one planner in County Roscommon after Easter.
This legislation will add another tier of regulations. It will lead to more bureaucracy because planners will have to assess planning applications, get the opinion of Dúchas and others before a decision can be made. Instead of this legislation freeing up the planning process, it will clog up the system in counties like Roscommon where there are large tracts of bogs that are still active. There is a need to control large scale production of turf. The vast majority of people involved in turf cutting are small producers. I want any changes written into the legislation because I do not want people to interpret matters differently in the future.
Deputy Power talked about virgin bogs. There are virgin bogs in many parts of the west and hoppers cut the turf on the edge of the bog, which does not affect the bog's aquifer. In many cases these are half acre plots on the fringe of thousands of acres of bog and they will not have a major impact on the bog. It is fine for Deputy Power to talk about virgin bog in County Kildare. Because of drainage problems Bord na Móna has taken over the majority of its bogs, but that has not been the case in many parts of the west. Bogs are fundamentally important there because we are talking about livelihoods.
Deputy Power also made the point that turf cutting is a tradition. It is not only a tradition but a traditional right that people have had for generations. I ask the Minister to examine and accept these amendments and to introduce, as Deputy Dukes has said, regulation for the large producers.
I am trying to imagine how this provision will be enforced. What is the Minister proposing to do here? Enforcement officers from county councils would have to travel to the bogs concerned and tell the turf cutters to go home and apply for planning permission to cut their banks of turf. That will not give credibility to the planning process or to the enforcement of regulations.
We talked earlier about sustainable development. Traditional turf cutting by the owner of a turf bank for his or her use, or with some extended use, satisfies most of the criteria for sustainable development. Intensive development of bogs and turf cutting activity does not satisfy that criteria. Bord na Móna is responsible for some of that intensive activity. Turf was used to produce electricity which was hardly the most sustainable use of what is a very finite resource. We need to draw a distinction between the small scale turf producer and the person who cuts turf for his or her own use or limited use.
The matter of distinction also arises in the context of agriculture. We should reflect on whether the exemption of agriculture in all of its forms, irrespective of the degree of intensification, from the planning process is a good thing. Should a line be drawn between agricultural and non-agricultural development or small scale sustainable use and large scale intensive use? As things stand, someone doing the traditional sustainable job of cutting a bank of turf every year for their own use will now require planning permission. If someone, for example, decides in the next few years to grow a couple of hundred acres of a genetically modified crop, particularly if trials take place as some people expect they might, they will not have to apply for planning permission because seed growing is an exempted development under this legislation. We must draw a distinction between sustainable agricultural use and intensive agricultural use which would also deal with the turf cutting and production issue.
I do not want to hold up the Bill's progress but it would be remiss of me if I did not say a few words about turf cutters. I spent the greatest part of my young life cutting turf in the bogs where there were meitheals, as they were called at that time. I remember one day there were 33 men and women with pikes, sleáns and shovels in the bog. Turf is now cut by machine.
There is a turf burning power station in Cahir-civeen in south Kerry which the small and big farmers in the area supply. This is a source of income for them and it is something they have availed of for years. We cannot limit these people to one acre of bog because it is scarce. They are making the best use of the bog that is left. People who cut their own turf a number of years ago must now get a neighbour or a machine to cut it for them and they can sell it dried.
I appeal to the Minister and to Dúchas to exempt turf cutting from the planning regulations. I compliment the deputation last week from County Roscommon which implored us to exempt turf cutting because people in the area have cut turf for a number of years.
I spent a great deal of my younger days in the bog cutting and turning turf.
It did not do the Minister any harm.
It did not. It built up a great appetite and a bit of character. I am well aware of what Deputies mean when they talk about the tradition of turf cutting and turbary rights in rural areas and the bank of turf which often made the difference between survival and a little comfort during the winter months. I do not want to do anything to hinder that tradition and right, and there is nothing in the Bill which will do that.
Section 4(2)(a) deals with exempted development. The fears expressed will be more than adequately met by regulation under the planning code. We no longer live on an isolated island on the west coast of Europe. We must take into account the fact we are part of the EU and it has a say in some of the things we do.
Opposition Deputies have raised on a number of occasions the fact that matters are being referred to the European Court of Justice and that threats of legal action have been made against the Government and the country. Other people exaggerate slightly when they speak about threats to Structural Funds and regional funds for Ireland being in breach of various EU directives. We cannot decide willy-nilly to ignore the realities of life.
We are and have been in the European Court of Justice in relation to the exemption and transposition of the EU directive in 1999. It deemed we were in breach of an EU directive on peat extraction and forestry, which is also covered in this legislation. In light of that judgment and the impact of the large scale peat extraction operations around the country, which have an effect on the environment whether we like it or not, it was decided that peat extraction should be brought within the planning control system. That is why we are amending the definition of agriculture to remove the blanket exemption from planning permission for peat extraction. We have no control if someone decides to open up 45 or 49 hectares of bog for commercial development. According to the EU, that is wrong because we should have control under the EIA directives, apart from anything else. We must address that issue.
The suggestion made by Deputy Dukes is simple and straightforward but it would not change the position as found by the European Court of Justice and we will not get away with that. We decided to remove the exemption in order that we could bring all types of peat extraction within our control under the planning laws and then to use the regulations to meet the strong cases being made by everyone here in relation to the smaller commercial operators. We have other obligations under codes of legislation at a European level, such as SACs and so on. Europe is not satisfied that we are implementing those properly. They will have to be dealt with as well in so far as they come within the planning laws.
I assure Deputy Dukes who tabled these amendments and those who have spoken that a specific exemption will be included for domestic turf cutting where a person cuts his own bank and those of two or three neighbours. That has gone on and it is traditional.
By dealing with the problem we have at a European level in this way, we will be able to ensure large scale peat extraction is dealt with properly from a planning and environmental point of view, which is what this is all about, while smaller scale domestic cutting for personal use will not be affected. In deference to conversations Deputy Dukes and I have across the floor, I do not believe those regulations would have to come before the House for direct ratification. I give an assurance that we will table an amendment on Report Stage if we need one.
In regard to the turbary end of it, we would insert a specific commitment in the legislation on Report Stage to ensure those regulations would have to be confirmed by the Houses of the Oireachtas because, at the moment, they would not have to be. I am talking specifically about turbary about which Deputy Dukes has tabled an amendment. There is no alternative to doing it in this way.
Having to confirm the regulations will mean Deputies will have final scrutiny of the regulations as they come in. They will not be slipped in and confirmed without anybody discussing them. I give an undertaking to amend section 4(2)(b) to allow for discussion and confirmation of that in regard to turbary.
In legislative terms - I am not being offensive when I say this - the Minister is asking us to buy a pig in a poke. We have not seen the regulations. I am delighted to hear the Minister is going to do something about the form of regulations under section 4. He needs to do much more about that but we will come to it later. We have not seen the regulations so we do not know about what we are talking.
I fully understand the Minister's position about SACs. We are not arguing about that and it is not affected by this Bill. As I said, I am not at all impressed with the way the SACs have been drawn up and I gather we are, or are on the threshold of being, in bother with the European Union about SACs. However, that is a job for somebody else and for another Bill.
I do not believe anybody is arguing about the substance of what is involved in SACs. What we are arguing about is small scale turf production. I would like to know if the Minister has had specific advice to the effect that exempting turf production in the way I propose and providing for regulations to control large scale turf production would not meet the requirements of the European authorities. If the Minister has not got specific advice to that effect, then I cannot accept what he said and he is going about this the hard way. He is saying everybody has to be corralled and he will decide who will get out of that corral. I want him to say he will select the people who have to be corralled because they are a much smaller number. Large scale turf or peat producers are a much smaller number of people. To take Deputy Gilmore's illustration, the inspectors will find it easier to find the large scale producers than to go chasing down boreens, bog roads and across plank bridges to find the small scale producers.
I repeat that unless the Minister has specific advice to the effect that an exemption of the kind I propose with regulations to deal with large scale producers would not meet the case being brought against us on the European side, I will not accept what he said. If he does not have specific advice to that effect, I want the opportunity to ask him to get such specific advice and to communicate it to us by the time we get to Report Stage.
I agree with the thrust of what Deputy Dukes said. The more I look at this definition which is causing the problem theclearer it is to me that the problem arises from the blanket exemption of all agricultural activity from the planning process, irrespective of the scale of the activity.
The problem in relation to turf cutting has arisen apparently because the EU has blown the whistle on it. The Minister has to introduce an amendment which subjects turf cutting to the planning process and, somewhere down the line, bring in legislation or regulations to meet the requirements of those who have objected to that.
We might deal with the problem a lot more effectively if we were to look at this whole area by reference not to the activities which are included or excluded but to the scale of the activity which is included or excluded and which would deal with items such as intensive pig production. What will happen if the EU says intensive pig production should be subject to the planning process? Under this section, the breeding and keeping of livestock and so on is exempted development. Not only is it an exempted development but all the buildings and so on associated with it are exempted development. We would be better off if this was recast by reference to the scale of the activity rather than to the activity itself.
This is very high handed of the EU but that is neither here nor there because 14 countries, some of which had bogs but which were cutaway, are telling us we cannot use ours for fuel after having destroyed their own peatlands and wetlands many years ago. The EU is placing controls on this and it has done so through the habitats directive. That is the substance behind it and the designation of SACs. The reason the EU is adopting a heavy hand in relation to the habitats directive is that Dúchas and the Department and the Minister of Arts, Heritage, Gaeltacht and the Islands have been like a bull in a china shop in implementing it and could have resolved this problem a long time ago if there was proper consultation and a proper way to implement those directives.
The EU judgment relates to large scale production. The problem was that the exemption only covered production under 50 hectares. We had clusters of 49 hectares and 45 hectares which developed into large scale peat production. This is where the EU came in, and rightly so. There is nothing to stop the Minister reducing the exemption to five hectares or even one hectare which would resolve the problem for 99% of turf producers. It would mean large scale production would not be exempted under the regulations. In the majority of cases, we are talking about half acre plots. This could easily be resolved by not exempting anything above one hectare or five hectares in the regulations which he could implement afterwards.
I come back to the question I asked about the way we will define the difference between "commercial" and "domestic". As Deputy Dukes said, we are buying a pig in a poke. The Minister says he will bring in regulations but we do not know what they will be. The people involved in this campaign have a bad taste in their mouths as a result of the way Dúchas treated them in the past and the interpretation of the legislation that was taken at that stage. They do not want a repeat of that experience with the Planning and Development Bill. If the Minister is talking about bringing in regulations, the least he should do is give us some idea of what he means. That is fundamentally important. We can still retain the exemption and fulfil the requirements of the EU judgment. Under the judgment, largescale production under 50 hectares was exempted but consolidation of a number of developments close together was causing detrimental damage to the environment. I will not argue with that, but we can get over that by reducing the limit dramatically. Any largescale production would have to have a certain amount of bog under production to make it commercially viable. If the limit were reduced dramatically, the Minister could keep the exemption in place and regulate for the large producer.
Will the Minister explain the position in relation to the activities of Bord na Móna? There is a concern that it will have to seek permission for many of the activities in which it is currently engaged.
May I make just one point? Everybody seems to be talking in terms of the directive on the SACs. I am not talking about the SAC directive. I am talking about an EIA directive and the court judgment in relation to that. I do not want the two issues to be confused because they are quite distinct.
In relation to Deputy Power's question about Bord na Móna, if Bord na Móna opens a new bog greater than the size we decide in the regulations, it would have to apply for regulation but to my knowledge most of the bogs it currently has are being cut. If the peat moss is not being removed, many of them are drained and forward planning is done in respect of them also. I would not worry unduly in relation to Bord na Móna and its operation. If it found a virgin bog somewhere, as the Deputy referred to earlier, that was above whatever level we decide is the threshold, obviously it would have to apply for planning permission like anybody else.
In relation to the other points that have been made, the EIA directive we had gave an almost blanket exemption for anything up to 50 hectares but the court decided we were wrong in that regard and referred to the impact on the environment as being the major aspect. We just inserted the blanket 50 hectares and, as Deputy Naughten rightly said, we received no applications or EIAs for anything over 50 hectares because people operated in 49 or 50 hectare lots, which brought this matter to the attention of the European Court of Justice. That was the reason we were there. The judgment had to be taken into account when we were drafting the Bill. It was obviously taken into account by the Department and by the Attorney General when we were drafting the Bill, and this was the best advice as to the best way to deal with the court judgment and to give us some flexibility as to the way we dealt with the new situation that had arisen, which meant that we could not simply offer blanket exemptions for bogs under 50 hectares. We had to have regard to the significant effects any peat extraction might have on the environment. It is for that reason we are going the particular route we have chosen.
We have three levels of planning control within our planning system. The first level is exemption, where we basically have no planning control except in terms of the size of a house, an extension or whatever. The second level is fullscale planning permission, which is what generally applies, and the third level is planning and the environmental impact assessment, which is a more severe and stringent form of planning control. What we are proposing in the Bill is to bring everything under the planning code to exempt the people we are talking about, the smallscale domestic turf cutters, by means of regulation. There will be full planning control in respect of those involved in larger bogs and for those involved in very largescale developments, we are talking about planning and EIAs.
As we said before, there are particular problems in different areas in respect of SACs. They have to be controlled also under the planning system but in regard to what we are talking about now, the route that is being proposed is the best route forward. I cannot go any further in relation to that. I have made an offer in relation to the regulations, that they can be discussed and decided in the House, so nobody is buying a pig in a poke. If the law is passed, it cannot come into effect until the regulations are passed. People will have an opportunity to have their say and it will be a democratic vote of the House. I am not trying to pull the wool over anybody's eyes in relation to this matter. I cannot be any fairer than that and I believe I am being reasonable.
While I understand what the Minister is saying, I am not impressed by what he calls his offer on the regulations. There is a whole series of places in the Bill where it is proposed to make regulations by just laying them before the Houses and if they are not annulled within 21 sitting days, they stand. I know the Minister agrees with me that that is a very unsatisfactory way to make regulations, except where they are of a very routine kind. The regulations the Minister is talking about would not be of a routine kind. This is something on which I would have expected the Minster to propose a different form of regulation anyway, so I do not regard that as an offer that is in any way part of a conciliation. We will deal with that when we come to the amendment on the section in the Bill that covers regulations generally. The Minister is on the back foot because I know he agrees with me to a large extent. Before we come to that section, I may give him a list of the sections in the Bill where I would specifically propose that we make provision for the kind of regulation the Minister has in mind, but that is another day's work. I am not confused between the SAC and EIA directives. The people who are concerned about these provisions know that there are requirements in relation to SACs which are not implicated in the issue about which we are talking but which can affect them. I am not making an issue of it.
From what the Minister has said, I deduce that he has not been given specific advice to the effect that the formula which I proposed, total exemption and regulation for largescale producers, would be unacceptable in the light of the court judgment. The Minister should get specific advice and make it available to us on Report Stage. I will withdraw the amendments to ensure that possibility remains open. I will table them again on Report Stage and I would like to hear the specific advice then.
The Minister said that the regulations would introduce an acreage limit, as exists now. Is that the case? The Minister seems hesitant to talk about commercial producers on any scale. Will domestic producers be exempt? Will small commercial producers require planning permission? It appears large commercial producers will require an EIA and planning permission. We want to know about domestic and small producers who cut on a small scale. Does the Minister intend to introduce an acreage limit under the regulations? That would resolve the problem of defining a small commercial producer and a domestic producer. If he does intend to do that, why not extend the current regulations which involve an acreage limit and reduce the limit from 50 hectares?
Under the legislation a person will not get planning permission for a designated SAC bog. What happens when Dúchas has given permission to cut turf for the next ten years but the bogs are designated? If they come under the planning controls the local authorities will say that turf cannot be cut on them because they are designated. How can those two interpretations be balanced?
In future Bord na Móna will have to make a planning application if it wants to open a new bog. What happens in an existing bog where it is proposed to extend harvesting given that the original bog would not be covered by this Bill?
Once Bord na Móna moves into a bog it drains it. It does that well in advance of its operations to allow a certain amount of the moisture to run off. Bord na Móna is not operating in any bog where it would have to apply for planning permission because these are existing operations. The provisions of the Bill will not affect them directly.
I am reluctant to mention acreage. I want to keep an open mind about how to approach the regulations. As soon as the Bill is passed and we start to draft regulations, people will be looking for meetings with officials as part of a consultation process. It would be wrong to start talking now about precise numbers. There is another way to do it which does not involve acreage - the volume or tonnage of turf extracted. That may suit the people about whom the Deputy is talking.
It could be fun trying to weigh that. What happens in a wet year? The tonnage will be greater than in a dry year.
That is why I am not giving precise figures. Because we are talking about environmental impact assessments, what may be acceptable under the EIA in one area may not be in another because of specific designations.
I was asked why I would not reduce the 50 hectares to one or two hectares. That is what landed us in trouble with the EU. Because we had a blanket figure we were not doing what an EIA is supposed to do - take into account the environmental effect of a particular activity. That is why it is not as simple as reducing the number of hectares. By doing it the other way around we can legitimately claim that we are taking into account the environmental effect. The Bill states that where a person is of the opinion that by reason of its size, nature or limited effect in its surroundings, it would not be contrary to proper planning and development, the Minister may make regulations to provide for any class of development being an exempted development for the purposes of the Act. It is a surer way because we can legitimately claim in the EU that we take into account the environmental consequences of the actions in this area. That is why we are going this way.
On the question of people being allowed to cut turf in SACs, once an area is designated as an SAC, it will fall within the planning regulations. The obligation on the local authority at that stage is that when an application comes in it will have to consult Dúchas. If there is an agreement between Dúchas and local owners of the turbary rights or those who lease turbary rights in a particular area by which they are exempt or entitled to continue cutting turf for domestic purposes over a five or ten year period, the local authority must take that into account in making its decision and I am sure it would take it into account. It is unlikely that there will be refusals in that area once Dúchas has made an agreement and has advised the local authority. I have covered most of the points raised.
On Dúchas's interpretation of these designated bogs, could the local authority still ask a small producer to produce an EIS? For example, one of the counties involved is Roscommon where at present Dúchas has a planning application before it. The party involved is being asked to provide an EIS even though Dúchas is supposed to be in charge of protecting the environment. Does this not lead in the future to the interpretation that a local authority could ask a small producer to provide an EIS which would automatically mean that turf cutting will not occur because a small producer will not be able to come up with an EIS?
In life, anything is possible but it is highly unlikely for a smallscale producer. Having regard to what the Deputy said earlier about making obligations on people with developments of one hectare, for example, I would not like to introduce a rule or regulation which would mean that anybody with a development larger than one hectare would have to provide an EIS or EIA, which are expensive. It is difficult to answer a question like that when the Deputy has something specific in mind and I do not know the case in question, but I would be surprised if the local authorities were to start insisting on EISs unless there is a requirement in the directive for a particular reason and then they would be obliged to do so.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
On a procedural point, Chairman, will we suspend because there is a motion in the House which relates to this Bill and I am anxious to contribute to it?
Deputy Dukes took the liberty of excusing himself earlier to contribute to the debate on the motion to which the Deputy refers. I asked the Minister of State, Deputy Dan Wallace, to take it. Deputy Dukes requested the Deputy to trust Fine Gael for the duration rather than lose the half hour.
We have this room booked. I apologise, Deputy, but due to the scarcity of time we will be in session until 5 p.m. regardless of whether we like it.
I am anxious to contribute to the motion in the House. If any of the amendments in my name are reached in that period and not moved, may I have leave to introduce them on Report Stage?
Amendments Nos. 7 and 35 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 16, line 24, after "plaster" to insert "or the removal or alteration of doors, windows and roofing materials such as slates, tiles, timber, metal or concrete".
This relates to the definition of alteration which, according to the Bill, "includes any plastering or painting or removal of plaster or stucco which materially alters the external appearance of a structure . . . ", etc. I am anxious that the definition would be broadened to include alteration of doors, windows and roofing materials, which could equally alter the external appearance of a structure with considerable effect on the environment. This does not need a great deal of explanation. Clearly the alteration of a particular type of roof can have a significant effect on the external appearance of a structure. Similarly, the alteration of windows or doors can have a significant effect. If somebody removed a Georgian door from a Georgian building, for example, it would have a significant effect on the external appearance of that building. There is a considerable amount of window replacement being carried out at present. In many cases these windows were part and parcel of the appearance of a building and they are being replaced with pre-manufactured, double-glazed windows of different types, most of which are made of plastic, aluminium or synthetic material. These can often have a significant effect on the external appearance of a dwelling. Roofing materials, windows and doors should be taken into account in this definition.
The first of these amendments would extend the definition of alteration regarding all structures to expressly include the removal or alteration of doors, windows and roofing materials such as slates, tiles, timber, metal or concrete, and I want to explain the effect of such a change. Any alteration which renders the external appearance of a building inconsistent with its neighbour's is not exempt within the terms of section 4(1)(h), which covers the point the Deputy is making.
Section 2 defines alteration to include plastering or painting because it could be argued that this is not the type of activity which can be caught by planning permission and it does not fall within the definition of works in section 3, but of course section 4 is of general application. Section 4 includes changing doors and windows, which amounts to works, and planning permission may be needed where the change is so great that the appearance of the structure becomes incongruous with its neighbour's.
Perhaps the Deputy is trying to require people to seek planning permission even where, in a modern bungalow, people want to change their windows, whether there is an incongruity. Obviously that is much more problematic because there must be a limit to that for which we can require planning permission. I am sure the Deputy, like me, does not want us to be in a position where people must seek planning permission for relatively minor external alterations to their houses, where it does not have an effect on neighbouring houses etc.
Most Deputies would agree that despite everybody's best efforts, including those of the local authorities, local authorities have a huge amount of work in their planning departments. If I accept this amendment, I could foresee planning authorities being overwhelmed by a deluge of applications for minor works to people's houses. I assume that is not what the Deputy intended. The earlier answer regarding section 4(1)(h) is probably the purpose of the Deputy’s amendment.
The second amendment, amendment No. 35, would extend the definition of works in the case of protected structures only to include any act involving the application or removal of slates, windows, doors and roofs to the interior or exterior surfaces of the structure. This amendment is unnecessary because planning permission must be sought for any works which affect the character of a protected structure, including when this involves the removal or replacement of windows etc. which is a matter of particular concern to the Deputy. That is a general requirement and it means that if slates are removed or windows are replaced and the character of the structure is materially affected, planning permission is required. The intent behind both amendments put forward by the Deputy is met by the provisions of the relevant sections.
I have sympathy with the views expressed by Deputy Gilmore. I am aware of a case in my area where all the houses in a particular housing estate were originally painted white and in recent years a certain lunatic fringe has become involved in painting these houses a different colour.
Would the Deputy like to identify the estate so I can pass on his concerns to the relevant authority?
I live on the estate in question. It seems to be very difficult for the local authority to take action against people who paint the exterior walls of their houses with garish colours. Is the Minister confident that the Bill deals satisfactorily with the matter of the painting of exterior walls? It must be remembered that people are much more aware of their rights and conscious of their environment than they were at any stage in the past. Is the Minister in a position to confirm that the stipulation to which I refer is contained in the Bill?
I would adopt a different approach to this matter. In the recent past we have become too stereotypical in the way we design and decorate our houses. In my opinion, a dash of colour and some imagination is always welcome. If one drives through the suburbs of Dublin and Cork, one will see estates which are monotonous and boring. We are going too far here by ensuring that the facades of dwelling houses are extremely sterile. In my view the Planning and Development Bill advocates the introduction of too many stringent regulations in respect of dwelling houses and their basic exteriors.
Stipulating that planning permission will be required for changing widows etc. will not only tie up the planning process but will lead to the construction of sterile housing developments. As a result, houses will lack originality. A house belongs to the individuals who live in it and they should have a fundamental right to do, within reason, what they like with it.
It is not my intention that this amendment should mean that everyone wishing to change their windows would be obliged to apply for planning permission. That would be crazy. I am inclined to agree with Deputy Kelleher. It is not my intention to reinforce the awful monotony which has manifested itself in suburban housing estates as a result of the way the planning regulations have been enforced. However, I am intent on putting a stop to people altering their houses by making changes which are completely out of character or context. The amendment seeks to cover instances where, for example, a person living on a street of Georgian houses might decide to change the windows in their house or a person living on a housing estate where all the roofs were constructed using dark coloured slates might decide to replace those on their roof with red tiles.
The Minister stated that these matters are already covered, in one way or other, by the provisions in the Bill. Ultimately, however, it comes down to the exercise of judgment on the part of planning authorities as to whether planning permission is required. Based on what the Minister said, I am prepared to withdraw the amendment. However, it might be appropriate to introduce regulations to deal with this area at some point because there are cases where people are making changes to buildings which are clearly not appropriate and it does not appear that the existing rules are being enforced. There seems to be an air of ambiguity regarding whether planning permission is required to change or remove windows, doors, roofs etc. Perhaps the way to deal with this matter is by way of regulation rather than by amending the primary regulation. I will withdraw the amendment.
I have sympathy with the amendment, particularly as it relates to Georgian buildings. However, as the Minister stated, these structures and their exteriors and interiors are protected under the Heritage Act. Members commented on housing estates, streetscapes etc. I would be reluctant to go down the road of introducing too many controls because we cannot legislate or regulate for people's individual tastes. Nevertheless, we need to place some emphasis on protecting the appearance of urban landscapes. I agree with Deputy Gilmore that the best route to take here might be to introduce regulations at a later stage rather than include provisions to deal with this matter in the primary legislation.
I accept Deputies' concerns about this issue. In Dublin, however, many of the matters to which they refer are dealt with by Dublin Corporation. I refer not only to Georgian buildings but also estates which are perhaps only 60 or 70 years old and which have been designated as conservation areas. I accept there may be houses, roads or estates which have not been designated but estates in Dublin which were built in the 1920s or 1930s have been designated as conservation areas. I do not know what will happen if we introduce legislation which demands that people outline whether the windows they intend to put in contain sashes or the curtains they intend to put up include tassels. Members must realise that many of these matters can be dealt with by means of the development plan.
I reiterate that the principle behind Deputy Gilmore's amendment regarding protected structures, areas of architectural significance etc. is already contained in the Bill and the provisions covering it are adequate. Deputy Clune and I have tabled amendments in respect of streetscapes and the amendment in my name will give local authorities increased powers in terms of developing them.
Deputy Hayes referred to people painting their houses different colours. The villages of west Cork are a riot of colour——
If everyone wishes to paint their house a different colour, that is fine. However, if one house out of 1,300 is painted pink it will stand out.
Gurriers will soon be obliged to apply for planning permission for their graffiti if this keeps up.
The person to whom Deputy Hayes refers must be a Fianna Fáil voter.
He is a pinko, one of Mr.McCreevy's friends.
Amendment, by leave, withdrawn.
Amendments Nos. 8 and 9 are related and may be taken together by agreement.
I move amendment No. 8:
In page 16, line 26, to delete "so as to render" and substitute "or which renders".
Deputy Dukes believes this wording is technically superior to what is already there. An alteration could refer not only to the structure itself but also to neighbouring structures and Deputy Dukes believes that including the words "or both" and pluralising the word "render" would be more exacting. If the words "or both" are inserted, it follows that the definition should read "which renders" instead of "so as to render".
The amendments would change the definition of "alteration" so that it would have two meanings. It is always difficult when there are two different definitions. The definition at present includes "any plastering or painting or removal of plaster or stucco which materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or of the neighbouring structures". The amendment would provide that "alteration" would mean "..any plastering. . . . which materially alters the external appearance of a structure or which renders the appearance inconsistent with the character of the structure or of the neighbouring structures or both." Regardless of which of those tests is used in the definition of "alteration", the overriding test for the works that require planning permission is set out in section 4(1)(h).
This section provides that works or other alterations which do not materially affect the external appearance of the structure so as to render it inconsistent with the character of the structure or of the neighbouring structures do not require planning permission. Acceptance of the amendments would not change the law but there would be a danger of introducing inconsistencies between the two definitions which could cause confusion.
The point Deputy Dukes was making was that the alteration not only has an effect on the existing structure but also on the neighbouring structures.
If it is a protected structure, we care; if it is not, we do not.
I am sure Deputy Dukes would ramble on about this for a good deal longer if he were here but I am prepared to accept the Minister's word.
Amendment, by leave, withdrawn.
Amendments Nos. 9 to 11, inclusive, not moved.
Amendments Nos. 14, 17, 20, 30, 96, 233, 278, 279, 280, 628, 633, 639 and 641 are related to amendment No. 12 and all may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 12:
In page 17, between lines 5 and 6, to insert the following definition:
" 'dangerous substance' has the meaning assigned to it by the Major Accidents Directive;".
These amendments are necessary to give effect to the land use aspects of the EU directive on the control of major accident hazards involving dangerous substances, the Seveso 2 directive. The greater part of the directive will be given effect through European Community regulations currently being drafted by the Department of Enterprise, Trade and Employment. The directive relates primarily to ensuring that factories and premises which use hazardous substances comply with the necessary safety standards and the proper procedures to deal with emergencies are put in place.
However, Article 12 requires member states to ensure that the objectives of preventing major accidents or limiting the consequences of such accidents are taken into account in land use policies. These amendments give effect to Article 12. Their most important provision is to require in section 10 that planning authorities must have objectives in their development plans to limit the risk or consequences of major accidents. For example, this could relate to zoning objectives both for the siting of industries to which the directive applies and the siting of development, for instance, residential development, around those industries. Guidance will be given to planning authorities on how they should do this.
The directive also requires in Article 12.2 that planning authorities set up appropriate consultation procedures to enable them to assess any risk involved when considering proposed developments to which the development plan objective would apply. The amendments to sections 33, 34 and 159 allow for this and consultation will be carried out with the Health and Safety Authority. The HSA is not referred to in the Bill but will be prescribed under the regulations.
Consequential amendments are also being made to the definitions section and to the provisions for non-compensatory reasons for refusal of permission or attachment of planning conditions. They will cover the issue raised in Deputy Clune's amendment.
The thrust of the Minister's amendments recognise the directive and incorporate it in planning law. However, I am concerned that when the directive is implemented, approximately 200 locations will be covered under it. Will it be retrospective? What will be the position for an owner of property adjacent to a Seveso 2 site? Will that person be restricted in developing his land? Does all the land around a depot that is designated Seveso 2 next year become sterile? It is important that individuals are compensated if their land becomes worthless because it is adjacent to such a site?
Will the directive be implemented retrospectively given that individuals or local authorities may have purchased land with a view to developing it? They may now find that, because an industrial complex nearby is covered under the Seveso 2 directive, the land could be sterile and could not be used for anything other than agricultural production. There are many pharmaceutical developments near Cork city. Is it possible that lands within a certain radius of these plants could be declared sterile, thus stifling any further development of the city in certain directions?I would like the Minister to clarify that, if possible.
In relation to the legislation being retrospective, it cannot be retrospective. On the queries both Deputies raised, in general terms this is more likely to affect applications from existing facilities seeking planning permission to expand. It is more likely to have an effect on them than on the neighbours about whom the Deputy asked. The advice I have on this is that if, for instance, the lands around a particular area were not zoned, there might be a difficulty getting a zoning, other than perhaps a commercial or industrial zoning.
Who determines that?
That is why we are talking in terms of the Health and Safety Authority.
Will the Health and Safety Authority decide?
It will give the advice to the local authority in that regard. Obviously it will depend on the kind of substances and the type of activities carried on at a particular site as to the size of the zone around it.
The Minister is saying that there is a possibility, however remote, that if four pharmaceutical plants were placed around a city perimeter, in effect they could stop further development.
That would be very unlikely.
I am thinking of one area, Tivoli Docks in Cork - the Minister was there yesterday - where an LPG storage facility is located. That will affect all the surrounding domestic dwellings as well as those across the river in the Blackrock area, an area which has been zoned for an apartments development. If a decision is taken to expand the liquid petroleum gas facility, obviously that would have an effect on the surrounding areas. If the Bill is not made retrospective, anybody who has land for potential development will find that it is effectively sterilised. The Minister said it was not possible to make the legislation retrospective, and I accept the difficulty in that regard, but something has to be done about this issue. I understand that this LPG storage facility will come under the Seveso 2 major hazards directive. I have read what the Minister is proposing in his amendments but if I wanted to build a house within 50 yards of that facility, I could not do so because I would be contributing to the consequences of a hazard. This measure will affect the developer in the vicinity of the site.
I am being parochial in this issue. In Cork we have the LPG facility, the oil refinery, IFI, huge pharmaceutical-based industries and a major industrial complex on the southern ring of the city. If they all fall under this Seveso 2 directive, that will effectively hamper further residential development in the entire area. There is a huge oil refinery, IFI, pharmaceutical companies and gas storage plants in the area. I have no doubt that if the Health and Safety Authority is giving advice, it will do so on the understanding that any risk is a risk and will recommend that these facilities be located as far away as possible. Authorities would be loathe to zone land if the Health and Safety Authority has given advice to the contrary.
I understand that has already happened. The Health and Safety Authority has advised against——
Even if we do not pass the legislation we are still subject to the European Union directive.
I understand that.
Does the Minister agree that could have enormous repercussions for the development of the entire city?
Deputy Kelleher is overstating the case. This is designed to reduce the risk of the major——
The Seveso 2 directive is designed to reduce the risk, is it not?
Yes.
By not allowing planning in areas.
It also means that the risk is reduced by not allowing planning, as Deputy Kelleher said.
Or by allowing only certain types of planning.
Or by denying permission for dance halls or any building in which people gather.
I presume the Deputies are not suggesting that we should allow planning of residential areas right beside oil refineries if there is a danger.
I am suggesting there has to be some compensation for landowners in the area.
Absolutely.
What is the position in regard to a site that becomes a Seveso 2 site when the directive comes into play? The directive is not applied here yet but when it comes into play, how will landowners in the vicinity of these existing sites be compensated?
There are no provisions to allow for compensation because if land is not zoned, there is no automatic right to——
Some areas would be zoned already, particularly near some of the sites I mentioned.
That is a different scenario if the land is zoned. If land is not zoned, there is no automatic expectation in relation to planning. If land is zoned for a particular reason and a person is refused permission under planning laws, that person has a right to expect compensation.
I can think of a number of instances where people will be looking for compensation for the few sites that have been mentioned already.
If the land is zoned they are entitled to look for compensation. I will not say what the courts will do but generally they have been generous.
Not only am I concerned about landowners, I am concerned about development in general. To refer to Cork city again, is there any appeal mechanism in place? Let us be very clear about this matter. If a recommendation comes from the Health and Safety Authority, there is no doubt that a local authority will take that advice on board and will err on the side of caution. There are huge tracts of land in the Cork area that may not be zoned in the future because of the Seveso 2 directive. For example, there is nothing to stop the Health and Safety Authority recommending that, under the directive, there should be a certain radius from the plant in Little Island. It could be a mile or two miles——
It would have to base that on something. It has to do a risk assessment and decide what is and is not reasonable and so on.
That is exactly my point.
There is an area in my constituency for which I know nobody will get planning permission. It is near Newgrange and nobody will get planning permission to build a house around that area because it has been designated a world heritage site. There is nothing new in the concept. I am not minimising the effect of this measure but it would be slightly over the top to say that all development in Cork will stop because there are four different plants at four different points around the city. It will be done more scientifically than that.
Is there an appeal mechanism?
An Bord Pleanála is the appeal mechanism. This measure will have to be taken into account under the planning and development Acts. The HSA will be able to make their recommendations, risk assessment and so on. The local authority will have to have regard to that and if either the objectors or the proposers are not satisfied, they can then appeal to An Bord Pleanála. Obviously, An Bord Pleanála will have to take its own advice on the matter. An Bord Pleanála will obviously take into account the views of the HSA and whatever other views are put forward, but in matters like this An Bord Pleanála usually would take its own independent advice also. The other side of this coin is that if local authorities do not apply this and there is an accident, they are open to claims for compensation.
There is the Seveso 2 major hazards directive, but the HSA would be able to control some of the developments. For instance, instead of storing 100 bottles of LPG, they would only be able to store 30 in this vicinity. That type of control would come into effect under the directive.
Will they have the power to shut down plants?
They have at present. This will arise only in the case of trying to control it under the planning, if somebody applies for planning permission. However, the HSA would have such power.
There is also the greater good. For example, a plant might be in existence but because of its risk potential it is sterilising a great deal of land under this directive. One could argue that it would be better for the plant not to be there and for the land to be developed.
That would be a matter to be discussed by the local authorities.
Where stands existing development then? Is it just something with which one must live?
If there is an unacceptable risk, I am sure the HSA would investigate it and it would have powers.
What if there were future planning applications?
If there was an extension, it would all come into play.
Would that also mean a person could not extend his or her house in the area? Is that a reason for compensation? If one is reducing the potential it should be, should it not?
One cannot have a reasonable explanation of planning for extension to a house and so on and, therefore, I would say that is not the case.
If I could not extend my house, I would say that my rights were infringed.
The reasons for compensation have been scaled down over the years with good reason and we see one of them in the tribunals over the past couple of days.
I wish to withdraw amendmentNo. 639, which is in my name.
Amendment agreed to.
The committee adjourned at 5.03 p.m. until Wednesday, 12 April 2000.