We will resume our consideration of the Planning and Development Bill, 1999. I welcome the Minister for the Environment and Local Government, Deputy Dempsey, and the officials from the planning section of the Department, Fergal O'Quigley and Úna Buckley. I am reminded that we will resume our consideration of the Bill on Wednesday 10 May, from 2 o'clock until 8 o'clock and on Thursday 11 May from 2 o'clock until 5 o'clock. I hope we will have finished by then.
Planning and Development Bill, 1999 [Seanad]: Committee Stage (Resumed).
Acting Chairman
Debate resumed on Section 21.
I move amendment No. 189:
In page 41, between lines 5 and 6, to insert the following subsection:
"(5) Notwithstanding any other provisions on this Act, regional planning guidelines for the Gaeltacht shall be made by Údarás na Gaeltachta in conjunction with the appropriate regional authorities and after consultation with the planning authorities concerned.".
Amendment put and declared lost.
I move amendment No. 190:
In page 41, subsection (5), line 7, after "matters" to insert "following consultation with the appropriate regional authority".
In the context of the establishment of regional planning guidelines, this amendment proposes that the words "following consultation with the appropriate regional authority" be inserted.
This is already catered for. Subsection 21(5) gives the Minister power to make regulations concerning the making of regional planning guidelines on related matters. These guidelines will be very general in nature and similar to those which relate to the development plans in the 1994 regulations. Within those regulations provisions are made for consultation with public bodies and so on, and these regulations will be similar.
They will apply on a general basis and not to individual regional authorities. It would not be appropriate to make the regulations subject to consultations with individual regional authorities. They will be dealt with in the same way as the 1994 planning and development regulations which refer to consultation with public bodies. The object of the amendment is already catered for within the regulations themselves.
The existing regulations state that consultation should be with public bodies. Does the Minister not see a need to state explicitly that the consultation should exist with the appropriate regional authorities, given the new dynamic which is being established to give these authorities a foothold in law.
I agree with the Deputy but that can be done within the regulations themselves. It is intended that it will be done within the regulations because regional authorities will come within the term "public bodies". The Deputy's point is fully catered for in the regulations. It is a good idea that they should be consulted, obviously.
Amendment, by leave, withdrawn.
Section 21 agreed to.
SECTION 22.
Amendment No. 191 not moved.
I move amendment No. 192:
In page 41, subsection (1), line 9, to delete "section 21” and substitute “section 24”.
Amendment agreed to.
Amendment No. 193 not moved.
I move amendment No. 194:
In page 41, subsection (2), between lines 33 and 34, to insert the following:
"(d) All reasonable requests for assistance under paragraphs (b) and (c) shall have due regard to the problems of social and economic deprivation in each planning authority.”.
This section deals with the co-operation of planning authorities with regional authorities. This amendment would require that due weight and recognition be given to authorities which suffer particular social and economic deprivation. The Minister knows of the five nationally designated areas of social and economic disadvantage. Two of the five areas, west Tallaght and north Clondalkin, are in the South Dublin County Council area. Due appreciation is not given in the section to the needs of these areas. For instance, the problems of social and economic disadvantage are not as great in some local authorities as in others. Some kind of recognition must be given, within the section, to the areas where these problems are greatest. I do not suggest that weighting be given to these areas but there should be recognition of their problems within the section.
I appreciate the point the Deputy is making but we are talking about local authorities, which are the constituent bodies of the regional authorities, coming together to talk about a regional strategy for water, sewerage, roads and so on, or even regional planning guidelines. Where there is not agreement on the sharing out of the costs among the constituent planning authorities, subsection 2(c) provides that the regional authority shall allocate the cost among the authorities themselves, on the basis of population. The number of times that is likely to happen is infinitesimal.
I am reluctant to accept this amendment because the intention of the section is merely to allocate costs in a fair way among the constituent authorities. Good sense usually prevails and various factors are taken into account. If we stipulate that social deprivation should be taken into account and operate a formula, other local authorities might argue that they should be charged less because of their land area and population densities. The section proposes that the cost be divided among the local authorities by agreement and if agreement cannot be reached, the regional authority make the division, taking into account the factors mentioned by the Deputy. If we stipulate what may and may not be taken into account, formulae will be drawn up and there will be endless rows about the allocation of costs. I prefer to leave the flexibility to the local authorities and, in the event of dispute, that regional authority should make a final decision. This is a more flexible and better way to approach the matter.
I understand the Minister's reasoning. However, simply looking at the issue of population is not a sufficient form of calculation in terms of the reasonable cost that would accrue to a number of local authorities. Population figures show only one part of the picture. Many local authorities have particular problems. In large sections of the their functional areas, the problems I have referred to in the amendment are exclusive to the particular local authority. Throughout the local authority system we do not have a systematic approach which can weight those local authorities against others. While I understand that the Minister does not wish to be too prescriptive, there is a need to go beyond the simple population data in determining these costs. I ask the Minister to consider that when establishing regulations.
The likely cost of studies or strategies which might be undertaken would be very small in relation to an overall local authority budget. We will endeavour to ensure local authorities treat each other fairly. Population is one yardstick. It is when one starts to look at other matters however that one realises the problems. Due to the strong industrial and commercial base one could have a very high rateable valuation in a particular local authority area in which there are pockets of severe social deprivation. While potential income, potential expenditure and levels of development could be used as criteria, it is considered - the system has worked reasonably well up until now - that it is more simple and straightforward to base it on proportion of population given that the expenditure involved is relatively minor. I do not think provision has been made for making regulations. What we are saying to the local authorities is that if they cannot work it out between themselves and there is a problem, the regional authorities will deal with the matter.
Amendment, by leave, withdrawn.
Section 22, as amended, agreed to.
SECTION 23.
I move amendment No. 195:
In page 41, subsection (1)(b), line 41 after “years” to insert “and not more than 15”.
Section 23, as it stands, provides for the making of regional planning guidelines for a period of not less than 12 years. The amendment seeks to provide for a maximum period of 15 years, which would cover the lives of three development plans and ensure the guidelines would be renewed at the end of the period.
While I see what the Deputy is getting at, I would not like to see the Bill being too prescriptive. In certain areas there may be a need for a horizon greater than 15 years. I would not like regional authorities to think that they could only draw up regional planning guidelines for a 15 year period. The Deputy is trying to ensure guidelines will not be drawn up and left sitting on the shelf ad infinitum. On balance, however, I would prefer to leave it to the discretion of regional authorities. The Deputy is afraid that if we leave it to the discretion of regional authorities they may not produce guidelines for 20 or 25 years.
While the section provides for the making of guidelines for a period of not less than 12 years, thus providing for a long-term vision for the region concerned, this does not necessarily mean that they will remain in force for the period in question. I genuinely have an open mind on the matter. I do not want to tie it down too much one or way or the other but the Deputy may try to convince me otherwise. Is he concerned that if that a maximum period of 15 years is not provided for regional planning guidelines will be left on the shelf ad infinitum or does he have something else in mind?
I am trying to ensure regional planning guidelines are renewed, although there is a case to be made for regulations with a horizon longer than 15 years. I am trying to avoid a position where regional authorities will draw up guidelines which will go out of date. For example, the assumptions made in the mid-1980s about economic and population growth are now seriously out of date but nobody anticipated at the time that they would be. From where we are now it would be difficult to anticipate the planning requirements a decade and a half from now. For example, most people are assuming that an additional 500,000 dwellings will be required in the next ten to 12 years. The planning implications arising from this are significant. I understand that the object is to require regional authorities to take a long-term view. The difficulty is that if regional planning guidelines are not renewed regularly they will go out of date. Regional authorities should, therefore, be required to review them periodically. That would meet the objective. If that were done I would not insist on the inclusion of a maximum period.
What the Deputy has in mind may be met by sections 26 and 27. Section 26 reads:
Where a regional authority has made regional planning guidelines, it shall, from time to time, as circumstances require, or at the direction of the Minister, review those guidelines and make new guidelines . . . Where new guidelines are made under subsection (1) they shall supersede any previous regional planning guidelines for the relevant area.
Section 27(5) reads, "For the purposes of this section, a planning authority, may have, but shall not be obliged to have, regard to any regional planning guidelines after 6 years from the making of such guidelines." What this means is that a local authority will not necessarily have to follow regional planning guidelines which are not being kept up to date by a regional authority.
I am concerned about the words "not more than 15 years." Notwithstanding sections 26 and 27, would the Deputy consider increasing this to 20 years to allow the necessary flexibility?
I will agree to that.
I hesitate to intervene because Deputy Gilmore is following a particular line. How does the Minister see county development plans meshing with regional planning guidelines? There is a certain logic in providing for a figure of 12 years which will cover the lives of two development plans. On the whole it would be reasonable to say to regional authorities that they should look further into the future than the framework of one development plan.
As the Minister has pointed out, there is no specific provision, up to and including section 27, putting a date on the review of regional planning guidelines. Section 27(5) says that if they feel so disposed, after a period of six years the county council can ignore any regional planning guidelines if they have not been updated. They are all rated as very loose. If we were to assume, for example, that this Bill came into force at the beginning of 2001 how would the Minister see the process after that? Clearly, not all counties will begin immediately the process of drawing up a new development plan. Not all the regional authorities will commence at the same time on drawing up their regional guidelines. Therefore, there will be a patchwork of stages in different parts of the country.
I am also conscious of the fact - I may be wrong about this and, if so, the Minister can correct me - that for certain of the counties around Dublin there is a development strategy for the greater Dublin area that was published during the year, parts of which I very much dislike. Would we be in a position of having to regard that as regional planning guidelines for the counties that are affected and, if so, are those likely to be reviewed?
I see a logic, in a sense, in prescribing a framework of 12 years as being the planning horizon for these regional guidelines but that should not prevent any regional authority within that period of 12 years from reviewing it. I would certainly think - and I take Deputy Gilmore's point - that if ten years ago we had been looking at regional planning guidelines for any area we might, with all the wisdom that was available then, have come to certain conclusions. Looking at them now we would have substantially different ideas about certain parts of it. Unless the Minister has a feeling that regional guidelines will not be reviewed again for quite a long time, it seems that what we have is a rolling process with very specific review dates for the county development plans but no corresponding review dates for the regional planning guidelines. Will the Minister illustrate how he sees those two processes moving together?
The Deputy's reference to a rolling process is precisely the terms in which we are speaking. The strategic planning guidelines for the greater Dublin area can be taken to be regional planning guidelines. Generally, the local authorities in the greater Dublin area are in the process of completing or have recently completed development plans. For example, Meath County Council is currently reviewing its development plan. In doing so and putting its draft on display the council had to take into account the strategic planning guidelines which said that Navan is a development centre in the same way as the Naas, Newbridge, Kilcullen triumvirate to which the Deputy has referred. Meath County Council, which is putting its development plan on display, has to have regard to the regional planning guidelines.
Fingal County Council may have had its development plan process complete at the time the strategic planning guidelines were formalised, although it was aware of what was happening. It will now have to review its development plan. The same might apply to Kildare. It will have to review its development plans to take into account the strategic planning guidelines for the greater Dublin area. I see that as the general process throughout the country.
We cannot halt the whole process and say, "This is the way to proceed." As the Deputy pointed out at an earlier Stage the national spatial strategy is now being prepared. We cannot halt all of this development, development plans and so on, to put the national spatial strategy in place and then put the regional planning guidelines in place which must have regard to the spatial strategy. As illustrated in relation to the greater Dublin area if the plans are in place they will have to be reviewed. If they are not in place they will have to take into account the regional planning guidelines.
The Deputy asked about the strategic planning guidelines for Dublin. They have already been reviewed in the context of the latest statistics from the demography of the greater Dublin area. The mid-level figures for an increase in population in the greater Dublin area used in the strategic planning guidelines less than 12 years ago are considered too conservative and too low. They have to be revised and development plans will have to change.
In relation to allowing the greatest flexibility possible for the regional plans and the regional planning guidelines to be put in place, it is being provided for in law that regional planning guidelines will be prepared by each of the regions and that they should have a time span of about 12 years. We are providing for a review of those guidelines on a voluntary basis as necessary but also on a mandatory basis, if required, under direction of the Minister if circumstances have changed. Deputy Gilmore suggested the time horizon should be 12 years which, as Deputy Dukes pointed out is the lives of two development plans, and putting a maximum time horizon on that of 15 years. I accept the Deputy's point about patchwork, that it cannot be all neatly slotted in. During the immediate six year period, given that the national spatial strategy, all the regional plans and the development plans will be in place, that patchwork will be eliminated.
I understand what the Minister is saying. My only concern is that nowhere in the complex of sections that deal with this matter is there anything constraining on the regional authorities to say they should do something at a particular point. They may or they may be directed by the Minister to review the plans. For that reason I have a lot of sympathy with Deputy Gilmore's proposal. Listening to the Minister describe the process it seems to have much in common with the thinking of the late Chairman Mao in the 1960s - the permanent revolution or lotta continua as the Red Brigades used to have it. It occurred to me that one way of describing walking is to say that it is a position of permanent disequilibrium. My only concern is that there is nothing that prescribes anything, even ideally, about when the regional authorities should look again at these matters. Even though they are told their horizon should be not less than 12 years, that does not mean that in 11, 13 or 15 years, as Deputy Gilmore suggested, they have to shake it up and dust it down, so to speak, and go into a new phase of permanent revolution. It might help if the wording was more prescriptive than merely providing for the possibility that the Minister could direct them to do that.
The Minister has the power to direct the regional authorities in this regard. If, in a national context, the Minister considers it is necessary, he can direct them to——
We all know Ministers are well meaning and busy, but we should not be obliged to do such things.
The other side is that we talk about local democracy and local devolution of powers and we must leave some discretion to the regional authorities and local authorities.
A provision of between 12 years and 20 years will give them plenty of discretion.
That is only the time horizon. Section 27(5) provides that if a regional authority does not review its development plan, the regional planning guidelines need not be considered by the local authority. That puts a fair onus on a regional authority to make sure its regional planning guidelines are kept up to date and reviewed.
Is that what the Bill states? Section 23 states that the regional guidelines shall be prepared for a period of not less than 12 years. In a region there are several local authorities which, some time before or after the adoption of regional planning guidelines with a 12 year horizon, could adopt a development plan with a six year horizon. If a local authority made its development plan a year after the regional planning guidelines came into force with a 12 year horizon, it would adopt a development plan with a six year horizon. It would come to the end of that development plan, which would be only half way through the normal horizon of the regional planning guidelines. It could decide, for reasons that have nothing to do with how up to date the regional planning guidelines are and because they would apply for less than another six years, to ignore them. It would not be constrained to have regard to such guidelines after six years following the making of them.
The problem is that we are trying to deal with renewing the guidelines in an indirect way. This amendment deals with the minimum and maximum period for which the guidelines will be in place. The section provides that they will be prepared for a minimum of 12 years. I suggested a maximum of 15 years. The Minister proposes to amend that to a maximum of 20 years, which is a broad hint to regional authorities that they should periodically review the guidelines or that they will have to do so.
The Minister drew attention to the provision that local authorities will have to have regard only to the guidelines for six years after the making of such guidelines. Section 26 provides that periodically regional authorities can review the guidelines or can be required to review them at the direction of the Minister.
We might be able to resolve this problem if Minister is agreeable. I tabled an amendment to section 26 to exclude the ministerial direction provision and to leave the renewing of the guidelines exclusively to the discretion of the regional authorities. It would resolve the problem if section 26 included a provision to require regional authorities to review their guidelines at six yearly intervals or thereabouts. That would mean, and I agree with Deputy Dukes on this, there would be a statutory obligation on the regional authorities to periodically review the guidelines. There would be no ambiguity about their review. If there was nothing much to review, it would be a fairly straightforward job. The current position is imprecise and the wording of the section is loose. It states that regional authorities may review the guidelines from time to time.
Regional authorities are composed of the nominees of the local authorities. A large local authority in a region, which plans to review its development plan reasonably soon and does not want the neighbouring counties to have anything to do with its internal business, could obstruct the attempts by a regional authority to review the regional plan to such a degree that the six year period would have expired by which stage the local authority would not have to take it into account. That may be a rather extreme example. A six year period might be the reasonable time within which to review such guidelines and that is provided for in section 27 and a period of six years is the proposed interval for development plans. I think that might resolve the difficulty in this regard.
The Deputies have convinced me that wording is loose and could be exploited. Deputy Gilmore gave one example and I can think of one or two others where it could be exploited unless some provision is made for a regular review of the guidelines. We could remedy the position in section 26 by specifying a period by which they would be required to be reviewed. It would probably be better to make this amendment on Report Stage as it may have consequences. The wording of such an amendment would be "In page 44, line 10, after 'shall' to insert 'at least every five years or from time to time as circumstances require' ". The current wording arose as a result of a Seanad amendment which sought to give regional authorities maximum flexibility to do their own business rather than to be under the direction of the Minister.
They are very democratic.
In light of that, perhaps Deputy Gilmore will agree to an amendment to his amendment to provide for guidelines to be prepared for a period of not less than 12 years and not more than 20. That would allow for four reviews over the timespan involved.
I will agree to that.
I move the following substitute amendment to amendment No. 195:
In page 41, subsection (1)(b), line 41, after “years” to insert “and not more than 20”.
Amendment to amendment agreed to.
Amendment No. 195, by leave, withdrawn.
Amendments Nos. 196 and 197 not moved.
I move amendment No. 198:
In page 42, subsection (2)(i), line 6, after “environment” to insert “and its amenities”.
This is a tightening up exercise. One of the objectives of the regional planning guidelines is the preservation and protection of the environment. That includes the archaeological, architectural and natural heritage. The amendment seeks to add "and its amenities" after the word "environment".
I am concerned that we do not unwittingly leave a loophole in this provision. Amenities relates primarily to the public usage or enjoyment of the environment. I can give an example of how one could protect the environment without necessarily protecting the amenities. There might be some provisions in planning guidelines relating, for example, to the protection of the environment of a river or lake but which might not refer to the enjoyment of the amenities of that river or lake, such as the fishing rights. There was reference to a practical example of this earlier on Committee Stage. Fencing off access to waterways would have a significant effect on the amenities of that environment.
The same issue arises in relation to rights of way. One can protect an environment which would include a right of way but the amenity enjoyment of it might relate more to the existence of the right of way. I appreciate that this is a fine distinction but there is an issue relating to the amenity of the environment which is not necessarily the same as the protection of the environment. I am anxious to make this addition to the provision in the guidelines.
I have no argument with the Deputy's amendment although I am advised that in the interest of clarity it would be better to leave the wording as it stands. We are talking about regional planning guidelines, not local development plans which can be more specific. This provision relates to the general protection of the environment which would be taken to include its amenities. However, I will accept the amendment. It does not make a huge difference but I hope it will not make the provision less clear when the lawyers get it.
If that happens, I will hang my head in shame.
There will be plenty of us to remind the Deputy.
Amendment agreed to.
Amendments Nos. 199 and 200 not moved.
Section 23, as amended, agreed to.
SECTION 24.
Amendments Nos. 201 to 204, inclusive, not moved.
Acting Chairman
Amendment No. 208 is related to amendment No. 205. Amendments Nos. 205 and 208 may be discussed together. Is that agreed? Agreed.
I commend the Chairman on his high level of productivity this morning.
I move amendment No. 205:
In page 43, subsection (2)(c), line 2, to delete “8” and substitute “12”.
The amendment seeks to increase from eight to 12 weeks the proposed period when submissions can be made to the regional planning authority in connection with the proposed guidelines. The eight week time frame might be a little short for all the authorities, the board and other bodies in the region to make their views known. I wish it could be done in eight weeks but I am not sure it is feasible, given the bureaucracy in place at present.
Subsection (2) refers to the board, prescribed authorities and other town commissioners. However, that would not prevent any person or body within the regional authority area making submissions on the planning guidelines the board will produce. Why did the Minister opt for eight weeks? Twelve weeks is probably a more useful time frame.
My amendment is similar although it relates to a different provision on making regional planning guidelines. It seeks to amend the period of time for which the draft regional planning guidelines would be on public display. The Bill proposes that they be on display for six weeks, within which time members of the public can make submissions. I propose that the six weeks be extended to twelve weeks, the period during which draft development plans are on public display. It is the time period with which the public is already familiar. Six weeks is probably too short.
The regional planning guidelines will be important and might attract a considerable amount of public comment since they are likely to relate to transport and larger concepts of development than the county development plan. They will relate, presumably, to the potential growth of towns and other areas within the region. The guidelines should be on public display for 12 weeks. It is the accepted time frame for the public display of county development plans. There is a case of having such set time frames. It would simplify the process and the understanding of the process.
The process of making and advertising the draft regional guidelines is somewhat analogous to the advertising of a draft development plan. There is much merit in people being aware that the period of time is 12 weeks. It is similar to the argument we had about the month period for submission of an appeal. People have it fixed in their heads; they know they must have an appeal lodged within a month. They also know that if the draft plan is put on public display the period for submissions is 12 weeks. We should keep the time frames simple like that.
In any event, it will probably be necessary to allow a longer period than the six weeks provided for in the Bill.
The time scales are minimum time scales. I am beginning to think I am the only member of the committee who believes in giving local or regional authorities any discretion. They are minimum periods. A regional authority could decide to put them on display for six months if it wished.
In deference to the Deputies' comments and to the fact that we have already discussed the time frames for the development plan and decided to adjust them on Report Stage, we will try to align all the provisions so there will be similar time frames.
It is important to emphasise that these are minimum timescales. The minimum period for the regional planning guidelines would be similar to the public display period for the development plan, which we propose should be ten weeks following our discussion. If the Deputy withdraws his amendment, I will table suitable amendments on Report Stage.
I commend the Minister on his ambition to be the most devolutionary person here and the one most attached to subsidiarity. When we set a minimum or a maximum period, the minimum becomes the maximum or the maximum becomes the minimum if it is to the advantage of the people implementing it. If we set a minimum period for an authority to make something possible to the public, that will become the maximum period. If we set a maximum price, that becomes the minimum.
That is local democracy.
It means flexibility does not exist.
It sounds like the Deputy is suggesting democratic centralism.
I would not suggest that; I would leave it to other people to do so. It is human nature that if a minimum is fixed it becomes the maximum and if a maximum is fixed it becomes the minimum.
Amendment, by leave, withdrawn.
Amendments Nos. 206 to 208, inclusive, not moved.
I move amendment No. 209:
In page 43, subsection (5)(b), line 18, before “submissions” to insert “written”.
Amendment agreed to.
Amendments Nos. 210 and 211 not moved.
I move amendment No. 212:
In page 43, subsection (7)(a), line 28, after “in” where it secondly occurs, to insert “the functional area of each planning authority in”.
Amendment agreed to.
Section 24, as amended, agreed to.
Amendment No. 213 to 216, inclusive, not moved.
Sections 25 and 26 agreed to.
SECTION 27.
I move amendment No. 217:
In page 44, lines 22 to 27, to delete subsection (2).
Under subsection (2) the "Minister may, by order, determine that planning authorities shall comply with any regional planning guidelines in force for their area, or any part thereof, when preparing and making a development plan, or may require in accordance with section 31 that an existing development plan comply with any regional planning guidelines in force for the area”. This puts the devolution and subsidiarity issue to the test. The Minister spoke about leaving maximum discretion with the regional and local authorities. In this case the Minister is giving to himself the power to direct a local authority to include in its development plan any “regional planning guidelines in force for their area, or any part thereof”.
This is an extraordinary provision. The making of the development plan is a democratic process which involves public display. Local authorities have an obligation in preparing their development plans to take into account Government policies, views expressed by the Minister on planning matters or guidelines he may make. They are already required to have regard to the regional planning guidelines for a particular area. At the end of the process of public consultation and when local authorities have considered the development plan at three separate stages, it is sent to the Minister for approval. Despite that, the Minister seems to want to give to himself the power to tell a planning authority what it should write into its development plan. The Minister can give a specific direction to a planning authority under this section to include in its development plan chapter X or paragraph Y of regional planning guidelines. It is a dictatorial power and one which should not be in the Bill.
There are already in the legislation significant linkages between what the local authority may do and Government policy, regional planning guidelines and regulations made by the Minister from time to time. It is not necessary or desirable that the Minister should be in a position to order a local authority to include either a regional planning guideline in its totality or particular sections of it when preparing a development plan.
The Deputy is aware that the Minister has the power to direct local authorities in relation to their development plans. However, there is no context in which the Minister can do so at present. This subsection allows the Minister to direct them to accept something to which they have been party as a constituent body of the regional authority. I do not see this power being used often, if at all, provided local authorities comply with their wishes and make a collective decision as members of a regional authority.
The Minister for the Environment and Local Government must at all times be in a position to ensure that local authorities act in the national interest. A local authority should not be allowed to decide that it will not comply with a carefully balanced regional strategy that has been agreed by the constituent bodies of that region. Meath County Council could state, for example, although this would not happen, that in the context of the current strategic planning guidelines it did not want the overspill from Dublin or anyone building houses in County Meath and that it would not take responsibility for the extra population in Dublin. It could then decide not to make provision for extra houses in the designated development centre of Navan or for increases, other than natural ones, in population. It would be ludicrous if the Minister could not direct it to comply with the regional policy guidelines which have already been agreed.
I do not regard it as a dictatorial power. It could be deemed to be a dictatorial power as it currently operates under the 1963 Act because the Minister could on no basis just decide to direct a local authority, at least in the context about which we are talking. The Minister will have a context, such as the national spatial strategy or the regional planning guidelines. I cannot envisage in a democracy how a Minister elected by the people and nominated by the Taoiseach could not issue a directive in the national interest. That would be ludicrous and on that basis I ask the Deputy to withdraw the amendment.
I am not inclined to withdraw it as I am even more convinced of its wisdom following the Minister's contribution. Let us refer back to the example of County Meath because it is an interesting scenario. All of us may share the view that Dublin's growth is such that there will be a spill over into County Meath; there is already. Is the Minister saying that, at the end of the day. it does not matter what the people of County Meath think or their elected council concludes in regard to development and the zoning of land for development or the growth of towns and Dublin's suburbs because if the Minister considers it is in the national interest or in the interest of the growth of Dublin that County Meath should be developed, then that direction should be given?
That seems to turn on its head the fundamental democratic basis for county development plans and the right of people in any local authority area to influence and adopt their own development plan. It seems that the adoption of the development plan is conditional on it fitting in with some other grand plan, irrespective of what local people think. This leads to a direct conflict between the wishes of communities which want to express and vindicate their rights through their county development plan and some grander scheme in which local communities are seen as expendable small fry that can be pushed aside by ministerial directive. I do not agree with that.
A process is provided for in this legislation which is more refined than that in the 1963 Act. It provides for layers of planning which are interlinked. The development plan at the end of the day is the one over which citizens have most control. Arguably, it is the only part of the planning process in which the individual citizen has a real, effective say and can have it vindicated through their elected public representatives. It is not acceptable that that element of the planning process can be satisfied by ministerial directive. This needs to be reconsidered. The strength of the planning fabric which we are stitching together in this legislation is the involvement of the public through development plans.
The Minister is saying in one go that people living in a village in Counties Meath, Kildare or Wicklow or on the perimeter of Galway or Cork or any other major city must give way if the grander scheme requires it. That is trampling on people's rights and it must be reconsidered. I am more convinced now than ever of the validity and importance of my amendment.
Approximately eight or ten years ago an irate individual attended a clinic of mine. He asked why he could not obtain planning permission from Meath County Council. He had bought 12 acres of land in the heart of the county on which he intended to build his own house. He was annoyed that the local authority would consider refusing him planning permission because he was one of these people who worked extremely hard, wanted to provide a home forhimself and his family and felt that the local authority was treating him unfairly. He did not agree with the concept of no single, once-off houses in rural areas and felt that anybody who had land should be entitled to build their own house wherever they wanted. He had other arguments which were eventually accepted by the local authority.
Approximately six months after he had started building the house he returned to my clinic. He was irate again because somebody had been granted planning permission to build on the site beside his. He did not recognise any illogicality about this. He asked why the county council was allowing the countryside to be despoiled by single, once off houses in rural areas. If the NIMBY criterion is used in regard to proper planning and development, nothing will be done. We may as well bring ships into our ports, not as flotels which have been advocated for refugees, but to start shipping people out of Ireland, which will bring us back to the situation that prevailed for many years.
We are talking about proper planning and development and catering for the current population and the projected population over the next 15 or 20 years. We cannot cater for it by allowing every individual and group in society to object to building houses here and zoning land there. It must be put in context. The Government will develop a national spatial strategy over the next two years. The next layer in the planning system will be regional planning guidelines which will try to cater for what will happen in Ireland over the next ten or 15 years. The layer beneath that will be local authority development plans and then there will be local area plans.
With the three top layers the current housing scenario will be included in a strategic planning framework and the local authority development and local area plans will allow people to make their views known about various aspects of them. This section does not refer to setting aside Ireland's planning structures by ministerial directive. Where a democratic decision has been made in regard to a development plan or even regional planning guidelines because they will be decided by the regional authorities, local authorities should comply.
The Deputy is being inconsistent. In section 21, which we discussed last week, the Deputy asked me to make mandatory all of these guidelines which would mean that nobody would have any discretion. Now he is arguing that everybody, every small group and every individual, should have a veto on them. If we are to properly plan the development of this country, there must be a spatial strategy, regional development, regional planning guidelines, the development plan, which is and will be a cornerstone of proper planning and development, and then the local area plans, but one cannot have a situation where a local authority will be in a position of saying "We have the regional planning guidelines but they do not suit us. We will not have anything to do with them. We will go off in our own way.". To do that, would be to make a laugh of ourselves. I ask the Deputy to withdraw the amendment because it would not make sense to be unable to impose in the national interest what will be agreed at a regional level by the regional authorities.
When I hear those words "in the national interest", they bring to mind a certain television programme. They have a different resonance from the one they used to have. I am a little puzzled by this argument perhaps because both the Minister and Deputy Gilmore are using colourful language to express things which are a good bit more grey than they are suggesting. A while ago Deputy Gilmore was worried about regional planning guidelines withering on the vine and being ignored by local authorities after six years. Now he is worrying that they will be sought after too much by the local authorities.
The provision in the Bill is quite a reasonable one. It is one of the few cases where in a provision of this kind, relating to the Minister, the word "may" rather than "shall" is entirely appropriate. There is not much point in going through the process of building up regional planning guidelines if we then state that anybody can opt out if they do not like particular parts of them. In practice, I imagine the situation will not be one of constant interference between regional planning guidelines and county plans. I imagine there will be cases where, in the drawing up of regional planning guidelines, there will be three or four difficult issues to be dealt with in waste management, for example, in some aspects of transport planning, perhaps in water supply or in the provision of sanitary services. I could see issues in the adoption of regional planning guidelines where there would be scope for difficult arguments between local authorities and the regional authorities, but it seems to me that most of the things which regional authorities will be setting up are not the kinds of things which will lead to large scale disturbance in local communities in the operation of the guidelines. If there are cases like that, and there will be, they will presumably have been argued out at the stage of the adoption of the regional planning guidelines.
Consistency is the word which we should use here. Throughout the debate on this Bill, I have argued strongly that each of the layers of planning, including the adoption of the national spatial plan, should be done in a democratic way by democratically elected representatives following periods of public consultation and involvement. If each of the layers of the planning process are considered and adopted in a democratic way, then they have authority which should carry them through and enable them to interact with the other layers of it.
What I am opposed to is planning by order, which is what we will get under this provision. Deputy Dukes mentioned, for example, the case of waste management. There are currently a number of examples where regional authorities have adopted waste management strategies, which include, for example, the location of a waste incinerator or large landfill sites, and the individual local authorities in some of the cases have rejected the proposed incinerator or landfill site.
It is as well that we all recognise that the provision in the Bill means that the Minister for the Environment and Local Government can give a direction. If it is in the regional planning guidelines, he or she can give a specific direction to the local authority to go ahead irrespective of the wishes of that local authority and irrespective of whether it is included in a local authority development plan. That will not give rise to good planning. Issuing diktats or orders will not deal with the NIMBY problem. The NIMBY problem must be address. It is capable of being addressed and much more effectively dealt with by way of reasoned argument, consultation and involvement of the public than by giving an order. A provision in legislation which states that it does not matter what one thinks because at the end of the day the Minister can sign an order and it will happen, is not conducive to good consultation. It does not bring people to an understanding of either the requirement for the development and it certainly does not bring them to a point where they will be willing to participate and accept the process. It encourages a greater degree of truculence, difficulty and obstructionism at local level. One is much more likely to get grandstanding at local authority level on difficult developmental issues in a situation where a local authority, for example, knows that it can grandstand, that is, fight the good fight for County Meath, County Kildare or wherever, knowing that the hard decision will be made by the Minister issuing a directive to implement the regional planning guideline. This is not the way to deal with the kind of problems which have been described.
The process, the way in which the local area plans, development plans, regional planning guidelines and, ultimately, the national spatial plan will inter-link, is well set out in the legislation. We would be better to have confidence in that working and in the participants in that process making it work than to have this kind of fail-safe provision that if it does not work, the Minister can issue a directive. That is the best way of making sure that it will not work and that one will end up with the Minister having to make directives.
It is worth making the point that we are talking about strategic guidelines not specific facilities which may or may not be necessary in a particular region. It is not helpful to start dragging in the waste management planning strategy, which is on a regional basis which is totally separate from this and which is specifically geared towards waste. Those decisions will be made by regional authorities. The Deputy is right. In one case, to date, one of the local authorities, which was associated with a region which agreed a particular strategy, withdrew from that strategy or voted against the ultimate proposal relating to thermal waste. However, that is completely separate from our discussion on regional planning guidelines.
We are concerned that an overall picture be drawn up of individual areas and that a generalised strategy be adopted. In relation to waste management, for example, consideration would have to be given to the amount of waste generated and the need to plan for its management on either a regional or local basis. The nitty-gritty matter of how waste will be disposed of, reduced, recycled, etc., is specifically dealt with in the waste management strategies for the various regions. These strategies have already been drawn up and are currently the subject of the public consultation process to which the Deputy referred. I do not believe it is useful to drag the discussion relating to one issue into the debate on another because the procedures for dealing with these matters are completely separate.
With regard to the Deputy's initial comments about consistency, etc., each layer of the planning process will proceed in a democratic fashion and will involve the maximum level of consultation and so on. At regional level, planning matters will be decided and agreed upon - it will take account of the various arguments to which Deputy Dukes referred - on a democratic basis and following a consultation process. The Minister will have the power to inform anyone within a region who ignores or dismisses the strategic guidelines that they cannot do so. In my opinion, there is no way the process could be any more democratic.
We cannot expect the other three or four local authorities in a regional authority area to state that the fourth or fifth authority agreed to the guidelines and must comply with them. The authorities have no sanction or power over other local authorities which possess equal independence. It is obvious, therefore, that in such cases of last resort the Minister must have the power to oblige authorities to obey and adhere to regional planning guidelines. I anticipate that Deputy Gilmore will not change his mind on this matter and I assure him that I have no intention of doing so either.
In my opinion, the people who adhere to the NIMBY syndrome are not amenable to any kind of reason, argument or anything else. These individuals can offer a huge range of reasons for not doing certain things or taking particular actions. One can offer very reasonable counter-arguments but in the end it comes down to one argument, namely, that these people do not want something built beside their house or property.
Amendment put and declared lost.
Section 27 agreed to.
Acting Chairman
We will now suspend our deliberations until 11.55 a.m.
For the information of Members, there is a misprint on the list of grouped amendments. Amendment No. 218 is being grouped with amendments Nos. 220 to 222, inclusive, 227 and 241. We will commence on amendment No. 218 when we return.
Sitting suspended at 11.45 a.m. and resumed at 12.00 noon.
Acting Chairman
We will resume consideration of the Bill on section 28, amendment No. 218. Amendments Nos. 220, 221, 222, 227 and 241 are related to amendment No. 218. I propose to take them together by agreement.
I move amendment No. 218:
In page 44, subsection (1), line 43, to delete "shall" and substitute "may".
In a way this is a continuation of the debate we had on the earlier amendment, although this relates to the planning process in its totality whereas the previous discussion related just to regional planning guidelines. This is about the directions, guidelines, orders and instructions the Minister for the Environment and Local Government can give to planning authorities and I seek to moderate the hand of the Minister in the direction of the planning process through these amendments.
With regard to amendment No. 218, according to the legislation the Minister can issue guidelines to planning authorities, which is fair enough. That will be necessary and we have talked about that during the debate. The question is what status those guidelines have. Under the Bill the planning authorities must comply with the guidelines. They do not have any discretion in the matter and I seek to qualify that to give them discretion. Obviously they would have regard to the planning guidelines issued by the Minister but they would have also discretion as to where and how it would be appropriate to apply them. It is a classic case of replacing the word "shall" with "may".
Amendment No. 220 relates to section 29, which states that "the Minister may from time to time issue policy directives to planning authorities regarding any of their functions under this Act and the planning authorities shall comply with any such directives in the performance of their functions". I seek that the replacement of the word "directives" with "information" and that it would be in order obviously for the Minister to inform planning authorities about his policy on various matters. That is a matter of information on which planning authorities could exercise some judgment as to what extent they take it into account. There is a big difference between the Minister issuing a policy directive, which tells the planning authority what to do, and a Minister informing planning authorities about Government policy in regard to certain matters from time to time.
As a consequence I seek the deletion of the reference to planning authorities having to comply with such directives in the performance of their functions in amendment No. 221. I seek the deletion of section 29(2) in amendment No. 222, which again is a consequence of the earlier amendment. I seek the deletion of section 31(4) in amendment No. 227 which states "in exercising any power conferred on them by this Act, neither the manager nor the elected members of any planning authority shall exercise the power in conflict with any direction which the Minister may give under subsection (1) or (2)". Again the Bill, as drafted, gives the Minister the power to give orders to planning authorities which do not have any discretion. They must comply with them.
With regard to amendment No. 241 I seek the replacement of the reference by a different one. Under the legislation this relates to an individual planning application. In deciding such an application a planning authority must have regard to "where relevant the policy of the Government, the Minister or any other Minister of the Government." That is pretty sweeping. Governments change and different Governments may have different policies. Even in the same Government different Ministers may have different policies, sometimes on the same subject. The planning authority is required to have regard not to what is enacted by the Legislature but to the policy of the Government. That is totally inappropriate. Government policy is not legislation; it changes and can even change during the lifetime of a Government.
It is appropriate and, indeed, proper that a planning authority would have to comply with legislation which is properly enacted. A local authority obviously would have to comply with regulations made by a Minister which again is part of the legislative process and for which there is a certain amount of parliamentary control. However, the idea that planning authorities in making decisions on individual planning applications have regard to something as nebulous as Government policy is quite wrong and, in turn, that that policy can then inform policy directives which are issued by the Minister with which the planning authority must specifically comply. That should not be permitted.
For example, let us take the issue of high rise buildings. It is conceivable that a Minister or Government might have a policy on such buildings. They may say that 30 storey buildings can be constructed in the centre of Dublin. It might never be enacted or approved anywhere but one day the Minister simply makes a statement saying "I am in favour of high rise buildings". That is Government policy with which the planning authority must comply. The Minister could also have the power to issue a policy directive to a planning authority, with which it must comply.
For example, the Taoiseach made an off-the-cuff remark and described the Spencer Dock as a monstrosity at the time of the oral hearing on its development. Was that Government policy? What was Government policy on the scale of the development? According to the Bill, the planning authority would have to have regard to Government policy in making a decision. Was the Taoiseach's statement on the Spencer Dock the policy of the Government? If that is not clear enough, the section refers to the Minister, in this case the Minister for the Environment and Local Government who remains silent on the issue, as was proper when the oral hearing was under way, or any other Minister of the Government which would, presumably include the Taoiseach.
This area of the Bill requires planning authorities to have regard to the policy of Government or individual Ministers of the Government in making planning decisions and the conversion of that policy into directives by the Minister for the Environment and Local Government, with which the planning authority has no discretion but to comply. This is not appropriate and should not be included in the Bill. It is perfectly in order for the Government to communicate its policy to planning authorities and that they have discretion as to whether they comply with that policy, to what extent and how they factor that into the making of planning decisions. It is also in order that planning authorities comply with enactments because it is legislation passed by the Oireachtas following parliamentary scrutiny. However, the provision for ministerial powers is far too strong. It should be removed where it does not apply and diluted where necessary.
I have some sympathy with Deputy Gilmore's proposal but this is not unmixed. I was tempted in the earlier discussion before the break to refer to one infamous presentation on the futility of consistency but I thought it might inflame matters. It is a relevant consideration. We are dealing with the interface between policies adopted for particular reasons at national level and their implementation at ground level. This is a difficult area to get right. None of us are entirely black or white on the issue. The Minister patted himself on the back for being the one most inclined to leave discretion to local authorities. He is also the one who will issue directives to local authorities. There is no single answer to these issues where there is a crossover between national and local policy. It is a grey area and we must look at the way we deal with specific issues.
I agree with Deputy Gilmore about looking at the way these directives are issued. My amendments Nos. 224 and 613 deal with the form of these directives and the degree of scrutiny they are given before they become applicable. I have no doubt that there are areas where it is entirely appropriate for the Minister for the Environment and Local Government to issue directives on planning matters to local authorities. However, this should not be done without proper parliamentary scrutiny, as any regulations on important issues should not be made without proper parliamentary scrutiny.
I have no difficulty with concealing circumstances where there might be a conflict between the wishes of a local authority and an interest expressed at national level. Last year, the Minister issued guidelines to local authorities on development densities, which were worthwhile. I would like to see local authorities having to operate on the principle that in urban areas, where further expansion is required, it should always be on the basis of far higher densities than we have used up to now. Urban sprawl is not only a feature of our cities but also fairly small towns. This is undesirable for many reasons. I would have no difficulty with a directive being issued to urban planning authorities stating that until further notice they are not to plan for urban development or social housing on the basis of any less than ten or 12 dwelling units to the acre and that the same would apply to private developments. This would meet many objectives, including single houses and one-off developments which have become contentious in county planning areas. The Government would require backbone to do that but it would be desirable.
I do not agree that a directive of that kind should be issued by the Minister and made binding on local authorities without being subjected to proper parliamentary scrutiny, because parliament is the place where decisions of that kind should be made. I do not have any difficulty with the Minister issuing directives. Guidelines are less constraining. I have read a number of the guidelines produced by the Minister and the Department and almost without exception, they provide good advice and suggest limits and frameworks within which certain things should be done. Policy directives are different and must be properly scrutinised. However, policy directives are required in certain cases, not because we want to impose unity of action on local authorities but because we want certain values and requirements reflected in the daily operation of planning.
If we are talking about subsidiarity issues, planning is not really the ground on which to fight that battle. That battle will be more appropriately fought during the discussion of the Bill the Minister will publish next week. I have put down my amendments on the issue. While I agree, in principle, with Deputy Gilmore on subsidiarity, this is not the correct place to discuss it.
I do not disagree with the analysis of Deputy Dukes of the current situation regarding devolution. The general principles I outlined in the discussion before the break apply again in this case. The group of amendments being discussed intend to remove the Minister's policy making functions from the planning system in a variety of ways. Obviously I could not accept those amendments.
While we can all think of various scenarios in planning as to what a Minister might or might not do with the powers he or she might have under this or previous legislation, the Minister, as a body corporate, only becomes involved in setting planning policy where it is absolutely necessary in the national interest or to facilitate all users of the system or whatever. The experience since 1963 and especially after the setting up of An Bord Pleanála has been that various Ministers have not issued edicts and directives for the sake of it. It is important to state that and to put it in context. It is also important in the context of Chapter IV which concerns guidelines and directives. While the two are lumped together, Deputy Dukes explained clearly the difference between the two and it is an important distinction.
Amendments Nos. 218, 220, 221 and 222 would remove the requirement for planning authorities and the board to observe national planning guidelines and planning directives, which we have renamed as information, when they perform their functions. Anyone who listened to the debate on Second Stage, who listened to the debate in the Seanad or who reads the record of both Houses will find that one of the points most consistently made by Deputies and Senators across the political spectrum regarding planning, the Bill and the decisions made by planning authorities was the huge variance in decisions made by planning authorities and even by planning officers within authorities. That may or may not be a valid criticism in some cases but it is a fact that such variance exists between planning authorities and, to a certain extent, within authorities.
The guidelines and directives issued by the Minister set out certain planning principles which should guide decisions in the area and introduce some measure of certainty into the planning process. I do not say it is perfect but that measure of certainty is important so that an applicant for planning permission has a good idea in terms of guidelines or directives as to the criteria and what might or might not be acceptable. If I accept the Deputies' amendments that certainty would be removed. Furthermore, if I accept them and my amendment whose purpose is to require the policy directives to be subject to positive resolution by both Houses is accepted, this would permit planning authorities and the board to ignore directives which would be laid down by the Houses of the Oireachtas. That is not acceptable.
Under section 31(1) and (2), the Minister can require planning authorities to amend a draft development plan or development plan where the plan fails to set out an overall strategy for the proper planning and sustainable development of the area or where it significantly fails to comply with the requirements of the Bill. Amendment No. 227 in the name of Deputy Gilmore would remove the obligation on a planning authority to conform with this direction by the Minister. I cannot accept that. A former Minister in the party of which the Deputy is now a member found himself at loggerheads with the local authority in the Deputy's constituency prior to the previous general election. It was drawing up its plan in a way he found unacceptable in that it was concentrating on small details first and then debating the overall strategy. The Minister was right in that case to point out to the authority that it was not conducting matters in a proper fashion. To remove that right from the Minister would not be in the best interests of planning and development. Deputies will also be aware that, to date, no order has been made by the Minister under the powers of the 1963 Act. However, if the Minister had to issue a directive or order, it would not be acceptable to Members of the Houses of the Oireachtas that such a directive or order could be ignored or circumvented by a local authority.
Amendment No. 241 would remove a requirement of a planning authority to have regard to Government or ministerial policy when making a planning decision and would replace it with a requirement to consider any relevant enactment. Planning authorities must comply with any legislation which applies to them and this amendment adds nothing to that. It is critical that local planning authorities, when making their decisions, should take national policy into account. That would involve matters such as the national spatial strategy, which would be directly relevant to planning, or the provisions of the national development plan. Policies may not always be the subject of primary legislation, which is the point I understood the Deputy to make earlier, but they may still be critical to the good of the nation. There has been an honourable tradition in this country that policies and commitments made under them, once initiated by a Government and once the process has been set in train, are followed through irrespective of the colour or hue of subsequent Governments, and there is not a wholesale reversal of policies. Any attempt to remove any national overview of the Minister of the planning and development process would be wrong. Removing the right of the Minister to issue guidelines or directives under the Planning and Development Acts would also be wrong.
As can be seen from section 29, directives will be laid before each House of the Oireachtas. Despite whatever directives or guidelines might be in place, section 30 safeguards the situation about which the Deputy expressed a concern that a Minister might decide during the processing of a planning application that he would issue a directive about a specific planning application. Section 30 deals with that by stating that the Minister cannot exercise any power or control in any case under consideration by a planning authority or the board.
We can spend a considerable amount of time having a philosophical debate about this but I believe what is in the Bill is reasonable. Deputy Dukes mentioned that there were grey areas and that a balance must be maintained. Later amendments will better achieve that balance. I would not contemplate any prospect of removing the Minister's or the Government's right to have a say in the planning process.
I am not arguing for the complete removal of any national perspective on the planning process or any national consistency or policy. In the course of an earlier discussion on the national spatial strategy, I advocated the adoption of that strategy which would have put in place, by way of public debate, a procedure for the adoption of a spatial strategy which would act as a framework for making planning decisions.
There is a distinction between the case cited by the Minister in relation to his predecessor's intervention in the Kildare county development plan. That intervention concerned the procedure rather than the policies being pursued. That is an important distinction to bear in mind.
The problem exists at two levels. I accept that under the Minister's amendment, policy directives will have to be laid before the Houses and so on and this will improve the Bill from the point of view of democratic authority for making policy directives. However, it operates at two levels. First, the directive or guideline issued by the Minister and what status it has in the planning process. Second, the requirement for the planning authorities, namely the individual local authorities and An Bord Pleanála, to have regard to Government policy.
On the issue of Government policy, the Minister says that most Governments tend to follow what their predecessors have done. Let us take the example of the Luas. The previous Government stipulated that Luas would be over ground yet the present Government says that it should run under ground in the shifting sands on which this city is built from St. Stephen's Green inward. We have yet to see where that policy will lead. It would be odd if successive Governments did not change each other's policies and there have been such changes.
There have also been changes in policy over time. For example, mining licences were issued to develop open cast mining in the early 1970s in pursuit of Government mining policy. Not in a month of Sundays would such licences be issued today for a whole range of environmental reasons and the problems which have arisen with tailings ponds and associated environmental problems. There was also a period when there was a major industrialisation drive which might not find the same favour in planning terms now as it would have two or three decades ago.
Deputy Dukes mentioned the residential density guidelines which basically state that residential density in urban areas should be increased, particularly along major transport corridors. I recall discussions in local authorities ten to 15 years ago when low density housing was the environmental buzz word. I did not agree with that point of view then nor do I now.
It goes to show that one cannot always agree with environmentalists.
One either develops or one does not. The impact on the physical environment, whether from low or high density housing, tends to be the same. There is also the issue of the sustainable use of land and so on. Policies change with time and with Governments and a provision in planning legislation which stipulates that planning must have regard to Government policy is fairly broad.
The chairman of An Bord Pleanála met the committee some months ago and issues were raised concerning cases where the board decided to grant planning permissions which had not been recommended by its inspectors. In replying to questions raised by members of the committee, the chairman said that one of the requirements was to have regard to Government policy. He seemed to be saying that some of the decisions made by the board could not be evaluated against previous decisions but against current Government policy. He also seemed to suggest that if there was a nod from Government in favour of taller buildings, high densities or whatever, the board was required to go along with that. There is a need for clarity. There is nothing wrong with having a national view on planning and what the Minister calls national policy being pursued by planning authorities. The problem is defining national policy and who makes it. National policy should be made in open forum through our parliamentary process following the usual public debate and so on, rather than on a time by time or Government by Government basis by individual Governments or Ministers.
This discussion is about how one affects the interface between national policy and objectives and planning decisions. The case I am making is that decisions by an individual Minister or Government is not the appropriate way to do so. The Minister's amendment concerning policy directives goes some way towards meeting my objective but we need to tidy up this area. At the end of the day, Government policy and how it relates to individual planning decisions is being interpreted, not be individual Ministers, Government or in public forum, but by An Bord Pleanála. With respect to the board, it is not clearthat it always has the correct handle on Government policy or how it relates to the planning process.
We can have a philosophical argument but we are not talking about policies determined on the nod of a Government, or a Minister or Taoiseach having a conversation in a car. We are talking about specific guidelines and directives issued by Government to guide and direct local authorities and An BordPleanála. The Deputy said that he is not arguing for the removal of a national overview on the planning process. However, his amendments would do just that. I am not in mind to do so.
As regards the status of guidelines and directives, guidelines are advice given to local authorities and An Bord Pleanála which they are supposed to take into account when making their decisions. A directive, which is a clearly set out order reflecting national policy and which must be complied with, is much stronger.
The previous Government took a policy decision regarding Luas, including that it would go overground. That basic policy was followed by the current Government which has decided there is a better way of doing things.
Government policy in relation to mining, quarrying, industrial development, etc., is evolving. What was acceptable ten, 15, 20 or 30 years is no longer acceptable. Policy has evolved and we have all become more environmentally conscious, etc., which is only right. In this Bill we are evolving and changing policies which have been in place for quite some time.
There will not be a meeting of minds on this and I cannot accept the amendments.
Amendment put and declared lost.
Acting Chairman
Amendment No. 219 is in the name of Deputy Dukes. Amendments Nos. 225 and 228 are cognate and I propose that amendments Nos. 219, 225 and 228 be taken together.
I move amendment No. 219:
In page 45, subsection (5), line 10, after "Oireachtas" to insert "and published".
My only concern here is to ensure these are accessible to the public and I am sure there is a very simple way of doing so.
If the Deputy agrees to withdraw his amendment we will bring a provision forward on Report Stage. There is a slight difficulty in the wording. It is usual that guidelines and policy directives are published, and I have no difficulty with the Deputy wanting to make this explicit. It would be necessary to redraft the amendments because, for example, I do not think it is necessary or even possible to publish revocations of guidelines as is suggested in one of the amendments. We are accepting the principle and will bring forward an amendment on Report Stage.
I am happy with that and withdraw my amendment.
Amendment, by leave, withdrawn.
Section 28 agreed to.
SECTION 29.
Amendments Nos. 220 to 222, inclusive, not moved.
Acting Chairman
Amendment No. 223 is in the name of the Minister. Amendments Nos. 224 and 613 are related and I propose taking amendments Nos. 223, 224 and 613 together.
I move amendment No. 223:
In page 45, between lines 21 and 22, to insert the following subsection:
"(4) Where the Minister proposes to issue, amend or revoke a policy directive under this section, a draft of the directive, amendment or revocation shall be laid before both Houses of the Oireachtas and the policy directive shall not be issued, amended or revoked, as the case may be, until a resolution approving the issuing, amending or revocation of the policy directive has been passed by each House.".
This is a subject of ongoing debate. The amendment provides that a policy directive cannot be issued, amended or revoked without the positive consent of the Houses of the Oireachtas, a position strongly argued for by Deputy Dukes and others. It is important here because of the mandatory nature of the policy directives in the Bill. As we discussed, a directive is an order which must be complied with by planning authorities. Earlier Deputies Gilmore and Dukes pointed out that this should be subject to positive democratic scrutiny.
The same procedure is not required for guidelines which do not have the same direct effect and which are not orders. Rather they constitute advice given to local authorities and I do not believe a similar provision is necessary in that context. The amendment has the same effect as amendment No. 224 in the name of Deputy Dukes.
Amendment No. 613 provides that all regulations made under the Bill should require a positive resolution of both Houses of the Oireachtas. Again we have had a general discussion on this issue, but in relation to certain regulations, such as policy directives, a positive resolution should be required and the Bill will now provide for that. In other cases I do not think the passing of a positive resolution is necessary. One reason for this is that in many cases regulations may have to be made at very short notice when unexpected issues arise. Given that the Houses may not be sitting for long stretches at a time it is not feasible for a positive resolution to be required for all regulations. Earlier I said I believed the committees should have some role in this matter and that they are a suitable vehicle for discussing draft regulations. However, this requires that the Houses of the Oireachtas reorganise the way in which business is done. I cannot accept the general nature of amendment No. 613. However, I think I recall the Deputy saying he would identify the specific types of regulation he thought may be appropriate in terms of positive resolutions. If he does so I would be very happy to consider and discuss all the proposals before Report Stage. However, I cannot accept an amendment which requires a positive resolution for all regulations made under the Bill and I think the Deputy will see the logic in that position. I intend being as positive as I can in relation to whatever suggestions he makes concerning resolutions.
I accept amendment No. 223 and am the first to admit that my skills in drafting legislation fall far short of those available to the Minister. For that reason I think the Minister's amendment provides exactly what I am seeking. Therefore, I withdraw amendment No. 224.
I listened to what the Minister said about amendment No. 613 which I will withdraw and replace with an amendment which distinguishes between the different cases referred to by the Minister. Not all regulations require the same kind of scrutiny. If the Minister does not mind, I must say I am delighted we have got to this point. He has read the gospel about regulations as often as I have and we are now doing something about it in a substantial Bill. The Minister's approach to policy directives represents substantial progress. I hope such directives when issued by the Minister and his successors are placed under the proper scrutiny.
It may be curmudgeonly and churlish to say that I hope Governments will take the view expressed by the Minister today. One of the difficulties I have found is that regulations and orders laid before the Oireachtas, and which are valid unless a vote is passed within 21 sitting days, present a huge problem. On the face of it it looks like a very reasonable procedure but, as I said previously, in almost 20 years in the House I do not think I have ever seen a Government voluntarily putting one on the Order Paper so it could be discussed. Governments seem to be delighted to make the argument that they will need to do things in an emergency and that the Houses may not be sitting, but they are also delighted that they can place an order before the Houses while they are not sitting and the 21 sitting days might become six months.
I thank the Minister for tabling amendment No. 223 which I think deals very well with the concerns I have expressed.
I welcome the Minister's amendment which will result in a major improvement in the manner in which policy directives are made. This procedure will clearly apply to the making of new policy directives, their amendment or revocation and these will have to be processed through the Houses of the Oireachtas. Is there a compendium of existing live policy directives with which planning authorities are currently required to comply? In the interests of public information and a public understanding of what is required of planning authorities, it would be desirable to publish such a compendium or, if one exists, to make it generally available. The publication of such a compendium would be necessary in order to draw a line under what currently exists, as this provision will presumably only apply to any new directives which are made. To know whether a directive existed prior to the enactment of this legislation and to be aware of its status, it would be desirable to know where we stand in regard to existing policy directives.
There are two existing directives of which I am aware - one is in relation to smoky coal and the other is a directive I issued in 1998 on updating retail shopping guidelines which were issued in 1982. Those directives will remain valid under section 240 of this Bill which states:
Nothing in this Act shall affect the validity of anything done under the Local Government (Planning and Development) Acts, 1963 to 1999, or under any regulations made under those Acts.
Those directives will remain in force and any new directives will be subject to the new planning and development legislation.
Amendment agreed to.
Amendment Nos. 224 and 225 not moved.
Section 29, as amended, agreed to.
Section 30 agreed to.
SECTION 31.
I move amendment No. 226:
In page 45, subsection (1), line 30, after "Minister" to insert "and, by implication, all members of the Government".
The intention of this amendment is to make it clear that any position taken by the Minister is taken on behalf of the Government.
The Minister for the Environment and Local Government is the only person who can issue amendments, guidelines or policy directives. Deputy Hayes's amendment is not necessary as his concerns are covered in the Act as it stands.
Amendment, by leave, withdrawn.
Amendment Nos. 227 and 228 not moved.
Section 31 agreed to.
SECTION 32.
I move amendment No. 229:
In page 46, subsection (1)(b), line 19, after “retention” to insert “by the owner for the time being”.
This amendment refers to section 32(1)(b) and simply seeks to make it clear that permission is required for the retention by the “owner for the time being” of an unauthorised development. The amendment merely seeks to cover a casewhere the development in question might have changed hands from the time of its first construction without permission. The amendment seeks to clarify that if permission is granted to retain an unauthorised development, such permission not only relates to the person who carried out the unauthorised development in the first instance but also to any person who subsequently became its owner.
This amendment would not have the intended effect. The Deputy's intention is already covered in the legislation because planning permission is not specific to a person. Rather, it is specific to the plot of land, building or structure in question. The Deputy's amendment could raise doubts. For instance, it could be seen to discriminate against people who hold long-term property leases. I am assured that the Deputy's concerns are covered.
Amendment, by leave, withdrawn.
Question proposed: " That section 32 stand part of the Bill."
I want to further explore an issue to which I referred on Second Stage. I refer to the issue of applications for retention. On Second Stage, I asked whether the time had come to consider abolishing the whole issue of retention. Obviously, when the 1963 Act came into being, regulated planning was relatively new and it was reasonable to expect that developments would occur where people did not understand the planning regime and that subsequent retention was the only way to deal with that.
Over time, the retention procedure has been abused. Developments have been undertaken where it would appear developers, rather than running the risk of applying for planning permission and being turned down, proceeded with developments and subsequently applied for retention. That certainly seemed to be the case in regard to the extension and further development of existing buildings. There is also a perception that it is easier to obtain planning permission in that manner and that planning authorities, faced with the reality that a building has already been constructed, are reluctant to refuse permission when retention is sought.
On Second Stage, I stated that the time had perhaps come to abolish the idea of applying for retention but to do so might be to go too far because I can envisage situations where, in the sale of properties, an extension to a domestic house for which planning permission was not obtained could be identified and the only manner to deal with that would be through the retention process. The Law Society drew this to our attention. I am raising the matter under the section rather than by way of an amendment because I would like the Minister to comment on whether there is some way in which the use of the retention mechanism could be tightened to avoid the type of abuses I have described which, unfortunately, are quite frequent.
I agree with the Deputy. If I recall correctly, the day of the national consultation process and certainly prior to that, one of the areas to which I said we would pay particular attention in this Bill was that of abuse of the retention system. The Deputy is correct in saying there is a perception that it is much more difficult to be refused planning permission for a premises that has been half built or is already built. The Deputy would agree that the process had grown up, so to speak, around people building an extension. When the local authority served them notices and so on, they waited until the last minute, or in some cases ignored the notices, went to court and the justice would ask if a planning application was being processed and if there was, invariably the judge would await the outcome of the application before hearing the case. The local authority would then have no penalty to impose because the person had applied and they would be in the very difficult position in relation to knocking down a structure or getting the person to remove a structure which had been already built. We have all seen this happening and this is why I wanted to consider the system of retention and so on.
I began to consider whether to remove the retention process though I was not convinced that I could. My belief was strengthened when I considered the matter in more detail. Genuine mistakes are made and I cited a case during Committee Stage in the Seanad where someone had built a house back to front, so to speak. The plans were lodged with the local authority and were obviously photocopied the wrong way round. This was not discovered until the person tried to sell the house and everything was in reverse, in mirror image, so to speak. These things can happen even though rarely. Other mistakes can also be made so for this reason we cannot get rid of it. The desire was to try to make it as difficult as possible for people who attempted to abuse the system and use this as a means of putting huge pressure on a local authority to ensure they obtained planning permission.
There are a number of provisions in the Bill. The enforcement regime is very important in relation to retention. The Bill includes a new enforcement regime to change people's perceptions that it is sometimes better to go through the retention system. We are trying to ensure that local authorities will be obliged to follow up genuine complaints about breaches of planning control within a specified time frame, that they will be entitled to retain fines imposed by courts for planning offences to finance this enforcement procedure and that they will be able to refuse planning permission, subject to the consent of the High Court, to any developer who has failed to comply with previous permissions. This relates to unfinished housing estates and so on. The fines have been increased from £1 million to £10 million for convictions on indictment and from £1,000 to £1,500 for summary convictions. In the case of an unauthorised structure, the Bill provides for a minimum fine of £10,000 or the cost of the structure if less than that for conviction on indictment or a minimum of £500 for a summary conviction. The Bill includes heavy financial penalties for applications for permissions to retain any unauthorised development. That might be done on the basis of the value of the building or on a square footage basis.
A person who chances his arm in relation to unauthorised development will be very severely dealt with under the Bill. It will not be worth a person's while to flout the law. As we all know, this is happening at the moment where the person puts moral pressure on the local authority. In relation to the courts and so on, lodging a planning application for retention will not be allowed to prejudice enforcement action. There is a whole range of measures to try to ensure that this ongoing scandal of abuse of the retention system does not continue. This is what will be in place under the Bill. My view that we should try to get rid of the retention system has changed on the basis of some of the experiences outlined to me. However, it should be very effective in relation to the problem highlighted by the Deputy.
I began with the same view with which the Minister began. While I am pleased with the provisions in the Bill on enforcement, I have proposed amendments, together with other Deputies, to tighten up this area. I cannot say I am happy with the situation as it exists, even as it will be if and when the Bill is enacted. We should really make it almost impossible to retain developments that have not got planning permission. The furthest in principle we should go is simply to provide for a limited number of cases or considerations which could be used to justify on an exceptional basis developments that had not received permission.
It is quite a dramatic situation at the moment. The Minister probably knows, as does Deputy Gilmore and I, that there are places where people are frustrated to the point where a councillor, for example, will say that his advice to people who think they might have difficulty obtaining planning permission is to go ahead and build anyway because the record of that particular local authority - I am not speaking about any one of them, there are many of them - is that approximately 90% of applications for retention are granted. In reality people can almost say about the planning system what they say about the tax system.
The worst thing one can do is to do everything by the book, because when one does everything by the book, the book gets thrown at you systematically. When a person applies for planning permission according to all the rubrics, there is all sorts of nit picking. People get very eloquent about this and talk about planners referring to the colour of slates, the design of windows, how far one is from the road, is one three feet wrong this way or that way and so on while the pluperfection of care is lavished on one-off developments, whether houses, apartment buildings or office blocks. When the structure is one piece, not a large estate, everyone seems to call in every cat, dog and devil in the planning process to make sure it is done correctly.
If, on the other hand, one is building 50 or 70 houses, there is a fair chance that three years after they have been built and the builder has moved off the site and incorporated himself as some other company, one will find cracked lintels, subsiding floors, stopcocks in the wrong place and so on. One will find that the same local authority which harried and harassed Deputy Gilmore when building his modest bungalow was unable to give the same degree of attention to the 50 or 60 houses built by a developer. They may also have failed to give the same degree of attention to a factory or large office building plugging into a bigger effluent disposal system. The system is very uneven. It is like the tax system.
The worst thing a person can do is to do everything by the book because all the rules are applied. If a person cuts corners and says very little, people do not find out much about him and he gets away with a great deal. I do not sympathise with such actions but the Minister knows that is reality. People will only cease such actions if they are convinced that (a) if they are caught they will have to pay huge penalties and (b) they have a 99.9% chance of being caught. To the best of my recollection - and I do not know how long I have been interested in planning issues - there has been only one case - I think it was in County Clare - where somebody who built six houses for which he did not have planning permission was obliged to bulldoze them. That is the only case of which I am aware where an unauthorised development was dealt with quite savagely.
The law says that in principle that is how all such breaches of the law should be dealt with. Although fining a person or a company for unauthorised development might be quite painful, it does not relieve the environmental pain created by them for the neighbours of the development. Developments are considered unauthorised because they do not fit in with the planning requirements for the area. Left in place such a development is an excrescence in the context of the proper planning and development of the area. Although the person who constructed the building might have been fined, that does not rectify the damage done to the area. It would be wrong to go on at great length about this.
The law should provide that only in the most exceptional cases can any application to retain an unauthorised structure be contemplated. Will the Minister outline some of the reasons he has changed that? With respect, I am sure he did not change his mind on this because somebody photocopied plans the wrong way around. There must have been something a great deal more important involved to make him feel we should not make it quite so exceptional as in principle might appear to be desirable.
I appreciate what the Minister said regarding the new enforcement provisions and the way in which retention will be taken out of the frame in cases where court action is being taken on foot of enforcement orders. The issue is, should an application for retention have the same status in the planning authority as an application for permission, as is currently the case? A person who applies for permission to erect an extension to their house and treated, as Deputy Dukes said, to the works. It is very often the case that the smaller the construction, the more thorough the examination.
A person might decide to erect the extension and apply for retention when it comes to the attention of the authority. The application is the same in theory in that no distinction is drawn between either application except that the balance of advantage lies with the person seeking retention. I am aware, in my 15 years as a public representative, of only one case where a structure was demolished on foot of an application for retention being refused. That related to a domestic extension where, I have to admit, there may have been an arguable case. I have seen worse developments granted retention. I know of one particular case involving an industrial development where a succession of applications for permission to retain were granted. The builder had changed the plans for which he had received planning permission and then sought retention and it was granted. This went on for years with each development retention being granted and given the benefit of the doubt.
Will the Minister consider abolishing retention? He is taking a sledgehammer to crack a nut. The Law Society put its case to us regarding the difficulties its members face in the conveyancing process when a building is in breach of the law and records no longer exist. It sought an amnesty with which I would not agree. They matter should be dealt with by the retention process. Will the Minister consider for Report Stage including a provision in cases of applications for retention that the applicant be required to satisfy the planning authority that that application does not arise from a circumvention of the planning process and outlining why such application should be considered? The threshold for those seeking retention applications should be raised. The standards should remain the same but we must consider whether the application should be considered in the first instance. That might deal with the problem. If a case arises where somebody is tilting the process a little every time in order to squeeze an extra bit from the planning authority, there should be a point at which that authority should be free to say they will not consider the application for retention. The matter will then become an enforcement issue which will seek its own conclusion.
The Deputies' points are valid and are ones which gave rise to the series of measures now included in the Bill on unauthorised developments and retention. We will look at and consider any further suggestions that might be put to us in the remaining debate.
It is important to reiterate that we are talking about higher levels of enforcement. Fines will be paid to local authorities to help employ more staff to ensure a higher level of enforcement. Deputy Gilmore referred to the person trying to squeeze the planning authority again and again. If somebody undertakes that once the Bill is in place he will be liable to pay a fairly substantial fee each time. We are talking in terms of a fee relevant to the cost of the building.
What we have here meets what has been taking place in the past and, as Deputy Dukes said, councillors will be careful when they realise that from now on the advice they have been giving, in terms of saying people should apply for planning permission and see what happens, will not be given so freely because they will be liable for enforcement. There are fines between £1 million and £10 million and, ultimately, when people apply for retention for a domestic dwelling or whatever else, instead of a fee of £16 or £18, a percentage of the value of the premises must be paid. That is a fairly severe imposition which will not be taken very lightly.
There is a strong section on retention and on the abuse of that system. Deputy Dukes suggested that it was not only the case of the person with the changed plans which led me to change my mind. It was in a sense, in that I started out saying nobody should be allowed to take this route through the planning system and that people should be made to suffer for wrongdoing. I used it to illustrate that there are genuine cases and genuine, relatively minor mistakes are made. If we were talking in terms of a person reversing his house or a mistake having been made, charging a percentage of the cost of the house under the new regime would be totally at variance with natural justice. The principle I started out with was that it should not be allowed at all. However, I am aware that there are circumstances whereby people make genuine mistakes and they must be catered for and on that basis I realised that it cannot be done away with altogether. However, I will try to ensure that those who flout the law suffer as a result.
We had a discussion about amnesties - Deputy Dukes suggested them - and I said if we had all-party agreement, I would consider it. Deputy Gilmore opposed it but his amendment No. 501c, in effect, talks about an amnesty and he might like to reconsider his amendment before we reach it.
Question put and agreed to.
SECTION 33.
I move amendment No. 229a:
In page 46, subsection (2), between lines 28 and 29, to insert the following:
"(a) requiring an applicant which is a body corporate to submit sufficient information to enable the planning authority to ascertain the true identity of the persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence the policy of the company;”.
This is the section of the Bill whereby the Minister makes regulations setting out the information required to be submitted in respect of a planning application. The purpose of this amendment is to require an applicant which is a body corporate to submit sufficient information to enable the planning authority, or anybody who has an interest in the application, to know who is making the application.
There are a number of reasons for this. First, it has been the practice that in many cases applications, sometimes for very substantial developments, are made to a planning authority in the name of a company. Sometimes the same developer can use a different company name to apply for different permissions and developments. This was the case with much of the difficulty, for example, which many local authorities had over the years regarding the completion of housing estates and the fulfilment by developers of conditions attached to previous permissions. They were circumvented because one developer, company A, was applying for a certain development and company B, which was the same developer, was applying for the next development and so on. To enable local authorities to take account of the track record of developers in making a planning decision, it is necessary to know who is making the application. This amendment requires the applicant to submit sufficient information to effectively state the beneficial owners of a particular company.
Second, with regard to the issue of corruption in the planning process, which is receiving much attention currently, it is also necessary to know who is applying for the planning permission and who is the beneficial owner of a particular company which might have an interest in a development.
It should be a requirement in law that persons applying for planning permissions will have to state who they are. It will not be sufficient to give the name of a company with an address at a firm of solicitors but with beneficial ownership about which no one knows anything. A certain amount of the basic information required should be up-front. The planning application should identify the developer and the beneficial owners. If it is a company, the name of the company must be given. For example, two solicitors clerks should not be nominated as the directors of the company. The application should state who the developer is who proposes the development.
That information should be up-front, it should be on the record, available to the planning authority and known to the public, along with the difficulties which have arisen in the past on the completion of housing estates, the enforcement of planning conditions, the granting of subsequent applications effectively to the same developer for developments where the track record should have been taken into account and any issue which might arise regarding the area of propriety in dealing with the planning process. Therefore, nobody would be able to hide behind the facade of a corporate name or a corporate identity to conceal the true identity of the developer.
I agree with the sentiments behind the Deputy's amendment. In the era we are entering, the more information we can have on file the better in respect of the provisions in the Bill which allow local authorities to take into account the previous history of builders and so on when deciding a planning application. The same can be said about the second reason the Deputy advanced regarding corruption, allegations of corruption or a climate of corruption. For that reason I accept the principle of the Deputy's amendment and he can bring forward an amendment for Report Stage.
We will have to consult somewhat with the Attorney General on this provision on the issue of constitutional property rights. We had to draft carefully the section on finishing housing estates and so on from a constitutional point of view. I accept the principle of the amendment and suggest the Deputy tables it again on Report Stage. In the meantime, we will work on a Report Stage amendment as well.
I will table the amendment on Report Stage. I thank the Minister for responding positively.
Amendment, by leave, withdrawn.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
I move amendment No. 230:
In page 46, subsection (2) (c), lines 33 and 34, to delete “on payment of the prescribed fee and”.
This amendment relates to one of the central issues in the Bill, the Minister's proposal to introduce, for the first time, a fee for submissions or observations made to a planning authority about a planning application. Until now, the planning process has operated as a public service, on the basis that every citizen has the right to object to, or comment on a planning application and that the planning authority considers these in the course of making a decision on the application.
The Minister proposes to introduce a fee so that anybody who wants to write to his or her local council about a planning application will have to pay a fee for the privilege of doing so. That should not be the case. The present situation, under which it is the democratic right of a citizen to make his or her opinion known to a planning authority without charge, should continue. The planning process is based on the assumption that the public has a right to be involved. The development plan process, with long periods for people to make comments and observations, and the planning application process itself are based on that assumption. The requirement on planning applicants to place notices in newspapers, and now to put a notice on the site of the proposed development, is for the purpose of alerting the public and anyone who might have an interest in the application or a comment to make on it, to the fact that an application has been submitted and that there is a period of time within which to make points of view known. This is a long established practice and has not been charged for, until now.
The Minister proposes to introduce a fee. He has not, to my knowledge, stated publicly what level of fee he proposes to introduce. I invite him to inform this committee what fee he proposes to introduce for this purpose. It has been suggested that the fee for writing to a county council would be £20. To my knowledge, that suggestion has not been denied by the Minister. He should clarify the matter and indicate to the committee what fee he proposes to charge for submitting observations on planning applications.
Apart from the change this will bring to the operation of the planning process, it will act as a disincentive to people on low incomes being involved in the planning process. A charge of £20 might not be the price of a lunch for someone at one end of the social spectrum but it is a disincentive for someone who is trying to balance a household budget and who may have a difficulty with a planning application. People who come to my advice centres and who talk to me about their problems will be affected by this measure. These are the kind of people who will postpone a visit to the doctor because they do not have the money to pay the doctor's fee. If people like these feel strongly about a proposed development they may be faced with the choice of going to see a doctor or paying a planning fee.
This proposal is fundamentally wrong. It will disadvantage poorer people even more than they are disadvantaged at present. It will change the public service nature of the planning process and is an ill-advised measure. The Minister should take the opportunity to delete it from the Bill as proposed in the amendment in my name and those of Deputies Dukes and Ó Caoláin. The present situation should continue where anybody with a point of view to express about a planning application can do so without the payment of a fee. It is a matter for the local authority concerned to consider the issues raised.
I appeal to the Minister to get rid of the fee. This is the amendment on which we have to decide the matter. We have received representations from the various bodies involved in the planning process, including the representative bodies of the planning professionals, to the effect that this fee should go. I appeal to the Minister to accept the amendment and abolish the fee.
I support everything Deputy Gilmore said. This is one of the few issues in this or any other Bill on which there is unanimity among those who are likely to be affected. The Minister may say this is not surprising because nobody likes paying a new charge but this touches in a very intimate way on the rights of ordinary members of the public to ensure their environment will not be interfered with in ways which they do not approve. As Deputy Gilmore said, there is no charge for making observations or comments in a submission on a planning application. This has been the case for some time and I can see no reason this should change. None of the improvements that we are setting out to make in the Bill in any way require a charge to be made.
I have heard the Minister say - he may well be correct - that we have the most accessible planning system in Europe so far as the general public is concerned and that it would not be much of an interference to make a charge of this kind. He is wrong. If we have the most accessible planning system in Europe so far as the general public is concerned and the strongest third party involvement in planning issues, let us keep it that way. Why should we interfere with it? As the leader of Deputy Gilmore's party has remarked once or twice, "If it ain't broke, don't fix it."
There is nothing wrong with giving the general public an untrammelled right to participate in the planning process. If, as suggested, the Minister is making the case that this is a very small charge - £20 - how serious is he about it? The late Frank Cluskey once remarked in his own inimitable way on a very difficult matter being discussed by Government, a decision he believed did not need to be taken, "You don't go through Hell just for practice." The Minister should not go through Hell on this issue just for practice. If the charge is small it is absolutely pointless. If it is large it is seriously and grossly unjust.
There is nothing to be said in favour of making a charge. It is pretended in some quarters that the general public's untrammelled right of access to planning decisions is slowing down development. That is absolute rubbish and balderdash. The right of the general public to be involved in planning decisions does not cause delays in the planning process. Delays are caused by a lack of resources and skills in local authorities. Frequently - let us not ignore it - they are caused by the bad construction of planning applications. They are sometimes caused by the simple fact that some applications are just plain stupid and should not be granted. They are not caused however by the right of the general public to intervene in the process. Any suggestion that such delays can be in favour of a charge such as this is unfounded.
I have tabled amendment No. 231 which would allow the making of a charge on those with an economic or commercial interest in a planning application if somebody wants to object to an application because the interests of his or her company might be affected by it. I have no objection to requiring a person who says, "My business will be affected if you allow that business to set up there," to pay for something. After all, there is a question of economic interest and value. Neither do I have an objection to making a charge in respect of planning applications. I have no difficulty with this because a grant of planning permission, whether to build a private residence, shop or industrial operation, is something of value.
John and Mary citizen in going about their normal daily business are not the ones pushing for development. It does not have to be a development near them, it just needs to be one in which they have an interest - perhaps an uneconomic interest or an interest in orderly planning and development. Any conceivable development will affect our environment. That is why we have planning laws. It is in order for members of the public to have the right to express their views, interest and objections, if any, without having to pay a fee. We are entitled to enjoy the protection of the law by virtue of being citizens. To pay to benefit from the protection of the law is not something I would support.
I do not know whether any of the other arguments advanced will be brought forward by the Minister. There have been recent allegations to the effect that people are being given financial inducements to make objections to planning applications. Charging a fee of the kind the Minister seems to have in mind will not make any difference one way or the other; it is wrong and something with which we should deal and should be punished if it can be proved it is happening but it will not be affected one way or the other by the proposal to levy a charge on persons making, to use the words in the Bill, submissions or observations on a planning application.
To summarise, I have no difficulty with there being a charge on those who have a direct economic or commercial interest in a planning application but I reject the idea that the general public, the ordinary citizen, should have to bear any kind of charge in the context of seeking the protection of planning law for his or her environmental interests.
This is, as the Deputies said, one of the sections of the Bill which has received much attention inside and outside the House. The arguments have raged on both sides for some time and I do not intend to repeat all of them again. Deputy Dukes said that there is unanimity on this matter. There is unanimity on one side of the argument. Equally I have met a large number of people who believe it is a good idea that people should pay a fee for any public service of this nature and they already do so in a variety of areas. The principle of paying a fee has been accepted in planning matters prior to this for An Bord Pleanála, to whom we pay other fees for public service. I am not introducing any bright new concept or breaching any principle that has been in place prior to this. Looking at this in isolation is not a good idea. It has to be looked at in the context of the whole Bill.
The local authority is the key decision making body in planning control. To strengthen that position the Bill outlines for the first time in Irish planning law, a statutory recognition for any submissions or observations which members of the public make to a local authority regarding a planning application. There is no statutory obligation on local authorities currently to even consider submissions made by members of the public. People have the right to submit their paper or observations, lengthy documents or short letters and the local authority has every right - presumably none of them would do this - to put them in the bin or to put them on a tray and ignore them. In return for a fee we are providing, for the first time , in this Bill for statutory recognition for any of these observations.
Members of the public rather than being disadvantaged are greatly advantaged in that they have a categoric assurance backed up by law that their observations or submissions will have to be considered by the local authority. They are getting that assurance on the basis of a fee which I have said previously will not exceed £20. The £20 will not cover the full cost of a planning application or the processing the local authority has to initiate once a submission is received. The fee ensures that that person has a right to be informed of and to appeal decisions of a local authority to An Bord Pleanála. Deputies opposite may argue that they have that right at present. That is true. What is also true is that any Tom, Dick or Harry can make an objection to An Bord Pleanála, not having bothered their barney to go into the local authority and express their views while it was being processed by that local authority. If they did so up to now that could have been ignored but, in general, was not ignored. They will have the right to appeal the decisions of a local authority to An Bord Pleanála.
The reason this is being written into law is that in far too many cases people are not using the system initially to make their views known to the local authority so that it can consider the submissions, objections or observations of local people who have a view on a planning development. That right of appeal to An Bord Pleanála is currently being abused. Members know that. Dozens of cases have been cited during the course of Seanad and Dáil debates about the abuse of this process. This is one of the ways we are trying to ensure it is not abused any further. We are talking about a small fee for which one is registered and gets statutory recognition of one's complaint, observation or submission and has the right to appeal the decisions of the local authority to An Bord Pleanála.
Deputy Dukes' other amendments Nos. 231 and 578 would allow for a fee to be paid in certain circumstances where the person making the submission or observation had a commercial or economic interest in the application or whose commercial or economic interest might be affected by the application. I know what the Deputy is trying to achieve but I do not think we should discriminate in this manner. For example, it would mean that a next door neighbour would have to pay a fee for making a submission regarding a development he or she considers would affect the value of his or her property while someone at the other end of the country who is not affected in any way would not have to pay a fee. That would get us into all sorts of situations where we would be accused of discrimination and so on. I realise that is not the intent of the Deputy's amendment but that will be one of the effects of it.
On amendment No. 578, we have had a good example in the past five or six months of what would happen if we were to accept the type of amendment proposed here. It seeks to insert the words: "by natural or legal persons, other than public or community interest groups, who or which have a direct economic or commercial interest in an application by another party." The recent example involved a decision made by the board where there was a bona fide residents group set up in an area and where a commercial interest was interested in preventing a factory from opening because it would lead to competition for them sponsoring or making large donations to the local community group. One would leave oneself wide open to that. We are conferring statutory recognition on the submissions or observations. To date there has not been any obligation requiring planning authorities to inform persons who make planning applications of the outcome of a decision on a planning application. Under the new regime those who make submissions, apart from having the right to appeal, shall have them carefully considered by the local authority and they shall be entitled to be informed of the decision. In the past people did not know the outcome of planning applications and lost out because they did not appeal on time. We are not trampling on anybody’s rights but the principle of statutory recognition in return for a small fee is the least we can ask.
The Minister has not made any case for the fee. He has confirmed it will not exceed £20. The new statutory rights that he claims will be conferred on the public involve nothing new in practice. Those rights are already enjoyed by the public. They may not be enshrined in statute in the way he is describing. If somebody writes in to a planning authority objecting to or commenting on a planning application, it is filed, taken into account and examined by the planners. When the decision is made by the planning authority, the person gets a letter indicating the decision and pointing out that if they have a continuing interest in the matter, they may make an appeal to An Bord Pleanála. Under this section the public will not be given any new power that they do not already have.
The issue the Minister raised about people making appeals to An Bord Pleanála who have not initially made comments to a local authority is a separate issue which we will debate in due course. The Minister's logic in that regard is a case for encouraging rather than discouraging people to make their comments to the local authority. They will be discouraged from doing so if they are charged a fee. I do not want to repeat the arguments made previously other than to say that the only argument I heard in relation to the introduction of a fee, and the Minister did not rehearse it when responding on this, was that the people who make objections to local authorities about planning applications clog up the system.
I invite the Minister to consider the practical and administrative implications of introducing a £20 fee. In addition to staff being required to put a letter objecting to a planning application received in a planning department on the relevant planning file, they will be obliged to receipt fees and to put in place a control system for the handling of money. In light of the small amount of revenue such a fee will generate for local authorities, the additional administrative burden its collection will place on local authorities will be significant.
My main reason for opposing this measure is that it is wrong to claim this is a service provided to the public. The public have a right to a say in such matters. This is about public participation in the planning process, not about a person going to a local authority to seek a service and being obliged to pay for it. This is about democratic rights. It is not about purchasing a service from a local authority. The planning process is public and the public have a right to be involved. That has been accepted by everybody. The Minister proposes to charge for the exercise of that right. The charging of this fee is different from charging for a service. The Minister is wrong to propose the introduction of such a fee. He strongly defended its introduction, although the arguments he made are paper thin. I ask him to reconsider its introduction.
This is not a good measure and it is not one that should be included in the Bill. There are many positive measures in the Bill. Members have made positive contributions to the debate on the sections dealt with and they have been constructive. It would be a great pity if this good legislation was remembered for the introduction of this proposed fee. The Minister will regret proceeding with it, if he does so. He should reconsider its introduction and remove it.
The Minister talked about unanimity on a view that is the direct opposite of mine on this issue. He is right. Who is unanimous on that view? Who are the people who are unanimously in favour of making this charge? They are the people who allege public participation in the planning process causes delays. They are the IBECs of this world and the developers. There is no basis for their claim. If I wanted to, I could be smart and say that if the Minister is telling us the objections from residents' associations, An Taisce and others can be binned by the local authorities, and that happens, he should tell us what causes the delay in the planning process. It does not delay the planning process to throw a good few letters into a bin, if that is what is happening. If they are put on file and not read, the handling of them will not delay the planning process. I wish some of the people who argue in favour of this charge would realise that. However, that has nothing to do with the principle of this matter.
The Minister made a fair point, that this Bill, for the first time, gives statutory recognition to observations or submissions made by members of the general public on planning applications. That is good, to be commended and I support it. This amendment proposes the deletion of certain words from the subsection, but we want to retain the remainder of it because it is good. It is right that we should give the making of such observations or submissions statutory recognition. I invite the people who make the nonsensical argument in favour of this charge to hold their horses and think about the reality of this matter. It is perfectly in order for people who live in an area that will be affected by a development to have the right to be heard and they should not have to pay a fee to exercise that right.
Some people think that the more letters a public representative gets on an issue, the greater the effect will be. We are all bedevilled by this problem. Daily, we may get 75 copies of a circular letter on an issue. We may get a large brown envelope with a brief letter that may have 237 signatures on it. If a group is making a point worth making, it can state that it is making that point on behalf of 237 people. I do not need to see the 237 names, nor does the Minister who is sponsoring the legislation. There are ways in which people can and should be advised on how to make an effective submission. After I have read the 95th letter urging me to do something, I begin to think that while I was in favour of the measure sought when I read the first letter, I might not bother about it if that is the way the people concerned intend to carry on. However, I usually manage to rise above that kind of irritation. It is not an argument about the principle of what is being proposed to say that councils might have to deal with a good deal of letters. That is not what the issue is about.
The Minister said rightly that we have fees for other matters. We have, but I cannot think of a case where people have to pay a fee to enjoy the protection of the law for their interests as citizens. We do not pay a fee to have gardaí; we pay taxes. Likewise, we should not have to pay a fee to involve ourselves in the planning process. We paytaxes for that. The cost should be funded by taxes. I make a clear distinction between that kind of service and the charge I have paid for years in County Kildare for refuse disposal and the charge I used to pay willingly and without the slightest niggling for water, which, no doubt, one day soon I will have to pay again. Costs can be attributed directly to the provision of those services. One cannot attribute a cost for the imposition of law and order or the exercise of one's right to be heard in relation to planning matters.
The Minister might as well propose that we should pay a fee to vote - to be consulted in that way. He would not do that because he knows he would not have a snowball's chance in hell of getting away with it, but the same logic applies to the introduction of this proposed fee. Why should we charge people a fee for invoking the protection we are writing into the law on their behalf? The Minister pointed out a generous gesture in the Bill. He said that under it people will not only have the right to be heard on planning applications, but they will also have the right to make an appeal. If a person pays this fee to make an observation or submission on a planning application, the wonderfully generous State will give him the right to appeal to An Bord Pleanála if he disagrees with the planning decision. The person already has that right without paying any fee at planning application stage.
It is wrong to limit the right of appeal to An Bord Pleanála to people who have made observations on the original planning application, if only because the planning authority might impose conditions in relation to the original planning application that were not envisaged in the application but which make the decision injurious or disagreeable to the people affected by it. It would be bizarre that if I objected to a planning application because I did not like it from the start and made my comments and, disliking the decision of the planning authority, decided to appeal to An Bord Pleanála, I should have the right to do that whereas my next door neighbour, who did not find the original application as objectionable as I did but found one of the conditions objectionable, should be excluded from the right to appeal to the board.
I say "thanks, but no thanks" to being given the right to appeal to An Bord Pleanála as a result of paying this fee. It is not fair to require people to pay a fee to make an observation in the first place. It is also not right to limit the right of appeal to An Bord Pleanála to those who have paid the fee because they made submissions or objections. There is no logical sequence in that. The Minister should not allow himself to be so irritated by the fact that I am quoting some of his words, that is, that too many people are not bothering to give their views to the local authority in the first place before having the cheek or temerity to appeal to An Bord Pleanála. Why should they, especially if they do not object to the original application? Why should they not appeal toAn Bord Pleanála if they disagree with some of the conditions the planning authority puts on a grant of permission? One cannot jumble these things together and claim the package looks better. One must look at the various stages of the package.
In my original comments I acknowledged that there is a problem with commercial interests offering financial inducements to people to object to planning applications. I am aware of the case to which the Minister referred although I will be discreet and not bell the cat. It is outrageous carry on. However, it will not be affected by imposing a charge of £20. If somebody is willing to pay several thousand pounds to a group of people to induce them to object to a planning application, the practice will not be affected by those people having to pay a charge of £20, particularly if they are clever enough to have one person write in on behalf of 235 residents of the area and make an objection on their behalf. Under the Bill, the person who does so will have to be heard and will pay one fee. The Minister will not get 250 times £20 out of it. He will get £20 and the appeal will have an entitlement to be heard in the same way as 250 appeals. That is right and logical. There is nothing wrong with it. In fact, I always advise people to make their objections in that manner.
Nevertheless, charging a fee of £20 will not affect the possibility that somebody might offer a large financial inducement to get them to object. I accept that it is wrong. The leader of my party, a constituency colleague of the Minister, has said it is wrong and the Labour Party believes it is wrong. All Members of the House would strenuously object to it but the problem will not be solved by imposing this mean little charge on the right of the individual to object to a planning application. If that is the problem the Minister wishes us to deal with, by all means let us do so or find ways of doing so. However, it is not a reason for charging people £20 to object to a planning application and it should not be paraded in that way.
We are regurgitating the arguments we made previously. Deputy Gilmore said that people have the right at present to receive acknowledgements from local authorities. They also receive the final decision of the local authority which notifies them that they can appeal the decision. That might happen in some local authorities but it does not happen in many. It is good practice but it does not happen in every local authority. It is not required. Legally, a person who is not informed has no legal right to raise the issue or to challenge it in court.
The Deputies did not hear me use the argument that this fee is a means of preventing the system being clogged up and to discourage people. I did not use that argument at any stage because the fee is not being introduced to discourage people from making objections, submissions or observations to the local authority. That is not its purpose. A reasonable argument can be made that it might have the opposite effect and increase the number of people who wish to register their observations or submissions with the local authority in order to retain their options in relation to planning appeals. The fee is not designed to discourage people from making objections or submissions and I doubt that it will have that effect.
It is a small fee in exchange for giving extra statutory rights to members of the public. Everybody has a right to a passport but we must pay a fee for it. We have rights to other things, including appeals to An Bord Pleanála——
The Minister mentioned passports. Has he looked at his lately? Inside the front or back cover one will find a statement to the effect that the passport is the property of the Irish Minister for Foreign Affairs. That is outrageous. The Minister for Foreign Affairs is telling the holder that he is doing him or her a special favour and that the person is privileged by being allowed to have a passport to travel. This is something the Minister should take up. It is a question of rights.
We could get a refund of our money.
The Bill provides for a fee. In return for that fee we ensure that people are informed and can appeal a decision to An Bord Pleanála. The point Deputy Dukes raised was one he also made on Second Stage with regard to people who might be affected by the conditions attached to the grant of permission. We have an amendment prepared on this issue. I accept the point that somebody might be happy with the planning application but the local authority applies a condition on the grant of permission which could adversely affect somebody close to it. We have introduced an amendment because it was of concern to everyone.
Which amendment is that?
Amendment No. 316.
Deputy Dukes asked why people should not appeal to An Bord Pleanála without going to their local authority. The local authority is the planning authority for an area. People should make their observations known to the local authority on any individual planning application. Approximately 90% of the final decisions on planning applications are made by the local authority so people should make their initial observations, submissions or objections known to it. An Bord Pleanála is a court of appeal. We are not taking away anyone's rights. We are only introducing a small administrative fee to enable the local authority to provide an enhanced service to members of the public. We all have strong views on this issue. I will not delete the part of the subsection relating to the fee.
The Minister is in inflexible mode on this issue. When he gets into that trench, it is difficult to dig him out of it.
The Deputy is against blood sports.
I will leave that for the members of the Minister's party because I hope that in their own interests they will see merit in chasing him out of his hole. I would normally ask the committee to formally divide on this amendment but time is at a premium. However, I give notice that if the Minister does not accept the amendment, I will resubmit it on Report Stage. If he does not change his mind, then his unfortunate colleagues will have to trudge through the lobbies in support of this unwise measure. Since we have not succeeded in persuading him to abandon this folly, I hope that between now and Report Stage the members of his party, and the other supporters of the Government, might be prevailed upon to get him to see wiser ways on this issue.
I agree with Deputy Gilmore. Perhaps the Minister should consult with some of the Government backbenchers whom I urge to persuade him to change his mind. If the Minister remains as unpersuaded as he is today, he should follow Shakespeare's advice, "cry havoc and let loose the dogs of war".
I am in favour of the fee so I will not be persuaded.
Amendment put and declared lost.
I move amendment No. 231:
In page 46, subsection (2)(c), line 35, after “period” to insert “and to require certain classes of persons with a commercial or economic interest in the application or whose commercial or economic interests might be affected by the proposed development to pay a prescribed fee”.
Apart from the fact the amendment is probably badly drafted, as the Minister pointed out, there is no point pursuing it as amendment No. 230 has been defeated.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 232 and 462 are related and may be discussed together.
I move amendment No. 232:
In page 46, subsection (2), between lines 35 and 36, to insert the following:
"(d) requiring planning authorities to acknowledge in writing the receipt of submissions or observations;”.
The purpose of the amendments is to provide that planning regulations may require a planning authority to acknowledge a submission or observation made in a planning application by a third party in writing. Many local authorities currently acknowledge submissions but this will impose a legal requirement on the authorities to do so. It will offer the security to persons that their submissions or observations will be considered by the planning authority before a decision is made. The acknowledgment will also be proof that the person made a submission or observation on the original application if they subsequently appeal a decision to An Bord Pleanála. Amendment No. 462 to section 112 provides that this acknowledgment must be included in the documents forming part of their appeal.
Amendment agreed to.
I move amendment No. 233:
In page 46, subsection (2), between lines 38 and 39, to insert the following:
"(e) requiring planning authorities to-
(i) (I) notify prescribed authorities of such proposed development or classes of development as may be prescribed, or
(II) consult with them in respect thereof,
and
(ii) give to them such documents, particulars, plans or other information in respect thereof as may be prescribed;".
Amendment agreed to.
ActingChairman
Amendments Nos. 234 and 235 are related and may be discussed together.
I move amendment No. 234:
In page 47, subsection (2), between lines 24 and 25, to insert the following:
"(k) enabling planning authorities to request any additional information in the form of statements, drawings (relating to perspectives, elevations, sections or layouts), photographs, photomontages or other visual material so as to facilitate the planning authority in its assessment of the application,”.
Amendments Nos. 234 and 235 seek to widen the information submitted with planning applications and to give planning authorities greater power to require additional information to be submitted, including various types of drawings, photographs and other visual material, to facilitate them in the assessment of the application. There may be occasions where, apart from the erection of a site notice, it may make sense to mark out the site so it is clear where it is proposed to carry out the development. These provisions would not necessarily arise in the case of each application. I want an enabling provision to enable local authorities to either seek this material by way of additional information or to require the applicant to submit information or to mark out the site as part of the initial application.
ActingChairman
The Minister would like to take amendment No. 236 in the name of Deputy Clune in this grouping. Will Deputy Dukes agree to that?
Why?
Amendment No. 236 is cognate. It seeks to include in the regulations a stipulation requiring an applicant to submit details of a waste management strategy, including the use of recycled products.
It is just about cognate.
I do not mind taking the amendment separately.
I will discuss it separately. I do not mind taking it as part of the group if it means the Minister will accept it as well as Deputy Gilmore's amendment.
Or refuse to accept them and treat them all equally.
The Minister should surprise me.
These amendments would enable the Minister to make regulations on three subjects - requiring applicants to set out siting poles, etc., to determine the spatial extent of any development, permitting authorities to request additional information in the form of statements, drawings, photographs, etc., or requiring applicants to submit waste management strategies, including the use of recycled products, that is, amendment No. 236 to which we referred. All these matters are already provided for in the regulations so there is no need to stipulate them. Setting out poles and pegs can be requested by the local authority planners as things stand at present, so we do not need a specific provision for that.
With regard to the second amendment from Deputy Gilmore, under paragraph (e) of this section, regulations can be made requiring applicants to submit any further information with respect to their application, which can include statements and drawings. That is sufficiently comprehensive. The point the Deputy is getting at is covered under paragraph (e) concerning further information.
As regards the final point in Deputy Clune's amendment No. 236, at the moment, work is ongoing with the forum for the construction industry to deal with the management of construction waste and recycling. The sub-committee is working on that subject with the forum and intends to produce its report in the summer. It would be wise to wait until we have the report before dealing with the issue in detail. It is probably more appropriate for the issue to be dealt with under the Waste Management Act rather than under planning legislation. Since all these matters are covered already - and in the latter case, they will be covered under the Waste Management Act and by the current discussions - I would ask Deputies to withdraw their amendments.
Construction and demolition activity is one of the major elements of waste production accounting for 2.7 million tonnes, according to the recent waste catalogue produced by the EPA, as opposed to 2.1 million tonnes of municipal waste. There is a need for some emphasis on this matter. I have spoken to representatives of the construction industry who think the issue should be dealt with by inclusion in planning applications or decisions. There is some room to address the issue in that way, particularly in light of the continuing housing boom. The national development plan includes major construction projects which will produce a great deal of waste at a time when the environment is under threat from such waste production. I take the Minister's point that the matter is being investigated by the forum for the construction industry which is to produce a report on it, but it should be dealt with through planning applications so we can see how individual developers intend to deal with the waste problem. Unless we stipulate that the issue must be addressed, it will not happen.
We have set targets for the construction industry concerning construction and demolition waste. There is to be a 50% reduction of the amount of waste going to landfill within five years, and an 85% reduction within a 15 year period under the Changing Our Ways initiative. The construction industry forum is discussing a voluntary industry code for construction and demolition in order to reach those targets. As the Deputy knows, there are two ways of trying to reach the targets: first, by legislation and, second, through voluntary codes and agreements undertaken by the industry concerned, as happened with Repak. It is intended to put in place a similar agreement with the construction industry to reduce C&D waste going to landfill. From that point of view it would be wise to wait and see what form that agreement takes.
I take the Deputy's point about this type of matter being included in planning. There was a time when everything was thrown into planning, including water pollution. Over the years, however, we have developed more sophisticated legislative codes to deal with specific areas, such as water pollution and recycling. I have made this point before in dealing with other amendments concerning European heritage areas, special areas of conservation or the National Monuments Act. In general, we are better off putting provisions in legislation, which are specific to the area rather than having the matter included in planning, as the Deputy is suggesting.
Local authorities may put conditions on planning permission concerning C&D waste. Some of them will probably do so increasingly when the code is in place. When targets are being met, more and more of them will stipulate this as a condition of planning, but at the moment it would be a bit premature to do so. On that basis, I would ask the Deputy to withdraw the amendment.
The last thing the Minister said is very significant. It is the case that some local authorities impose conditions of this kind. We hope more of them will do so in future. However, the whole point of Deputy Clune's amendment is to make it clear that there can be regulations for that. This does not anticipate what the forum might conclude. One must accept the reality of what happens. If one looks at any building site, in the early part of the operation there is an unending procession of trucks bringing core filling and aggregate. At the end, in cases that are properly managed, a great deal of rubble and waste of various kinds is brought off the site. One of the principal uses for recycled construction and demolition waste is core filling and aggregate. It would underpin and reinforce what we are trying to do in the Waste Management Act, to have regulations in planning law that specifically provide for the use of this material. If we get a code that is agreed with the construction industry, it would be best all round if we made it clear in law that however they arrive there - whether it is by ministerial regulation or voluntary recommended practice by the local authority - we will have these conditions in order, at least, to reduce the cost of having to take the rubbish away and recycle it. If we could shorten the circuit everybody would be better off.
I agree with Deputy Dukes. Planning is all about construction, and planning legislation is the main area with which any construction project will come into contact. We should insert something definite in the Bill to address the issue. We can have all the targets we like for every waste stream, but many of them will not be met. I have grave reservations about the operations of Repak which would be similar to the construction and demolition forum the Minister mentioned. We need to underpin targets with legislation to ensure they are reached. The targets outlined in Changing Our Ways represent a huge mountain to climb. I would strongly support positive steps to ensure the control of this waste stream by regulation.
We can become very focused on what we are doing here, but there is an entire Act which deals with all aspects of waste and that is where I would like to see this particular aspect of C&D waste dealt with. This section does not preclude the Minister from making regulations regarding waste management strategies etc. I am anxious only that we do not start trying to list under this section everything for which regulations should be made. If agreement is not reached at the end of the discussion or if it needs to be supported in the planning legislation as opposed to, or in addition to, the Waste Management Act, 1996, there is nothing here which will preclude us from doing that.
Section 33(2) states: "Without prejudice to the generality of subsection (1), regulations under this section may make provision for the following:” That means that at the end of all this when we have agreement the Minister can make regulations to provide for what the Deputy seeks here. Rather than specifically stipulating that now, it would be better to await the outcome of the ongoing discussions and on that basis decide whether it is necessary to provide for the regulations here or in the Waste Management Act, 1996, or perhaps in both places. I accept what the Deputy said. It is important that targets are reached. I am just saying that it is not necessary to have this particular stipulation here at this time.
In light of the ongoing discussions to which the Minister referred, I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 235 and 236 not moved.
Acting Chairman
Amendments Nos. 237 and 238 are related and, therefore, may be discussed together by agreement. Is that agreed? Agreed.
Are they related or are they cognate?
Acting Chairman
They are related.
I move amendment No. 237:
In page 47, between lines 24 and 25, to insert the following subsection:
"(3) Regulations under subsection (2) shall provide for notice to adjoining landowners and that the erection and display of any specified site notices which shall be legible from any place accessible to the public on or nearest the site boundary of this application.”.
This is to extend the requirements for giving notice and to tighten up some loopholes in the process of giving notice. The big improvement which was made in recent years in public notification of planning applications was the requirement for the placement of site notices. I seek to achieve three things with these two amendments. First, I seek to require an applicant for planning permission to give notice to adjoining landowners that the application is being made. It is reasonable to assume that often those who will have immediate interest in an application are landowners in the immediate vicinity. In practice many people applying for planning permission do this anyway and most planning authorities would probably advise applicants to notify the owners of adjoining properties that they are making an application.
Second, the notices should be seen from any place to which the public has access. I am thinking in particular of the kind of site, for example, which might be bounded by two roads, one being a main road and the other being a bóithrín, where the site notice is put up on the bóithrín. There have been cases where it has not always been entirely clear that the site notice is placed at a location to maximise the amount of public attention which would be drawn to it.
Third, sometimes people feel that a site notice has been in place forever and do not realise that a second or third notice has been put up in the same spot and that they are different notices. I am suggesting that there should be a requirement that the notices be dated and that there be some system of colour codes. My amendment suggests colour codes for different types or stages of notices regarding different stages of an application. Colour codes might be used, for example, if there are repeat applications or different applications on the same site. The purpose of this is to strengthen the use of the site notice, which is increasingly becoming the main way in which attention is drawn to a planning application.
I do not disagree with what the Deputy said in this regard, but in this case it is more appropriate to deal with these matters by way of regulations than putting them into a statutory framework in primary legislation. We spoke about the evolution of policy and the changes which take place over a period. When we started out on the planning and development Bills, notification involved a newspaper notice only and then it involved a notice on the site. Now we discover that even that kind of system is being abused. I agree with the principle underlying the amendments here, that the public site notice regarding planning should inform as many people as possible, but the place to do this is in the regulations rather than in primary legislation.
We are preparing new consolidated planning regulations to be put in place following the enactment of the Bill. As I indicated previously, we intend to look carefully at the rules regarding notices to ensure that they are legible and dated and that one cannot hide the fact that one is changing a planning application by putting up a notice and then putting up another one four or five weeks later, for example.
I stated either here or on Second Stage that we could benefit from a discussion specifically on this area of the regulations before they are finally drafted. It might be useful for the committee to deal in detail with this issue and some other matters regarding the draft regulations. There was a long discussion about this in the Seanad also, and the idea of coloured notices for different applications and how to make them legible was raised. It was suggested that local authorities might stipulate in their by-laws the newspapers in which the notices should be placed. It was suggested that, as happens in some local authorities, people use standard signs on which they would fill in the details in order to make the notices easily accessible to the public. Therefore, there is a range of matters related to site notices and public notification generally at which we should look, but it should be done by regulation rather than in primary legislation.
Deputies and Senators referred to this matter on Second Stage in both Houses and amendment No. 315 prevents an applicant from making an application for the same development while an appeal is before An Bord Pleanála. In a case reported in the newspapers recently, planning permission was granted by a local authority and an appeal was made to An Bord Pleanála. In the interim, a further application was made for identical planning permission for the same development and this was again approved by the local authority. An Bord Pleanála denied the original appeal but by the time it made its decision the second application had been granted by the local authority, one month had elapsed and the person involved had no right of appeal.
Amendment No. 315 is designed to eliminate such deliberate misdirection. As already stated, there are a number of courses of action we could take in respect of notices. In my opinion, however, the best way to regulate this area is through the introduction of regulations rather than making provision in primary legislation.
I welcome the Minister's offer to return to the committee prior to introducing the consolidated regulations following the enactment of the Bill. We will obviously have an opportunity to discuss this matter at that stage and, in that context, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 238 and 238a not moved.
Question proposed: "That section 33, as amended, stand part of the Bill."
Will the Minister explain the function of section 33(2)(h) which states that regulations can be made “requiring planning authorities to furnish to the Minister and to any other specified persons any specified information with respect to applications and the manner in which they have been dealt with”?
It is concerned with the compilation of statistics in respect of the number of applications and refusals, the duration of consideration of such applications etc. It is designed to allow the Minister and the CSO to obtain the relevant information.
Question put and agreed to.
SECTION 34.
I move amendment No. 239:
In page 47, subsection (1), line 34, after "it." to insert "In deciding conditions to be imposed as part of a permission the planning authority shall have regard to the Fifth Schedule to this Act. In refusing permission the planning authority shall have regard to the reasons for refusal contained in the Fourth Schedule to this Act.”.
The Fourth Schedule sets out the reasons for the refusal of permission which exclude compensation while the Fifth Schedule sets out the conditions which may be imposed on the granting of permission without compensation. Section 175 states that compensation is not payable where a refusal is based on the Fourth Schedule or where conditions are attached based on the Fifth Schedule. However, the Bill does not positively state that a planning authority, either in deciding to impose conditions on or in refusing a permission, can impose conditions which are referred to in the Fourth and Fifth Schedules.
I am advised that this is a deficiency and that it needs to be corrected. I appreciate that it is a rather legalistic point and I am sure the Minister has received advice in respect of it. However, I felt it appropriate to raise it by way of amendment.
I thank the Deputy for raising this matter. However, the amendment seeks to require that planning authorities should look to the Fifth Schedule when considering what conditions attach to a permission and look to the Fourth Schedule when considering the reasons to refuse permission. Planning authorities already give careful consideration to the reasons for refusal which are set out in the Fourth Schedule and to the conditions set out in the Fifth Schedule because these, if cited, exclude the payment of compensation. However, those reasons and conditions are listed for a specific purpose and they are not the only means by which a local authority can refuse a planning permission or attach conditions to a permission it intends to grant.
My concern about accepting the amendments is that they seem to encourage planning authorities to make their decisions solely for reasons of avoiding the payment of compensation rather than for the proper planning and development of an area. As Members are aware, local authorities, as their first reason for refusing a planning permission, particularly in respect of once-off, single house developments, state that a development will cause a road traffic hazard because compensation does not have to be paid in such cases. I am aware that in many cases the decision to refuse permission in such cases was upheld but that condition or reason was removed from it. Clearly, local authorities included it because they would not be obliged to pay compensation but that is not a good reason for doing so.
Since the coming into force of the Local Government (Planning and Development) Act, 1990, which made a number of important changes to the compensation provisions, the problems which were associated with compensation prior to that date have been greatly reduced and have almost completely disappeared. As a result, it appears that the law in this regard is working well at present. I would be reluctant to change the law as it stands, principally because it is working so well but also because it may create a bad impression in terms of planning authorities' reasons for refusing permissions or granting them with certain conditions attached. On balance, it is better to leave the section as it stands.
Section 175(1) specifically states that the citing of the reasons outlined in the Fourth and Fifth Schedules exclude compensation and that ensures that there is no gap in the legislation. Therefore, the advice Deputy Gilmore received is incorrect. I am advised that section 175(1) covers the point he raised.
Amendment, by leave, withdrawn.
Amendment No. 240 not moved.
I move amendment No. 241:
In page 47, subsection (2)(a), to delete lines 44 and 45 and substitute the following:
"(iv) where relevant, the provisions of any enactment,".
Amendment put and declared lost.
Amendment No. 242 not moved.
Sitting suspended at 4 p.m. and resumed at4.20 p.m.
I move amendment No. 243:
In page 49, subsection (4), between lines 3 and 4, to insert the following:
"(d) conditions for requiring, in any case in which the development uthorised by the permission would damage or alter the conservation value of a designated site, a record of the ecological importance of the site;”.
This amendment adds to the conditions which may be attached to the grant of a planning permission. I hope there would be few circumstances where a development would damage or alter the conservation value of a designated site. However, in the rare cases where that might arise, the planning conditions should require the keeping of a record of the ecological importance of the site concerned.
A large number of amendments to this section were tabled, all of which had one thing in common, that is the specification of conditions the planning authorities might impose on planning. About 20 or 30 of these amendments are being proposed, which are being taken separately, although they were grouped in the Seanad. There are amendments which would add 20 specific types of condition to this section and amend some which are already included. The generality of the subsection should stand and additional conditions should only be specified for good reason, particularly where there is a doubt about the planning authority's power to impose a particular condition. We cannot cover every eventuality but where a doubt about the planning authority's power to impose a condition is brought to our attention, we should do that.
Many of the amendments I am talking about were tabled in the Seanad and I said I would consider them on Report Stage. On Report Stage I accepted a number which I felt added some substance to the section. Some of these amendments are repeated here although I accepted them with modifications in the Seanad. Others were bureaucratic or not clear in their intent. We had a long and thorough discussion on them in the Seanad. Regarding not only this amendment but many of the others, I do not intend to add to the substance of the section by accepting them.
I considered this amendment on Report Stage in the Seanad as I felt it had merit. However, when we examined its intent, we discovered it might have the opposite effect. I assume that "designated site" means a European site. When we were drafting the amendment for Report Stage, I realised that the amendment could be inadvertently interpreted as giving a licence to people to apply, and local authorities to grant permission, for development which would lead to the destruction of a special area of conservation or a natural heritage area as long as they agreed to maintain an ecological record. Development is very restricted on these types of European sites for the good reason of ensuring that the ecology is not damaged. I am still concerned, as I am sure is the Deputy, that we should not do anything in the Bill which would signal that such development would be permitted and that only an ecological record need be kept. For that reason and because the amendment will end up doing the opposite to the intentions of myself and the Deputy, I ask him to withdraw it.
I wish to pursue the general point the Minister made. I accept what he said that we are about to discuss several amendments which were debated in the Seanad where he indicated a willingness to consider or modify some of them for Report Stage. While it may be unusual procedurally and I do not know if it is possible to do it, it may help us and speed up business if the Minister indicates his general disposition towards the amendments, all of which relate to the attachment of additional conditions to planning permissions, and outlines any difficulties he has with them, rather than our repeating ourselves by formally proposing them and the Minister responding. I do not know if that would help. Deputy Dukes was not present when the Minister replied by making the point that we are approaching a series of amendments relating to additional conditions attaching to applications for planning permission.
I made the point before Deputy Dukes came in that there is a group of amendments which specifies conditions for planning, that this was discussed in great detail in the Seanad and that, on Report Stage, I took on board much of the substance of a number of the amendments relating to conditions which were tabled at the time. I also made the point that there was little sense in having an exhaustive list of conditions and that the criterion we used in deciding which we might specify in the Bill was where there was a doubt about planning authorities' powers to impose that condition. If we thought there was substance to that, we included it.
Regarding amendment No. 243, I made the point that, by allowing for planning permissions in areas such as special areas of conservation subject only to the maintenance of an ecological record, we could inadvertently give a signal which encouraged development in those areas rather than discouraging it, which is our intention.
Regarding the other amendments which lay down conditions, amendment No. 244 was dealt with in the Seanad and I am not of a mind to accept it. There is a group of amendments, Nos. 245 to 250, inclusive, and Nos. 263 and 264, which could be discussed together if Deputies wish to do so. We tabled an amendment in the Seanad to deal with those and it is set out in paragraph (h).
Acting Chairman
We will go through the amendments, as agreed, but if the Minister wishes to make a few comments on some of them at this stage, that is fine. Nonetheless, we will have to go through them as set out.
If it is the wish to dispense with amendment No. 243, I am prepared to withdraw it at this stage.
Amendment, by leave, withdrawn.
I move amendment No. 244:
In page 49, subsection (4)(f), line 9, to delete “a specified period, not being less than”.
Going along the general lines of what Deputy Gilmore and the Minister said, I am happy to examine in general what we are trying to do and to see what is the mind of the Minister on the matter and not exhaustively go through a list of amendments. However, I wish to underline the concerns which motivate the series of amendments I tabled.
They are concerned with how to ensure builders conform to the conditions imposed on them and what sanctions are available to ensure they do that. Part of the problem experienced in housing developments - I am specifically concerned with housing developments - is that estates are not finished to the satisfaction of the local authority or, more importantly, to the people who live in them. In the case of large developments, which do not have to be that big, it is typical to find it is three or four years after people first move in that the development is concluded. During that time they must endure a great deal of nuisance and they frequently find that certain amenities which it would be possible to provide during that time are not provided.
Planning permission does not require matters to be dealt with in a logical sequence. Local authorities are often very slow to invoke the sanctions available to them against developers. I am sure the Minister has found as often as myself and Deputy Gilmore that when one points out to a local authority that a developer did not meet his obligations, the reply is that they are negotiating with him to try to get him to do so, that it would cost too much to go to court and get hold of the bond and that, in any case, the amount of the bond is insufficient.
I was struck by this a few months ago when looking at two specific developments, which I will not identify, where the bond the builder was asked to put up was the equivalent of £1,000 per house in a development where the selling price of the houses was to be in excess of £100,000 each. I do not accuse those builders of doing this, but I can see that there would be cases where the bond was so small in comparison to the total sale value that it would be almost worthwhile for the developers to walk away and not make any effort to fulfil their obligations.
I am concerned with finding a way of specifying the sequence in which elements of the development would be carried out so that the people who live there would have some guarantee that they would be carried out within a reasonable time and that the first people to live there would know that elements would be done in a certain sequence. I am also concerned with ensuring that the cost to the developer of not fulfilling the obligations would be high enough to hurt so that he or she would have an incentive to carry out the development in accordance with the conditions.
I focus on the housing side which is where we encounter this problem most often. If the Minister were able to say to me that he could see the point I make, that there are ways to deal with that and that he would reflect on it between now and Report Stage, I would be happy to leave it at that. As he has already kindly pointed out to me twice, I do not have huge skills in parliamentary drafting.
None of us does. I just have an advantage.
Yes. If you have it, flaunt it. I would be happy if the Minister told me that he sees the general point I am making and will look at the possibility of meeting it, rather than spend the rest of afternoon going through these matters in detail.
The situation described by the Deputy was not unusual in the past and has improved considerably. It can probably be best met by way of guidelines relating to bonding and so on. A bonding scheme is now in place which takes into account the realities of the marketplace. A number of local authorities have not undertaken this scheme but have made other arrangements, such as insurance schemes.
Section 34(4) (f) and (h) deal with sequencing and with the point raised by Deputy Hayes in his amendment. Section 34(4)(f) states that a planning permission may contain “conditions for requiring the satisfactory completion within a specified period, not being less than 2 years from the commencement of any works of the proposed development (including any roads, open spaces. . . . ), where the development includes the construction of 2 or more houses”. To be more prescriptive than that, particularly for large housing developments, would be difficult. It would not be practicable to require a development of 300 or 400 houses to be completed in two years. Paragraph (h), which was added in the Seanad, states that conditions can be imposed “for determining the sequence in which works can be carried out”. In a development of 300 houses, a local authority will have the power to grant planning permission to a developer in phases of, for example, 60 houses, each of which must be fully completed before the next phase is commenced. That meets the concerns expressed by Deputy Dukes and shared by all of us, which have often been discussed in the Houses and by local authorities throughout the country. These paragraphs meet the concerns of Deputy Dukes with regard to sequence, completions and so on.
A later section deals with enforcement and completion of estates. This section makes provision for the past record of a builder to be taken into account, which is an incentive to finish work properly. Deputy Hayes's amendment and the point made by Deputy Dukes are met by section 34(4) (f) and (h).
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 245 to 250, inclusive, and Nos. 263 and 264 may be discussed together, by agreement.
I am of a mind to accept amendments Nos. 246, 247, 249 and 250. I hope this may be helpful to Deputy Dukes. Amendments Nos. 245 and 263 are both covered in section 34(4) (h), which I referred to earlier.
I thank the Minister for that. I accept that sequencing, timing and the adequacy of guarantees are covered by these paragraphs.
I move amendment No. 245:
In page 49, subsection (4) (f), line 14, after “houses” to insert “including conditions requiring the completion of specified aspects of the development at specified stages of the development”.
Will the Minister outline his thinking on the subject matter of amendment No. 248? I accept the Minister's point that in legislation it is not desirable and probably not possible to be excessively prescriptive. However, the general point in this amendment needs to be taken into account. The Minister has referred to the reality of the market and it is with that reality that this amendment is concerned.
Amendment No. 246, proposed by Deputy Dukes, refers to adequate security. Amendment No. 248 requires the security bond to be set at a level not less "than five per cent of the estimated cost of the proposed development, or, where appropriate, five per cent of the gross projected first sale value of the proposed development, whichever is the greater". The sale price of a house in any development will always be greater than the construction cost and it would be a very foolish developer who would build something on which he expected to lose money. These matters are best decided at local authority level where the local market and the individual developments are known. This is preferable to making a blanket provision.
In recent years most local authorities have required an adequate bond and have made their own arrangements. In addition, by expressly mentioning a figure of 5%, local authorities might be prohibited from looking for a higher figure if that were necessary in the case of a specific builder who did not have a good record. For those reasons I prefer to accept the word "adequate" in amendment No. 246 rather than the specific figure in amendment No. 248 and leave matters to the discretion of local authorities.
Amendment, by leave, withdrawn.
I move amendment No. 246:
In page 49, subsection (4) (g), line 15, after “of” to insert “adequate”.
Amendment agreed to.
I move amendment No. 247:
In page 49, subsection (4) (g), line 16, after “development” to insert “including the completion of specified aspects as provided for in subsection (4)(f)”.
Amendment agreed to.
Amendment No. 248 not moved.
I move amendment No. 249:
In page 49, subsection (4) (h), line 17, after “sequence” to insert “and timing”.
Amendment agreed to.
I move amendment No. 250:
In page 49, subsection (4) (h), line 17, after “which” to insert “and the time at which”.
Amendment agreed to.
Acting Chairman
Amendments Nos. 251 and 252 are related and may be discussed together, by agreement.
I move amendment No. 251:
In page 49, subsection (4), between lines 18 and 19, to insert the following:
"(i) conditions for the maintenance or management of the proposed development (including the establishment of a company or the appointment of a person or body of persons to carry out such maintenance or management);”.
I return to the general principle of adding legal certainty to the planning authority, which I outlined earlier. This amendment will give a statutory basis to the now common planning condition that a developer should establish or appoint a management company for a development. These management companies are important, particularly for the management and care of apartment buildings and the communal parts of housing estates and will become increasingly important in the higher density housing estates and in light of the social and affordable housing elements of housing development in the future. This provision will not detract from the general obligation on authorities to take in charge finished and unfinished estates where residents request that this be done. Section 164 deals with that matter. The objective is to ensure good and prudent management of estates.
Amendment agreed to.
Amendment No. 252 not moved.
I move amendment No. 253:
In page 49, subsection (4)(j), line 25, after “roads,” to insert “including traffic calming measures,”.
This amendment would add traffic calming measures to the provisions, such as roads etc., that a planning authority may require even though they are in excess of the immediate needs of the proposed development but subject to the local authority paying for the costs of the additional works. Conditions such as this are usually applied when a new area is being opened up. I am not clear on what traffic calming measures may be required at that stage but I am prepared to accept the amendment so as to ensure a planning authority will be able to require such measures in excess of the immediate needs of the development.
Amendment agreed to.
I move amendment No. 254:
In page 49, subsection (4)(j), line 26, after “drains” to insert “, collection points for materials for recycling,”.
This is a matter on which we touched earlier. Is it agreed to?
I agreed to look at it before Report Stage.
I welcome this provision under which a local authority will pay the difference in providing provisions in excess of what is required. As the Minister and members are aware, the normal practice has been for local authorities to require a developer - frequently the developer of one house - to provide a larger water main in particular. Let me give one example. Where five or six houses were recently built along a stretch of road and where the person is of the view that any further development will require an upgrading of the water main, the county engineer will require a person to provide a four inch main which will service the existing five or six houses and, possibly, some older ones. The county engineer will argue vehemently that the additional house is the reason the larger water main is required to service the development despite the fact that the additional expense will have to be borne by the person concerned. There are other cases I can think of where a person will be required to extend by half a mile a water main to which others will be able to connect at no extra capital cost. The local authority will reasonably argue that the additional development is the reason the water main requires to be extended. It costs £10,000 to lay a four inch water main in place of a half or three quarter inch main.
This section goes some way towards dealing with the matter but it may be dealt with better by section 47 which deals with development contributions by enabling a local authority to require that a service be provided and subsequently charge others who connect to it. I understand this is not provided for.
I have been informed that that is the way the system should operate. The relevant provision is contained in section 47.
That section does not specifically provide that a local authority may place a charge on other persons connecting to a service to be paid to the person who had to bear the initial cost. In equity, this should happen. Subsection (3)(b) goes very close to what I am looking for but it is my experience that an uncharitable view may be taken in local authorities and someone connecting to an improved water main will argue that there is no provision under which the local authority can seek a development contribution, some of which will be returned to the person who had to meet the cost of providing the service. In equity, there should be such a provision.
What the Deputy is looking for is a system akin to the one in operation in the ESB under which a charge is placed on householders connecting to a transformer and a refund made to the householder who had to carry the initial cost.
Some local authorities operate such a system but probably without statutory backing.
We are back to section 34, page 49——
I also have notes on that section but, although it goes a long way towards dealing with the matter, it does not cover the point I am making. What concerns me is the willingness of local authorities to do it.
We are ensuring that a local authority will only be able to charge a person for what he or she needs. The matter the Deputy raised is being dealt with in this Bill, it is not dealt with in previous legislation. We are trying to make the system of charges, contributions and levies much more transparent. I will think about what the Deputy said to ensure the matter is covered. He is concerned that refunds will not be paid under the new system.
Where a service is operating at full capacity, the sanitary services engineer will inform the unfortunate eighth householder that he or she will either have to bore a new well or meet the cost of upgrading the water supply. The local authority engineer may take an uncharitable view and charge the full amount. It may be possible to address that matter in section 47 which deals with development contributions. I do not see how one can go much further in section 34(4)(j). I will be satisfied if the Minister states that he will look at the matter.
Acting Chairman
We can return to the matter when we come to discuss the relevant section.
The Minister will then have a solution.
I will be ready for the Deputy at that stage.
Amendment, by leave, withdrawn.
I move amendment No. 255:
In page 49, subsection (4)(l), line 39, to delete “the” and substitute “appropriate”.
I am prepared to accept the amendment.
Amendment agreed to.
I move amendment No. 256:
In page 49, subsection (4), between lines 41 and 42, to insert the following:
"(m) conditions for requiring that the naming of the development is in keeping with local traditions, heritage and place names;
(n) where the application relates to a Gaeltacht, conditions for requiring that linguistic criteria relevant to the application are met;”.
Amendment put and declared lost.
I move amendment No. 257:
In page 49, subsection (4)(m), line 47, after “social” to insert “, aesthetic”.
Paragraph (m) sets out a lengthy list of all the proper considerations but it lacks the aesthetic.
We had a long discussion on the aesthetics of this last year in the context of the Planning and Development Act and the national inventory of architectural heritage. Adding the word "aesthetic" would conflict with the definitions in other Acts and, therefore, I cannot accept the amendment. That is in addition to a general reservation I have about the word "aesthetic" which we discussed previously at length.
I would have been happier if the Minister said that artistic comprehends the aesthetic.
Amendment, by leave, withdrawn.
I move amendment No. 258:
In page 50, subsection (4)(m), between lines 5 and 6, to insert the following:
"(iii) where appropriate, that the planning authority may specify the correct re-instatement of any existing exterior or interior feature and that any such work may be specified by means of a method statement in the interest of architectural conservation which shall be agreed between the applicant and the planning authority prior to the commencement of any such works;".
I would like to make a suggestion in light of general comments the Minister made about conditions. I would be quite happy to take amendments Nos. 258 to 272, all of which are in my name and all of which relate to additional conditions in planning permissions. Much of what I am going to say, apart from some of the detail, will be fairly common.
Acting Chairman
We cannot do so as that would cause complications. If the Deputy wishes, he can formally move the amendments and make his general comments at this stage. However, we will have to formally——
I am in your hands, Acting Chairman, but I was trying to be helpful.
With the indulgence of the Chair, if the Deputy wishes I will go through some of these amendments and explain why we are not accepting them. The Deputy can then decide which amendments he wishes to speak on at length.
I am quite happy to do so.
Amendments Nos. 258 to 272, inclusive, are related. Amendment No. 258 is one of the amendments I accepted in revised form in the Seanad. Paragraph (m) on page 50 refers to the reinstatement of any element in a manner specified by the authority.
I accept that.
Amendment, by leave, withdrawn.
I move amendment No. 259:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions determining that it will grant permission for part of an application and that it will refuse permission for another part of an application on the same land submitted as part of an application;".
This amendment is not necessary because what the Deputy is suggesting is already done by a planning authority. It is not an all or nothing process so it does not need to be specified. An authority can grant permission for part of a development and refuse another part or parts, and we mentioned an example of such a case. The objective of this amendment is already catered for.
Acting Chairman
How stands the amendment?
Perhaps if the Minister goes through the amendments I will come back.
Amendment No. 260 would permit planning authorities to regulate the conditions regarding when, how and what public infrastructure may be used by a developer. The conditions mention roads and, presumably, that is the Deputy's major concern. Planning authorities already regulate the amount of vehicles which may use the roads per day, particularly with regard to the hours of operation for the development where it is likely to affect the surrounding area. These conditions are already permissible and used by local authorities.
Amendments Nos. 261 and 269 are related and have the same intent, namely, to permit the planning authority to grant permission, subject to a condition sterilising the land to protect an amenity, the rural character of an area or a heritage site. Presumably, that will be done by requiring a sterilisation agreement under section 46 of the Bill which would be signed by the owner of the land. We know what a sterilisation agreement is. I would be reluctant to provide for agreements to sterilise land, except where necessary for the control of a development which is very detrimental to proper planning. The kind of example I would give would be speculative ribbon development on agricultural land.
There are sufficient controls to prevent improper development in the areas suggested by the Deputy. For example, section 24(4)(a) provides that planning authorities can regulate the use of any neighbouring land under the control of the applicant where necessary for the purposes of the development. In addition, where planning applications are made for an area which a development plan has designated as an amenity or whatever, the application must be considered in the context of the designation in the development plan. Comprehensive protection is also given to protected structures and other heritage sites in this Bill and other legislation. For that reason I am not prepared to accept these amendments.
Amendment No. 262 is related to amendments Nos. 354, 362, 366 and 370. Amendment No. 262 would permit a planning authority to impose user charges for its infrastructure. Development contributions, as they operate and as they will apply under the new development contributions scheme under section 47, relate to the capital costs of providing infrastructure. Refurbishment, upgrading and replacement costs can be included in the development contribution scheme under this section as such works can involve major capital investment and enable additional development. While I sympathise with the intent of imposing a user charge or an ongoing charge for the use of infrastructure, I do not think this is the place to deal with that issue.
The purpose of the development contribution under this section is to make a contribution towards the capital costs of providing infrastructure to facilitate development. If the development is such as to warrant the construction of special infrastructure, such as a road interchange, a special contribution can be levied under section 47. The Deputy would agree that the planning Acts should not be just used to introduce user charges generally.
We can discuss amendment No. 354 later. As regards amendment No. 264, there is a legal requirement to complete a development in accordance with the permission. This condition would add nothing to existing law because enforcement procedures would still have to be followed to enforce the condition. In the case of conditions which are not observed, the enforcement powers of planning authorities have been greatly improved in this legislation and that should meet the Deputy's concerns.
Amendments Nos. 265 and 270 would require a further application to be made after five years to review the adequacy of conditions where a development has a major effect on amenities or public infrastructure. They would also require a further application to be made to review conditions after five years where permission is granted for longer than five years. The Deputy may wish to discuss these amendments later, but we are back to the issue of providing for certainty and so on. From that point of view I cannot agree to these amendments. Certainty is important for developers and planning authorities which should only be able to amend permissions in very special cases. That is why there is a five year period to permit development to be completed. The importance of certainty is particularly clear in relation to largescale developments, the only kind of development for which temporary permissions are granted.
Additional conditions can be imposed on an existing development under section 43 of the Bill but that has certain compensation implications. Where the additional conditions restrict the operation of the business or whatever, the person operating the business is entitled to be compensated for any loss. Planning authorities are not entitled to change rules as they desire. Therefore, I cannot accept this amendment.
Amendment No. 266 has been accepted and paragraph (n) on page 50 specifies the conditions for regulating the hours and days. Amendment No. 267, particularly the second part of the amendment, is already provided for expressly in section 38(2). Therefore, this amendment is unnecessary.
On amendment No. 268, under paragraph (c) planning authorities can already require applicants to take measures at their own expense to limit emissions, noise or vibration from a development. That provides adequate powers for the planning authority in the matter and, therefore, there is no need for that amendment.
The same would apply to amendment No. 271. Monitoring of activities, for example, regarding pollution control is done under different legislation with a zone fee paying structure where relevant. The general point, which I have made before and repeat here, is that that is the way to handle such monitoring. One should keep it to the specific legislation which is in place for it.
Amendment No. 272 in the name of Deputy Gilmore would permit the planning authority to require the submission of a mobility plan to service a development and the payment of contributions for public transport. Mobility for persons with disabilities is dealt with by the building regulations. If what we are talking about here is transport plans where a development would have a major effect on transportation in the area, this information should be required as part of the decision making process and not sought at the stage of granting permission.
With regard to development contributions, these are now payable under a scheme made under section 47 and contributions can be required for local authority facilities and infrastructure for public transport. Therefore, we have gone some way to meeting that.
On amendment No. 259, the Minister stated that it is already possible to do that. I accept that and, therefore, withdraw the amendment. He also indicated in his reply that it is already permissible to do what amendment No. 260 seeks to do and I accept that is the case.
Amendment, by leave, withdrawn.
Amendment No. 260 not moved.
Acting Chairman
Amendment No. 261 is in the name of Deputy Gilmore. Amendment No. 269 is related.
I move amendment No. 261:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions requiring the sterilisation of land as part of a grant of permission further to the implementation of an objective in a Development Plan in order to provide for a right of way, or to protect an amenity area, a listed view or prospect, the setting of a listed building or structure or of an architectural conservation area and the preservation of the rural character of an area;”.
There is a slight difference in what I am attempting to do here from that to which the Minister responded. We are all familiar with sterilisation agreements. This amendment seeks to allow the planning authority to enforce the sterilisation of land for particular purposes, which are identified in the amendment, that is, for the preservation of a right of way, or to protect an amenity area or a listed view or prospect.
At present one of the difficulties is that sterilisation is only possible by agreement. The Minister should bear in mind, lest it is considered that this is a draconian proposal, that this is a condition which would attach to a planning permission. If the planning authority considers that the grant of permission for a particular type of development would, by virtue of that development, require a sterilisation of particular portions of the site to protect a right of way, a particular amenity or whatever, it is not clear to me that the planning authority has the power to do that or to attach that by way of a condition other than by way of a sterilisation agreement, in which case of course it would take two to tango.
While with a sterilisation agreement it clearly takes two to tango, it is an unequal tango. If it is imposed by the local authority as a condition, one has two choices, one can accept the condition or forget about the planning permission. It is a fairly strong power of the local authority.
In the event that a sterilisation condition is applied, is there a limit to the length of time for which that will remain in force? In practical terms, the local authority is free to change its mind at any time and decide to lift the sterilisation. If that is the case, is there any justification for attaching some conditions to the making of sterilisation orders? I ask that question because there are cases where sterilisations last a long time and where they become less relevant with the passage of time, and because it seems to sit rather oddly with the provisions of this Bill that there can be an indefinite sterilisation where on the other hand we are providing that a zoning will last, if it is not used, only for as long as the development plan is in operation and will subsequently return to square one. Theoretically this Bill will mean that a zoning for a particular kind of development will last for six years. At that stage the matter can be reviewed and a completely different decision could be made the second time. Therefore, land which had been zoned for agricultural purposes under one development plan could be zoned for residential or industrial purposes in the following plan. I am not arguing against that provision, which is a sensible one, but to state then that sterilisation must last forever except at the discretion of the local authority seems to cut across it. It does not seem to sit well with it.
The first thing which should be remembered about all sterilisation agreements is that they are signed on the basis that planning permission will be granted where it would not normally be granted. While I accept what Deputy Dukes stated, that it is perhaps an uneven relationship, it is not exactly getting nothing for nothing either. The person, as Deputy Dukes stated, knows that he or she will not get planning permission if there is not a sterilisation agreement but he or she does get something as a result of that. That is an important point.
Second, they can be altered by mutual agreement. Deputy Dukes's point was that they are generally in place as long as both parties decide that they will remain so. Neither the landowner nor the local authority can decide that it will unilaterally break that but, on the basis that the circumstances of a local authority change and it may decide to zone land which is already sterilised because the town has grown as far as it is likely to grow, there would be no great objection from the landowner to that type of change.
On the question raised by Deputy Dukes on the lifetime of these, in some senses zoning or an attempted zoning can change the circumstances. They do not last ad infinitum. There is usually a reason for the sterilisation and the restriction in the first place. There is no incongruity between the zoning lasting six years or the lifetime of a development plan, and a sterilisation agreement lasting longer. There is no real connection between the two because of what I said at the outset about planning permission being granted on the basis of exceptional circumstances. One is making a decision that affects the value of land and so on and this also relates to property and constitutional rights. Therefore, local authorities must be very careful about how they use sterilisation agreements.
Deputy Gilmore was talking in terms of the local authority introducing unilaterally sterilisation to property. In some respects, local authorities have that right without formally, informally or otherwise deciding they will not grant planning permission in a particular area for a particular reason. There must be two involved if there is to be a sterilisation agreement. If a local authority decides it will formally sterilise land, which it cannot do on its own, it must do it through planning, zoning and so on. As a result, compensation may have to be paid in somecases.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 262 will be discussed together with amendments Nos. 354, 362, 366 and 370.
I move amendment No. 262:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions requiring an applicant to commit a subsequent user to make an annual financial contribution to the local authorityconcerned for the cost of the wear and tear impact the development may impose on public infrastructure within the functional area of the local authority or local authorities concerned;this contribution may be reviewed every 3 years following publicnotices as required under section 33 of this Act for applications in order to facilitate public consultation;”.
There is a case for considering the issue of user charges to which the Minister referred. I appreciate the distinction being made here. At the moment the planning authority has the right to impose conditions for a levy or contribution of some kind towards the provision of infrastructure. Very often a very small development can be asked for a contribution which can be quite disproportionate to its use of the infrastructure, whereas a very substantial development, which in the long-term will have quite an impact on roads, services and so on, makes a once-off contribution towards the initial provision. One can have a case, for example, where very heavy industry or commercial development of some kind can put quite a degree of pressure on roads, in particular, water and other services and apart from the once-off contribution, there is no further charge by reference to the fact that it is obtaining planning permission.
A case can be made that there is a contribution by way of payment of commercial and industrial rates but there is no way of measuring or relaying it to the granting of permission in the first place. Very often the impact of a significant development may not relate to the provision of the facility but to its use. I am thinking in terms of where there is already a good road in the area. In this case the provision of a new road does not arise and is not likely to arise for a considerable time, whereas the issue of the use of the existing road does arise.
We are into the era of the polluter pays and payment for the use of resources. In this case we are talking about significant use of resources. We should consider whether the planning authority should be enabled to make some an ongoing charge where it can show that the effect of the development on the provision of services relates more to the ongoing maintenance of those services and the ongoing use of them than it does to the initial provision of them.
I take a position on this similar to the Minister's position on other issues. I do not think this Bill is the place to provide for user charges. I can think of a number of developments where capital contributions are required but where they can be renewed at intervals. We will be referring to this later because the Minister has tabled a substantial amendment in relation to quarrying operations. This is one example of what Deputy Gilmore has been referring to. When a planning permission is granted for a quarrying operation, it is typical that the developer in some cases is required to pay a fairly substantial capital charge which takes account of the fact that the effect on the local road infrastructure will be hefty. It is also typical in those cases that the permission is granted for five years, that the whole issue is reviewed in a further five years after which a further capital contribution is required.
While I agree with Deputy Gilmore that there is a need to consider making user charges, I do not think we should consider this just in the context of a planning Bill. There is a more general argument and consideration to be had about those charges. There are many other sources of wear and tear on public infrastructure that are not captured by dealing just with current planning applications. There is the effect of all the planning applications granted in the past in that area which are giving rise to that kind of demand, whether for water, waste disposal or roads. The question of user charges is too broad to be captured properly in a Bill such as this. There is a significant difference between the kind of capital contributions in relation to planning applications and the more general question of ongoing user charges. I believe there are cases where the capital contributions required are not high enough. These are inadequate, particularly in relation to heavier developments. However, this is a different question from ongoing user charges.
I agree with Deputy Dukes's point in relation to the general principle of user charges and so on. I welcome any support I receive in relation to these charges.
To reiterate what I said previously in relation to this, the purpose of the development contributions is to make a contribution towards the capital cost of providing infrastructure to facilitate a development. It is very specific and it is appropriate that that provision should be included in the Bill. Section 47 provides that a special contribution be levied where a special infrastructure has to be put in place. We have seen such examples of road interchanges and so on.
I agree with Deputy Gilmore that in the past smaller developments seemed to pay a disproportionate charge to those levied on large development. This general point is important and it is one of the reasons we are introducing more transparency to the system of charges. No one knew the basis on which local authorities levied these charges. Since I became Minister for the Environment and Local Government, I received a large bill from a certain local authority in relation to a development. The reason given for the local authority seeking a large contribution to road improvements was that a particular development was going to take place for which it had given planning permission. When I asked what charges it levied for roads infrastructure it replied that it had not levied any charges for roads facilities and infrastructure to facilitate the development on the basis that it had heard that An Bord Pleanála threw out and greatly reduced the roads levies that other local authorities imposed on various developments and that in view of this, it did not consider it to be worth its while to impose charges. I will not say what my reaction was, but the local authority eventually got a substantial contribution to the roads infrastructure as a result of me telling it that I would not provide roads for a private development and that if it wanted this kind of private development, rates income from it and so on, it would have to pay for it.
That is not a satisfactory way of doing business, which is why it is important that capital costs arising as a result of developments, big or small, should be charged. We should get those contributions and it should be as transparent as possible. People should know when they are making a planning application that a scheme is in place and it will cost so many thousands or hundreds of thousands of pounds as part of the overall development cost to provide this kind of facility. The important principle is that this will be transparent.
On the point of ongoing as opposed to user charges, refurbishment and upgrading will also be included in the capital contribution for the first time. That will also be clearly laid out. The Bill goes as far as possible on the issue of capital contributions. The question of user charges should probably be more appropriate in other legislation.
Amendment, by leave, withdrawn.
Amendments Nos. 263 and 264 not moved.
Acting Chairman
Amendments Nos. 265 and 270 are related and both may be taken together by agreement.
I move amendment No. 265:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"conditions requiring a further application after 5 years in order to enable it to review the adequacy of conditions particularly for a development which has a significant impact on the amenities of an area and/or on the public infrastructure of an area;".
The Minister says that when planning permission is granted there should be certainty. These amendments seek to give local authorities flexibility where they impose conditions and where development will have a significant impact on local amenities and local environment and may take time to complete. One of the controls they may wish to exercise is to put a lifetime requirement on the conditions. One would be that the developer would have to apply for a renewal of the condition or a review of the way in which it was being applied.
One of the problems that has arisen, especially with regard to large developments, is where planning permission is granted subject to conditions. In some cases the conditions are implemented with varying degrees of thoroughness. A requirement on the applicant to come back to the planning authority for a subsequent approval on the conditions could be usefully used by the planning authority to ensure that the conditions are complied with. I do not suggest we concern ourselves with cases where permission is granted and then withdrawn. The requirement to go back to the planning authority in connection with the implementation of the conditions, which in turn would affect the remainder of the development that has not been completed, would be a useful control over developers. Planning authorities should be given the flexibility to enable them to decide to use it.
I see what the Deputy is trying to achieve here, but the essential point I made previously is still valid. The principle of certainty is very important, not just for the developers but also for the planning authority. Additional conditions may already be imposed on an existing development under section 43, but as I advised earlier, that has compensation implications. If those additional conditions restricted business, for example, the hours of business, the person operating the business would be entitled to compensation for any loss. The failure to complete developments is better addressed in other provisions, such as enforcement.
I presume the Deputy is concerned with developers who have not completed their development and do not appear to have any desire to completethem within the required timescale. That would be a matter for enforcement and is better dealt with there rather than by the route proposed here, which could lead to compensation claims and so on.
Amendment, by leave, withdrawn.
I move amendment No. 266:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions determining the hours and days in which a business use may operate in the interest of the environment of an area;”.
I accept this is already provided for under paragraph (n).
Amendment, by leave, withdrawn.
I move amendment No. 267:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions requiring that land, a building or structure may not be sub-divided to permit one or more uses and the planning authority in permitting a particular use may restrict a particular use by condition to all or part of the land, a particular building or structure involved in the application as it determines to be appropriate;”.
Amendment, by leave, withdrawn.
I move amendment No. 268:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions requiring an applicant to provide measures to mitigate the impact of a development on neighbouring dwellings or structures at the applicant's expense in relation to noise insulation, for example by double glazing of windows;".
The Minister has said the Bill already provides for the attachment of conditions which would require, for example, a developer to mitigate noise emission. This amendment is concerned with attaching conditions to a permission which would require the developer effectively to pay for the mitigation measures which might be required in adjoining properties. I became aware of a development of a block of offices adjacent to a small group of houses. Among the impacts the office development was going to have on the houses was an obstruction of view. The planning authority told the residents they had no entitlement to a view and, therefore, nothing could be done about it. The development was going to impact adversely on the houses in two otherrespects. First, television reception would be badly affected. The residents had a communal aerial but they would now be required to get cable television. Second, the development would impact on sunlight.
In this development, householders ended up brokering a compensation deal with the developer which included payment of some money for the loss of the view, the loss of sunlight etc. and the developer was to pay for the installation of cable television. I am aware that deals of that kind are made periodically but it would be preferable for that to occur through the formal planning process rather than through a private arrangement between developers and householders. Where there is clearly a case that a development involves some loss to adjoining properties, it could be made a condition of planning that the cost of undoing the damage caused by the development should be met by the developer. I appreciate that the circumstances in which this would arise would obviously have to be controlled.
In regard to issues such as noise mitigation, it is ironic that the planning authority can impose conditions on the developer to reduce noise which may well end up costing a considerable amount in terms of plant and the insulation of the premises in question. A simpler solution might be to pay for the installation of double glazing in the half dozen adjoining properties. I am simply saying that that flexibility should exist and that the planning authorities should be enabled to attach some conditions in regard to the impact of some developments.
I can see what the Deputy is getting at but the difficulty I see in all of this is that once the local authority would impose a particular condition, it would then be responsible for enforcing and policing it. In many cases, I could envisage the local authority ending up as a referee in a dispute between neighbours or, worse, being sued itself for not enforcing a condition which it imposed on a planning application. I could see the local authority paying for the neighbours' double glazing itself although I take the Deputy's point in regard to issues such as noise, emissions etc. Another instance that comes to mind is that somebody might start up an operation which uses a lot of water and all the neighbours' wells could dry up as a result of that.
If noise levels will pose a nuisance, the solution is for a local authority to refuse permission for a development or to require the developer to limit noise emissions through planning conditions. I could envisage local authorities becoming involved in rows about whether double glazing was sufficient. If this provision were included in the legislation, I think everyone would put in a claim for something or other, given the current culture. If 100 houses were built in a particular area, I could see everyone who lived in the area prior to the development occurring claiming from the builder or the local authority in regard to the extra noise levels caused by cars, the emissions from the cars etc. It would be more appropriate for a local authority to use its current powers to either refuse a planning permission or to impose conditions which would mitigate the undesirable effects of a development. At least the local authority could then pursue the developers if they failed to meet the conditions imposed. I accept the Deputy's point that every planning permission granted has some effect on the environment. If we were to go down the route suggested by the Deputy, everyone would end up pursuing the local authority at the end of the day and local authorities already have sufficient problems.
Amendment, by leave, withdrawn.
Amendment Nos. 269 and 270 not moved.
I move amendment No. 271:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) in the event of a condition relating to the monitoring of a continuous activity such as monitoring for noise conditions entitling the planning authorities to recover the cost of any monitoring it does in relation to a particular grant of permission from the applicant on an annual basis throughout the life of the permission;”.
This amendment is related to an earlier one in regard to the payment of ongoing costs. When the Minister spoke earlier, he stated that the issue of noise monitoring in particular is dealt with under other legislation. While that is true, it is very unsatisfactory. One of the most frequent complaints I receive relates to noise impact and the inadequacy of noise monitoring. If a development becomes very noisy and a complaint is made about that, the facilities and resources which are available for monitoring noise pollution are very limited. We do not yet have any official standards in this country and are still using UK standards which, arguably, are not appropriate here. We are using decibel limits in an absolute way without taking account of variations in noise levels. Although it is not strictly a planning issue, I recall an instance in regard to a road scheme where noise impact was taken as an average although everyone accepted that at particular times of the day and in the middle of the night - the road is along the route to a major port - convoys of trucks resulted in a far higher noise level than the 268 decibel limit at which noise abatement measures are justified. People were effectively woken up at night by the noise.
There is a huge problem here in regard to the monitoring of noise and the unsatisfactory manner in which that is carried out. In this amendment, I am seeking to make it clear that in regard to the granting of planning permissions for new developments which would give rise to noise pollution, a requirement would be imposed on the planning or local authority to monitor noise on a continuous basis and that the planning authority would have the power to make some charge for the costs incurred in that monitoring. It would be highly desirable for that to happen.
I take the Deputy's point in regard to the monitoring of a continuous activity. We are talking here in terms of the life of the permission which is a five year one. I will consider this issue again prior to Report Stage. As the Deputy acknowledged, noise levels and the monitoring of same can prove very difficult. I will reconsider the costs involved in monitoring such activities and will come back to the Deputy on Report Stage, although I cannot guarantee anything at this stage.
Amendment, by leave, withdrawn.
I move amendment No. 272:
In page 50, subsection (4), between lines 5 and 6, to insert the following:
"(n) conditions requiring the submission by an applicant of a mobility plan to service a development and may require a contribution towards the provision of public transport services or additional public transport infrastructure which would service this development;”.
Amendment, by leave, withdrawn.
I move amendment No. 273:
In page 50, between lines 11 and 12 to insert the following subsection:
"(6)(a) In the event of the imposition of planning conditions requiring the applicant to agree the details of a condition with the planning authority the applicant shall be obliged to notify the public as required under section 33 in order to facilitate public consultation.
(b) Should the details relate to the construction or operation of shared infrastructure with neighbouring property owners the local planning authority shall be obliged to notify these neighbouring property owners and anybody who previously made submissions or observations to the local planning authority who shall have one month in which to make observations or submissions to the planning authority before a decision is made on the acceptability of the proposal by the applicant.
(c) The planning authority shall require that all conditions requiring agreement between the applicant and the authority shall be determined in writing and a copy thereof placed on the public file in the local planning office to facilitate public information and enforcement.”.
This is another area which is causing great difficulty. This amendment relates to cases where a planning authority imposes a condition on a planning permission, whereby subsequent to the grant of planning permission certain agreements will be made between the developer and the local authority. These may often relate to road layout, technical matters, traffic management, public open space and those where a standard condition is set down that prior to the commencement of development, the applicant shall agree with the authority on X, Y or Z. Often the matters which have to be agreed between the developer and the planning authority are significant and are almost planning applications in their own right.
Public access to this information is virtually excluded. I know of a number of major developments where car parking and traffic matters etc. were left for subsequent agreement between the developer and the planning authority. The impact of these agreements, for example, relating to car parking, can be serious, yet it is almost taken out of the formal planning process and becomes the subject of a side agreement between the developer and the planning authority.
We need to distinguish between technical and engineering matters relating to sewerage etc. which are obviously appropriate for agreement by condition between the developer and the planning authority and matters of wider public concern, for which a process is necessary. There should be a process of notification so there is public input. There should also be an involvement where there are shared amenities with neighbouring properties. This amendment is one way of dealing with this problem although there may be other ways. It is becoming more of an issue. People find something is happening in relation to a development and when they check the planning permission, it states it will be agreed between the developer and the local authority. In some cases, the agreement never happens. Where it does, the public or other interests are not involved. This area needs to be dealt with in this legislation.
I would not favour another full public consultation process on details of a planning application after it has been granted. Deputy Gilmore is right that certain matters need to be looked at. It was intended that allowing conditions which are the subject of side agreement would apply to minor matters rather than the major ones mentioned by the Deputy. He is right that there has been a tendency in the past five or seven years for issues to become more substantial than originally intended. There is a number of ways we could deal with this, one of which would be the issuing of tighter guidelines to local authorities. To be fair to Deputy Gilmore, perhaps the best thing we could do is look at this section again to make it clear that we are talking about relatively minor matters rather than those to which he referred. We may tighten the wording of this section to make that clear. Perhaps when that is done, if it is necessary, we will clarify it further in guidelines. The Deputy made his point well and we will look at tightening the wording of this section to reflect his argument. I ask the Deputy to withdraw the amendment and we will look at it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 274 not moved.
I move amendment No. 275:
In page 50, subsection (6)(a)(ii), line 28, after “relates” to insert “and should the development concerned be situated in a zoned amenity area or related to a protected structure or situated in an architectural conservation area the notice shall be sent to the prescribed bodies as part of the consultation process”.
This amendment proposes that notice of an application relating to development in a zoned amenity area or a protected structure or situated in an architectural conservation area, should be sent to the prescribed bodies as part of the consultation process.
The point the Deputy is trying to cover in this amendment is probably already adequately covered. He is proposing that notice of a material contravention procedure should be sent to prescribed bodies where the development is a zoned amenity area or architectural conservation area or would affect a protected structure. The relevant prescribed bodies will have been notified on the initial application where appropriate. They will have been notified where the application has come in and where the local authority proposes to materially contravene their development plan. If they have made a submission on the application, it will be required that they be notified of the material contravention under paragraph (a)(ii). They are already subject to notification on the original application and it is not necessary to notify them again.
Amendment, by leave, withdrawn.
Acting Chairman
It is now 6 p.m. and, in accordance with our earlier agreement, I will adjourn the meeting. I thank the Minister and his officials and the committee. We dealt with 86 amendments today, which represents a good day's work. We will resume our deliberations on the Bill on 10 May at 2 p.m.
We may have to discuss meetings. There will be increasing pressures in obtaining rooms for committees when the House resumes so we need to set a date for completion of our discussions on the Bill as quickly as possible.
The Select Committee adjourned at 6.01 p.m.