Planning and Development Bill, 1999 [Seanad]: Committee Stage (Resumed).
SECTION 34.
I move amendment No. 276:
In page 50, subsection (6)(a)(iii), lines 31 and 32, to delete “3 weeks” and substitute “8 weeks”.
This amendment concerns the period allowed for the making of submissions in the case of a material contravention of a development plan. The Bill proposes a period of three weeks within which members of the public or any interested parties could make submissions or observations to the planning authority concerning a proposed material contravention. I propose this period should be increased to eight weeks. It is probably fair to say that where development plans are reviewed at regular intervals - the Bill proposes this be done at regular six yearly intervals - the circumstances in which material contraventions arise should, therefore, be limited. However, many of the material contraventions which arise are often for significant developments. There is already a procedure whereby the draft development plan is on public display for a period of 12 weeks, yet it is proposed that material contravention of a development plan, which can often involve a significant development, be displayed for a period of just three weeks. I believe a three week period is too short and I am asking the Minister to agree to increase it to eight weeks.
As Deputy Gilmore said, the amendment would have the effect of providing eight weeks for making submissions in relation to a proposed material contravention. It is worth remembering that a material contravention usually arises after a two month period in which a planning application may have been considered by the local authority. Therefore, we are talking in terms of eight weeks, plus another three weeks, in relation to the material contravention. I said earlier in relation to the periods for the development plan that I would try to co-ordinate the number of weeks between the various stages. In that context, I am willing to have a look at this issue before Report Stage. Members will recall that reference was made to the development plan and the different periods of time it is on public display, in preparation and so on. I am willing to consider this issue again to try to get as much uniformity as possible. The current period is fairly long-standing and has not given rise to any great difficulties so far. However, in the spirit of the agreement we had in relation to other timescales, I will look at the issue for Report Stage to try to co-ordinate it with the other public consultation periods.
Will the Minister give us an assurance that there will be an increased allocation for staff in planning offices? This might solve the problem of material contraventions which mainly arise where the draft development plan is a long way behind time. Even when companies have adopted their county development plan, town plans must be drawn up for the various towns. In my county, approximately ten or 12 towns must adopt plans. Often there are not sufficient staff to do the advance planning on those town plans. Legitimate applications are submitted and there is no way of dealing with them except through a material contravention process. Given that the planners would consider it to be suitable development which would be in the next town plan when adopted, if the work is not yet done on the town plan, it has to go to material contravention.
The problem would be solved by the elimination of material contravention which should not be necessary within a five year period. Only in exceptional circumstances should a material contravention come before the council. The fewer of these that come before local authorities in the present climate the better for all concerned. A material contravention is a legitimate matter which is proposed by officials where the plan is not up to date. However, the general public and the media might think that councillors who vote for material contraventions are doing so for other motives which are unrelated to the issue of proceeding with proper planning and development. I contend that if there were sufficient staff in the planning offices to keep the development plans up to date in all instances - this would include plans for towns as well as the county development plan - there would probably be no necessity for material contraventions. This would get over the difficulty referred to by Deputy Gilmore in requesting the timescale for public submissions to be increased from three weeks to eight weeks.
I agree with the Deputy that the less need there is to resort to material contraventions the better. There are two reasons for material contraventions. One applies if a development plan is not reviewed within the statutory time period and the application became out of date and so on. The other instance is where they are used fairly extensively by officials where members put in section 4 motions for individual planning applications and they automatically converted them to material contraventions. If members do not exercise the right to put down section 4 motions, there would probably be fewer material contraventions. Under the Bill there is a statutory timeframe within which a development plan must be reviewed, renewed and put in place, starting at the end of year four and the beginning of year five. I anticipate that the need for material contraventions will be significantly lower than it is at present. Nevertheless, it would not be wise to remove totally the power for material contravention.
The Deputy raised the matter of local authority resources. Local authorities were asked two years ago the level of resources and personnel needed in their planning departments. All reasonable requests submitted by local authorities were sanctioned by the Department. It is not a question of the resources not being available because the Department stated an authority could not have £X for wages or other purposes. There is, however, a problem in local authorities of which all Deputies are aware - it is becoming increasingly difficult to hold onto planning staff because they are attracted into the private sector by higher wages. There will be a need for further increases in staff levels once this Bill is in place. We are aware of that and have discussed the matter with both An Bord Pleanála and the local authorities. From the point of view of the Department, the resources have been made available and will continue to be so. We are conscious of the validity of the Deputy's point.
The Minister has indicated a willingness to look at the suggestion before Report Stage as part of the alignment of the periods of time for consideration of development plan issues.
I cannot let go unchallenged the argument that if there were no section 4 motions there would be fewer material contraventions. Galway County Council has not granted one section 4 motion in the last two years but there has been a great increase in the number of material contraventions because, although the county development plan has been adopted, the Athenry, Tuam, Loughrea and other town plans were not adopted and all of those towns are now expanding beyond the previous development plan. Material contraventions were deemed necessary by the officials because they did not have the time to wait for the council to adopt the development plans. I would be surprised if the local authority did not respond to the Minister's request but the reason for any delay was the lack of planning personnel to ensure town plans were ready for adoption simultaneously with the county development plan.
Amendment, by leave, withdrawn.
I move amendment No. 277:
In page 51, subsection (7)(a)(i), lines 27 and 28, after “sufficient,” to insert “save that in a local electoral area where the total number of members who stand elected to the authority for that area is 3, the notice shall be signed by 2 members,”.
This amendment seeks to resolve a doubt. I am in dispute with my colleagues about the need for this. The text of section 34(7)(a)(i) means that in an electoral area which returns only three members, the signatures of the three members would be required on the necessary certificate. It could also mean the signatures of two members. Upon first inspection, three quarters of three is two and a quarter and if that is rounded down to the nearest whole number, it is two. It may be too mechanistic a reading of the provision but in an electoral district where there are only three members, one member could ensure that no application of this kind is ever made. There might be two members representing parties and one independent. The way this is written it appears that the agreement of all three people is required, unlike in four or five seat constituencies where the agreement of all members is not necessary.
My understanding is that the new local government Bill will raise the required number of signatures for section 4 motions to five. Does this have to be adapted to take account of that?
What happens in a three seat constituency?
The signatories had to be elected within the county electoral area in which the section 4 motion was being moved. Was it not the case that not less than two thirds of those present and voting had to be in favour?
That applies to the passing of the motion. This deals with the signature of the certificate that allows the motion to be tabled.
We are attempting to include section 4 motions in the Planning and Development Bill specifically in relation to planning and development. In the new local government Bill we will restate it as a general power of the members. There was mention of five signatures but it was supposed to be removed from the Bill.
The original intention here was that there would have to be a certain proportion of the members in each electoral area signing. As Deputy Dukes said, it was never envisaged that it would require all the members of an electoral area. I am advised that the effect of the amendment could be more easily achieved by deleting the words "not less than 3 members of the local authority concerned, members consisting of or including". That would bring it back to the three quarters of the total number of the members who stand elected to the authority of that area.
The provision would then read "if the land concerned is situated in a single local electoral area, by not less of three-quarters of the total number of the members who stand elected to the authority for that area, or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient".
Two members in a three seat electoral area.
This has been an education in draughtsmanship for me. That is a much more elegant solution than my proposal. I am entirely in favour of it.
I move amendment No. 1 to amendment No. 277:
In the first line of the amendment after "subsection (7)(a)(i),” to delete ’lines 27 and 28, after “sufficient,” to insert “save that in a local electoral area where the total number of members who stand elected to the authority for that area is 3, the notice shall be signed by 2 members,’ and insert “lines 21 and 22, to delete “not less than three members of the local authority concerned, being members consisting of or including”.
I also confirm that a section 4 motion, in relation to all matters other than planning, will require five signatures.
Yes, because it would not be related to electoral areas.
It would not be related to a specific area.
Is the effect of what the Minister proposes to reduce the requirement for signatories to two?
Only where there is a three seat electoral area.
In a four seat area it is three and in a five seat area it would be three also, which is three quarters of five.
I am not sure that I agree with that. The minimum of three has always been a requirement for section 4 motions. I appreciate that the three can be drawn from electoral areas other than the area in which the development is to take place. For planning purposes, the idea was that there would be a minimum of three quarters of the members of the electoral area concerned. The purpose of that was to avoid the scenario described yesterday where section 4 motions were sometimes proposed by members of a local authority well outside the area in which the issue was arising and, in some cases, voted against by the members in that area. The thinking behind this is that there would have to be broad consensus in the area concerned, that the proposal was desirable. That was where the threshold of three quarters came in.
In a three seat electoral area it is possible, for example, that two of the three members could be members of the same political party. Of course, it does not always follow that members of the same party take the same position on planning issues but it would defeat the purpose of ensuring that there was a sufficient consensus across political divisions in an electoral area to reduce the requirement to two signatories and would be a regressive step. It is not a step I would support and I think we should reconsider it.
I regret that Deputy Gilmore takes that view. It is grossly unfair to require that in a three seat area there would be unanimity. The effect of Deputy Gilmore's suggestion would be that, uniquely, in the case of a three seat area unanimity would be required in order to pass a section 4 motion. I do not think that is appropriate. Unanimity is not broad consensus, but would give a veto to each of the members in all circumstances. One may speculate on what can happen if the three members include two members of the same party or one member each of three parties, or whatever else. That is not our business; it is the electorate's business. It decides that. To have a requirement of unanimity in a three seat area and not in a four or five seat area is wrong.
The provision of three quarters was judged to be suitable when the change was being made and it is still suitable. I cannot see any reason not to apply the three quarters rule to three seat areas as well as four seat areas. I have a feeling that it was more by accident than design that the provision came out in the Bill in the way it did. I hope I do not insult anyone by saying this. That is why I proposed the amendment and have accepted the Minister's alternative.
What Deputy Gilmore is trying to achieve is protected by the fact that the signing of the motion by three quarters of the members merely puts the motion on the agenda. Three quarters of the total membership of the council would still be required to support such a motion in order to have it passed. That is where the protection sought by Deputy Gilmore will be achieved. The matter would have to be judged on its merits by members of the council from every area.
It is very difficult to disagree with the logic advanced by Deputy Dukes. We could make the point that electors in a three seat county electoral area could be disadvantaged in comparison with electors in a four or five seat area, if a there was a minimum requirement of three signatories, in other words, if all three councillors in a ward or area had to sign a section 4 motion. As Deputy McCormack has said, the ultimate protection of the public interest is in the minimum requirement of those who must support the motion. The signing of the motion merely tables it for discussion.
Is it proposed to place any restriction on the areas where section 4 motions can be tabled by the number of councillors who are allowed to do so? For example, what is the validity of a section 4 motion which is in gross violation of the county development plan? Is it proposed to restrict section 4 motions which are not broadly within the county development plan, as set out by the members?
I have a similar question, based on experience in my own county. Over the last four or five years, no section 4 motion was passed because the manager refused them on legal advice, irrespective of the merits of the proposals. As a result, section 4 motions are no longer pursued because to propose them is merely an exercise in diplomacy. This has been the practice in County Galway. Section 4 motions are never used in the city council.
Furthermore, if, in the course of a debate on a section 4 motion, any member refers to an item which does not take into account the proper planning and development of the area or is not relevant to it, the motion could be refused. For example, if a member referred to a particular family's need for planning permission for some reason such as the need to replace a house which is bad repair or to sell a site in order to finance roof repairs, that matter would be considered not relevant to planning and the section 4 motion would be refused on the advice of the council's legal advisor.
I would like to hear some wisdom from the Minister in response to these points.
The Deputy will receive an answer. I do not know if he will hear wisdom.
In response to Deputy Kirk's point, if a section 4 motion is in violation of the development plan it must be classified as a material contravention. The manager normally sets that in place. That is why I referred earlier to the number of material contraventions where section 4 motions are involved.
In the case of section 4 motions, the members take over the functions of the manager. The members then have the same obligations as the manager in deciding on a planning application. They cannot decide on an application on the basis of social circumstances and poverty; they have to decide on the basis of the principles of proper planning and development.
I will not stray into the legal area but in County Meath some section 4 motions have been accepted and implemented by the manager while others have been rejected because the members strayed from the principles of proper planning and development in deciding an application. Members have been informed that they may have to consider attaching planning conditions similar to the conditions that may be attached by the manager. Section 4 motions transfer executive power from the manager to the members who have to act in the way the manager is expected to act, that is, in accordance with the law.
Amendment to amendment put and declared carried.
Amendment No. 277, as amended, agreed to.
I move amendment No. 278:
In page 51, subsection (8)(a), line 44, to delete “(c) and (d)” and substitute “(c), (d) and (e)”.
Amendment agreed to.
I move amendment No. 279:
In page 52, subsection (8), between lines 17 and 18, to insert the following:
"(e) Where, in the case of an application for permission for development that-
(i) would be likely to increase the risk of a major accident, or
(ii) is of such a nature as to be likely, if a major accident were to occur, and, having regard to all the circumstances, to cause there to be serious consequences,
a planning authority consults, in accordance with the permission regulations, with a prescribed authority for the purpose of obtaining technical advice regarding such risk or consequences, the authority shall make a decision in relation to the application within 4 weeks beginning on the day on which the technical advice is received.".
Does this amendment have any implications for what we call the Seveso sites?
It is that part of the group.
Amendment agreed to.
I move amendment No. 280:
In page 52, subsection (8)(e), line 19, to delete “(c) or (d)” and substitute “(c), (d) or (e)”.
Amendment agreed to.
Amendment No. 281 not moved.
I move amendment No. 282:
In page 52, between lines 37 and 38, to insert the following subsection:
"(11) Where a decision given under this section or section 36 departs from the technical advice furnished by the staff of the planning authority or by any consultants engaged to give such advice, the decision shall state the reason why such technical advice was set aside.”.
The intention of this amendment is so clear that I am sure there will be no argument and it will be agreed immediately. The intention is to contribute further to making the planning process transparent. I will not give lengthy anecdotal explanations of what lies behind it.
The Minister knows that there will always be difficulties. I am not and never have been one of those who believe that those in positions to make decisions should always slavishly follow the technical advice given but as a general rule it pays not to keep the dog and bark oneself. One should have a good reason for departing from the advice of technical and expert staff. That is certainly the case in planning matters. Similar amendments have been tabled in respect of An Bord Pleanála where, if anything, the issue is even more contentious.
In this instance we are dealing with the normal course of planning applications which by far make up the greater number of cases. The public has a right to know the reasons decisions depart from the technical advice given. There may well be good reasons for doing so but the public has a right to know. If there are not good reasons for doing so the advice should not be departed from. It should not be possible to cloak this in either case from the elected members of the local authority or the public by not having to give a reason. The amendment should recommend itself very highly to those who are serious about making the planning process transparent.
I support the amendment. As Deputy Dukes indicated he and I have tabled similar amendments in relation to An Bord Pleanála in respect of which concerns have been expressed about its departure from the recommendations made by its inspectors. I am referring in particular to cases where oral hearings have been held.
The amendment would take into account decisions made either by the manager in the exercise of his or her executive functions or by way of section 4 motions which are decided upon by the elected members of the local authority. In the consideration of a planning application a planning officer studies the file and makes whatever inspections of the site are necessary. Technical advice is also given by the roads and sanitary services engineers, personnel of the parks department and so on. A decision will eventually be made to grant or refuse planning permission or to impose certain conditions. In some instances this will depart from the advice given by the various professionals who examine different aspects of a planning application.
I agree with Deputy Dukes that it is open to whoever makes the decision, whether it is the manager or the elected members of the council, to depart from the advice given. It is necessary however to state the reasons the advice is being departed from. If the professional advice on a planning application is to be departed from the applicants and those who make observations are entitled to know the reasons, which should be on the record and above board. I support the amendment which would strengthen the planning code by making it more transparent.
I support the amendment. Will the reasons the professional advice is being departed from in granting or refusing planning permission have to be made public? Section 4 is a different system because it is debated publicly and the reasons the members wish permission to be granted are public anyway. It would not come to a section 4 unless members were trying to make the manager arrive at a decision contrary to the planner's view. The planner's view is obviously to turn down an application since the members put it to a section 4.
Does the amendment cover both cases, where a permission is granted and where it is refused contrary to the advice given?
Yes. It refers only to a decision under the section. The decision can either be a decision to grant permission or to refuse permission. The matter is probably less contentious where there is a refusal. The reference to section 36 brings in An Bord Pleanála.
I draw members' attention to page 52, section 34(10) which covers this and An Bord Pleanála because there is a reference to section 36. Subsection (10) states:
A decision given under this section or section 36 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection.
That subsection is designed to meet what the Deputy is trying to achieve in his amendment. There is no doubt that the amendment is clear but if we incorporated it into this section, it could cause huge confusion.
As Deputy Gilmore pointed out, the technical advice on a file comes from a variety of sources and some of those sources can conflict with each other. The road engineer, for example, might give an application a clean bill of health and recommend that it be granted but the sanitary services engineer might recommend against planning permission being granted. The planner, too, might have his or her own views on it for other reasons. The fire officer or health and safety officer might have a report in the file. All of them might conflict but some might recommend one course of action while others might recommend the opposite. The manager or the chief planner, if it is a delegated function in the local authority, must make a decision based on the conflicting advice.
I appreciate the intent of the amendment but I believe it is covered in section 34(10). The Deputy is not a person who believes that Ministers should always slavishly follow advice from managers and so forth, as I have heard him point out on a number of occasions. In section 34(10) we are probably trying to achieve the same thing the Deputy seeks in the amendment. Ultimately, the manager must take into account all the advice he receives, even if it is conflicting. Any decision he takes must have evidence on the file to support it. In an effort to make the decision as transparent as possible, section 34(10) provides that any decision of a planning authority must give the main reasons and considerations on which the decision is based. It will be clear from that where and why the manager agreed or disagreed with the technical advice.
With regard to the point raised by Deputy McCormack, it is a decision and, regardless of whether it is for or against, it covers that. The planning file is a public document and the recommendations and decisions are available to be seen. If somebody feels at that stage that there is no basis for the manager's decision, there are legal and other remedies, including appeal to An Bord Pleanála, which can be followed. We are at one with regard to intent. The amendment is not necessary given that the matter is covered in section 34(10).
What does section 34(10) add to current legislation on the matter?
At present, a manager can look at the file and agree or disagree with the recommendation. This provision ensures that he will give the main reasons and considerations why he made the decision. If, for example, a number of reasons are given by an engineer why the permission should not be granted, the manager will have to address the reason for going against that advice. That is how the provision adds to current law. It will be open to the public and people will be able to make their own judgment on the decision.
I am not sure that the provision covers the thinking behind the amendment. Deputy Dukes is trying to establish that if, for example, a planning application is refused because it would be a traffic hazard and if the road engineer indicated that it would not be a traffic hazard, the manager would have to give the reason the application was turned down on the basis of it being a traffic hazard. Similarly, if it were turned down on the grounds of the ground not being suitable for a septic tank, contrary to the health inspector's report, an explanation would have to be given.
The fact that the reasons for refusal of a planning application have to be given does not expose whether the reasons for refusal followed the recommendations of the various people who advised on the traffic, health, fire and safety aspects. A planning application could be turned down for any of those reasons without an indication of whether it was on the basis of accepting or not accepting the relevant officer's report. Deputy Dukes is trying to ensure that where the manager's final decision is contrary to the advice of such officers, it would have to be justified. That is not covered in subsection (10).
I agree. Section 34(10) does not deal with it. The subsection only provides for what already exists. When a planning decision is made, the reasons for the decision are stated.
No. One gets the reasons for a refusal. One does not get the background considerations which led to the decision.
Yes, but one is not getting that here either.
No. It just states: ". . . state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions. . . ". That will provide what one already gets at present. If there is a planning decision and permission is granted for a development, the first condition is that the development be carried out in accordance with the plans, drawings, etc., submitted. The stated reason for that is "the interests of good planning and development". Another condition is access to the roadway and it simply states "in the interests of".
I agree with Deputy Dukes on this. We have both come across cases where, for example, there is a report from the roads engineer which states that this would create a traffic hazard but where one gets a decision which ignores that. Deputy Dukes's amendment seeks a specific reason to be stated which relates to the professional or technical opinion given on the way up. One will not get that in the type of generalised statement of reasons with which we are already familiar in a planning decision and which really tell us very little as to the reason it is given in many cases.
Perhaps I may add to that and give an example, which is one of many, of a permission that was granted. The advice from the roads officer of the council was that the development, as proposed, would put excessive pressure on limited road capacity in the immediate area and the advice from the sanitary services experts was that the available water supply was inadequate for the development and, from the point of view of effluent treatment and disposal, the development was premature. At least in that case - the particular example about which I am thinking - there were two applications side by side. One was for the construction of an effluent disposal plant and when the application was finally unsuccessful, the application to build the plant was discontinued. It was a very transparent kind of ploy anyway. The advice in terms of road capacity, water supply and sewage treatment and disposal was all contrary and the file was marked "permission granted".
It was appealed to An Bord Pleanála and an oral hearing took place. An Bord Pleanála quite rightly turned it down in the end. It was not possible to deduce from the grant of permission why the advice was superseded. I could conceive of a situation where, with section 34(10) as it stands, the relevant official could state, as the main reason and consideration on which the decision was based, that he felt it was inappropriate development for the area. There is nothing in section 34(10) which deals directly with any of the conflicts.
The Minister mentioned conflicts and there will be many cases in which this will arise. It could well be that the water supply and the effluent treatment system are all capable of handling it, or can be made capable by the operational conditions of so doing, and that there is a conflict on the roadside. The planning official could say that, having taken account of all these factors and that although there are disadvantages from this or that point of view, he believes that in the overall interests of planning and development, the permission should be granted and that the community would, therefore, have to accept, either permanently or for some time, some disadvantage in terms of safety and otherwise. At least the members of the local authority, the public, the people getting the permission and those who objected would know that.
What I have proposed in this amendment is, in every substantive sense, an addition to what is in section 34(10). If there are conflicts between different parts of the advice, so be it and let that be seen in public. One of the jobs of decision makers is to weigh up different factors, to strike a balance between them and come to a conclusion. It is rare enough that one finds that every consideration about a particular decision is favourable. Most of the time we are doing well if 90% of them are favourable. I do not see it as a valid objection on the Minister's part to say that my amendment would reveal conflicts. It is designed to reveal things.
I am not against revealing conflicts. We would be talking about different reports. Not all, indeed very few of the individual planning files which come before a manager have unanimity in that somebody will dissent at some stage. At the moment there is no obligation on the manager. In section 34(10), we are trying to place on obligation on the manager to state clearly the main reasons and considerations on which his decision was based.
In the case the Deputy mentioned, where there were three negative reports and the manager said to grant planning permission on the basis that this was appropriate development, the courts would, in all probability, throw that out and say he did not give proper consideration or the main reason and considerations.
We are united in one respect in that we want to try to ensure the system is as transparent as we can possibly make it. I am persuaded somewhat by the Deputy's argument that perhaps section 34(10) might be strengthened, to some extent, by his amendment No. 282. I can see that Report Stage will take nearly as long as Committee Stage but it is worth trying to get it right. I do not want to tie managers up in red tape but there is merit in the arguments both Deputies made. We will look at this again for Report Stage. Part of the problem are legal challenges and so on. It would probably be best dealt with in section 34(10). On the basis that I will consider this amendment from a legal point of view, I ask the Deputy to withdraw it. He can table it again on Report Stage when we will see if we can come up with something.
I thank the Minister. If he can find a way to incorporate wording into section 34(10) which achieves this effect, then I am perfectly happy to withdraw the amendment which I will table again on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 283, 284, 296 to 301, inclusive, form a composite proposal and amendments Nos. 285 and 295, inclusive, are alternatives to amendment No. 284. Amendments Nos. 283 to 301, inclusive, to be taken together by agreement.
I move amendment No. 283:
In page 52, lines 38 to 52, and in page 53, lines 1 to 10, to delete subsection (11).
I know this is complex. Part of what I am trying to do here is to make the text more readable. There are also some amendments of substance here. Basically, what I am trying to do is to break up a very long section into more manageable bits in what seems to me to be a more logical way. Part of the difficulty one has as a lay person dealing with legislation - I am a lay person when it comes to these things - is seeing how the various bits fit together. This particular section is a blockbuster section. I always feel, although it sometimes does not sound like this, that taking things in smaller sized bits make them a little more manageable. It might be good to deal firstly with the substance and then the form.
I agree that section 34 is very long and we are trying to break it up so that it is more manageable. To be helpful to the Deputy, I am prepared to accept amendments Nos. 284 and 299, subject to the references in amendment No. 299, subsections (1) and (7) to "this section" being changed to "section 34". I consider it appropriate to leave subsections (11), (13) and (14) where they are in section 34.
By accepting amendment No. 284, amendments Nos. 285 to 295, inclusive, cannot be accepted.
Is that in terms of their position or their substance?
As far as substance is concerned, there is no necessary link between amendments Nos. 284 and 299 and the intent of amendment No. 285. If the Minister takes a different view on the layout of the section then amendment No. 285 might be incorrectly positioned. I suggest that we discuss these amendments in terms of the effects of the proposed changes and leave their positioning to a later stage. If we can agree on the text I will be happy to trust the Minister to return on Report Stage with a repositioning to make it easier to read and comprehend - I have no problem with that. Once we get the substance right we can deal with the rest of it at a later stage.
I am prepared to proceed on the basis that the Minister is accepting amendments Nos. 284 and 299. I will also be happy if the Minister wishes to return on Report Stage to ensure the effect of the amendments are taken on board but are repositioned.
I wish to raise section 34(12) which deals with the provisions for taking into account by local authorities the track record of developers when permission is being given. I understand the effect of subsection (12) is that the planning authority can take into account the previous track record of developers, for example, if they are in breach of planning permission previously granted, and can refuse planning permission on that basis. Under the provision the planning authority must go to the High Court to make such an order. I have tabled an amendment which would provide for recourse to the Circuit Court rather than the High Court on the basis that recourse to the High Court can take time and be very expensive.
Why is it necessary for a planning authority to have recourse to the courts? I can understand that an issue may arise as to whether the developer is the same company as that which received planning permission on a previous occasion, etc., and that it may be necessary to ensure legal fire-proofing of the measure. However, can it not be done by giving developers the right of appeal rather than requiring the planning authority to go to the High Court in the first place? If recourse to the courts is necessary, why does it have to be the High Court? Could it not be the Circuit Court where cases could be heard faster and with less expense for everybody?
The original idea was that a local authority would be able to decide on the past record of a developer and use that to refuse planning permission. However, this was deemed untenable. We are dealing with a person's right to earn their livelihood and the strong advice I have is that it would not be constitutional to give local authorities the right to remove a person's right to earn their livelihood. I am also strongly advised that this is a matter of such grave importance and has such constitutional implications in terms of the right to property, to earn a living, etc. that it would have to be referred to the High Court which has unlimited jurisdiction.
We have thoroughly discussed this with the Office of the Attorney General and have taken legal advice and this is as far as we can go in the Bill. Personally, I regret this, but my main aim, and I am sure that of the Deputy, is to ensure the Bill is not open to legal challenge and my advice is that dealing with it otherwise would leave it open to such a challenge.
I support Deputy Gilmore's comments and wish to speak in favour of amendment No. 290 and others tabled by Deputy Dukes. The principle outlined by the Minister in terms of refusing planning permission has profound consequences for other provisions in the Bill, for example, development levies. I have tabled an amendment which would allow local authorities to take into consideration the previous history of an applicant in relation to issues such as development levies. If the Minister says the principle he has outlined applies throughout the Bill then I do not think we are doing a good day's work.
It is patently fair and sensible for the previous record of an applicant to be taken into consideration and I would be interested to see the advice received by the Minister, if that is possible, because we are not advancing the cause of good planning if we are not prepared to use the carrot and stick approach. It is most unfair that the appalling record of a developer cannot be considered when deciding on future developments and we will have to return to this issue.
We have found a legal and constitutional means to take into account the previous record of a builder and that is what we are inserting in the Bill. This is an advance on the current situation and means that a builder's record can be taken into account. The local authority can take that record into account in deciding to refuse planning permission, even though everything seems to be all right with a particular planning application but because the builder has a bad record, did not comply with terms of bonds or previous planning permissions, left estates unfinished and so on.
The difficulty arises in that, from a constitutional point of view, the local authority cannot make that decision but has to refer the issue to the High Court. As with all High Court decisions, it can be challenged in the Supreme Court, but this approach provides a means, for the first time, of taking a builder's record into account in the decision making process. However, this has to be done in a legal and constitutional way. Nothing would please me more than if this could be done by local authorities but that is not possible. This provision advances the situation but, perhaps, not as far as the Deputies and I would wish.
I would like to tease out this issue a little further. Our shared objective is to ensure that the track record of developers is taken into account when they apply for planning permission. This involves the kind of scenario with which we are all familiar where a developer does not finish a housing estate but moves to the next site, obtains permission and goes merrily on his or her way. This issue was the subject of a Private Members' Bill by Deputy Seán Ryan some time ago.
I accept the Minister shares this objective. However, like Deputy Hayes, I would be interested to see the legal advice on which this formulation is based. I do not understand how allowing the High Court to make the decision resolves the constitutional problem. If there is a constitutional problem then, ultimately, irrespective of who makes the decision, whether it is a High Court judge or a county manager, the provisions of the legislation can, presumably, be challenged in the Supreme Court. I do not understand how transferring the planning decision to the High Court resolves the legal difficulties.
To some extent, the High Court may not be enamoured with being landed with this responsibility. What is being done is that a planning authority will form an opinion that an application should be refused or certain conditions attached to it because of a developer's track record. However, the authority cannot make this decision itself but has to go to the High Court to seek a declaration to that effect. What standard of proof will the High Court seek before making such a declaration? The High Court will not see itself as a rubber stamp for the planning authority but will feel it has some judicial function in determining the planning application.
Are we asking the High Court to do something which it should not be asked to do, namely, to make a planning decision? The Minister is asking the High Court to make a declaration. Where, for example, does that leave the question of a subsequent judicial review of a permission? I am a little concerned that this may not be the way to proceed. Can the objective not be achieved by allowing the planning authority to make the decision in the first instance and setting out the terms under which that decision is appealable to the High Court if a developer feels aggrieved?
On the Order of Business some weeks ago I asked the Taoiseach if it was possible to see the Attorney General's advice on a later section of the Bill. In all my naivety, I wonder if it is possible for the committee to see the Attorney General's advice in respect of the right to earn a living? The right to earn a living, while not in conflict with the right to property, is a different fundamental right and I would be interested to know the precise advice given by the Attorney General on this issue. I respect the Minister's recommendations but it would help the committee in its deliberations if it could see the advice.
I wish to return to the issue of the courts. If I understand the position correctly, Deputy Gilmore's amendments seek to substitute the Circuit Court for the High Court in the first instance. Amendment No. 290 seeks a different objective, namely, not to place the obligation on the planning authority to bring a matter before the High Court as proposed by the Bill but to allow the planning authority to come to a conclusion on the basis of the applicant's past record and to refuse to deal with an application. If the applicant feels aggrieved by that decision he or she could ask the court to set it aside.
Such an approach seems more in keeping with the kind of role that the courts should and do have in planning matters and in the defence of rights. As things stand, the only role the courts have in planning matters arises in respect of legal defects in procedure. If a planning authority overlooks some legal requirement in dealing with a planning application then there is a right to go to court. Similarly, if An Bord Pleanála infringes procedures then one can seek a judicial review. However, the courts know nothing about proper planning and development. That is not a criticism of the courts as they are not set up to deal with such issues.
I am seeking to allow authorities to exercise their functions as planning authorities and to conclude in particular cases that they do not trust certain applicants because they have a bad record. This should be a sovereign decision of planning authorities. However, in fairness, we should also give applicants the right to go to court if they feel aggrieved by such a decision. In such cases, the courts would be the arbiters, not of planning matters but of the way in which the rights of a particular applicant are being vindicated. That is why I formulated my amendment on the basis that the application to the High Court by the person concerned would seek to annul the opinion formed by the planning authority and to direct the authority to process the application as if it had never formed that opinion.
That would be perfectly reasonable and although I am no expert in these matters, any more than I am in parliamentary drafting, it would be in keeping with the kind of role and responsibilities we apply to the court. The court could inform the planning authority to examine the planning application in question on its merits, as it would any other planning application, and as if it did not have any doubts about the background, track record or capacity of the person concerned. That would be far preferable to the procedure being proposed by the Minister who is seeking to do the exact opposite. His proposal would bring the court straight in to the planning process.
A local authority has the right to refuse a planning permission on planning and development grounds. In this instance, the planning application will come before the local authority and the local authority will consider fully all aspects of the planning application. Recourse to the High Court will not arise if the local authority refuses the application on planning and development grounds.
Will that include the previous record of the applicant?
No, it will be done purely on planning and development grounds and consideration of the development plan. If the local authority refuses permission, the applicant will then have the right to appeal the decision to An Bord Pleanála. If the local authority receives an application from a builder, undergoes this process and finds that there is no problem in regard to densities and design and that the application meets all the requirements for the proper planning and development of its area, it should grant planning permission.
The only problem the local authority may have is that the builder, in the various guises and forms with which we are all familiar, has an atrocious record in regard to planning in its area or in another area. The local authority simply may not believe that the builder will comply with any of the conditions it will impose, in spite of the beautiful plans which he submitted. Some builders who are accustomed to getting away with leaving estates unfinished etc. make their applications even better in order that they cannot be refused. Local authorities could find themselves in a position in which they should grant such planning permissions but do not want to because they do not believe the developer will deliver on the basis of his past record. At that stage, local authorities may decide to deprive the developer or builder of the opportunity to earn his livelihood.
Our legal advice is that such a decision cannot properly be made by a local authority. The only body or bodies which could make such a decision are judicial bodies and such matters must be referred to the High Court which has unlimited jurisdiction as opposed to the limited jurisdiction of the Circuit Court. The High Court will not make any decision in regard to the conditions which may be imposed by the local authority or in regard to any other aspect of planning, rather it will decide whether the local authority in question is acting in a fair and reasonable manner in making the decision to refuse permission and deprive the developer or builder of the opportunity to earn his livelihood. The court will only consider the previous record of the developer concerned, issues such as how many estates he left unfinished and the conditions he flouted, perhaps the non-payment of bonds, for example. At that stage, the High Court may judge that the developer has not acted in a fair and proper manner previously and that the local authority is acting reasonably in refusing permission or that the local authority is acting unreasonably and should not deprive the developer of the right to earn his livelihood.
We started out with the simplistic and seemingly straightforward idea that the local authority could make the decision based on a developer's past record but we were proved wrong. This is one aspect of the Bill on which we received a great deal of legal advice. We were advised strongly that this proposal is the only way to deal with this matter at the moment.
Let us take the case of a planning authority which has drawn up its development plan and zoned various areas for residential and commercial use. If land has been zoned for high density residential development, do the Minister's comments imply that if an application is made to build a high density residential development, which can be shown to be in the interests of the proper planning and development of the area, the local authority is obliged to grant a planning permission?
Generally speaking, yes, if land is zoned and an application is in accordance with the proper planning and development of the area. In many cases, people do not examine the development plan and lodge objections in regard to a specific individual application for housing. That happened near my home. One submission was received in regard to the development plan for the area to which I am referring, although it was not really an objection to the zoning of the land for residential purposes. Once builders move in to an area, all hell breaks loose. People do not seem to understand that if a particular area is zoned for residential or commercial purposes, that is why the value of the land increases and why, in a sense, the zoning "guarantees" that a particular type of development will be granted planning permission.
The Minister is saying that where an application is made in the proper form and in accordance with the zoning by a person who has the necessary connection with the land, the local authority is virtually obliged to grant a planning permission. The Minister is also saying that the form of the proposal in the Bill, which amounts to a refusal to permission to which people would otherwise be entitled, requires the High Court to make a decision because for the local authority to make the decision would be an infringement of the person's rights. As the law stands, the only choice a local authority would have in such a case would be to grant a permission.
I accept that the Minister is trying to grapple with this issue but does he accept that the formulation contained in the Bill will make it virtually impossible for a case to be taken against a builder who has a prior record? Why can the local authority not consider the applicant's record at the same time as it considers the application on its merits and demerits? In many cases where a planning committee is considering an application and giving its views to the manager or chief planner, the key issue is the previous record of the applicant. That is the biggest issue for members who see in their area the quality of his or her work. It seems to me to be sensible that when considering the application before members, the committee, the manager and officials, that the previous record of the applicant would be considered at that time.
It will have to be considered at the same time.
The Minister said that the application will first have to be considered purely on the planning issue and subsequent to that a decision will be taken.
No. The prescribed times will relate to this issue as well as to everything else. If they are able to make a decision within the two month period that this is a proper planning application and that everything is in order, generally speaking they will be aware of the record of the applicant and they will have to make the decision at the same time. Whereas normally they would grant a decision, because of who is involved, they may decide to refer the matter to the High Court. The two will be done at the same time but the local authority will have to——
After it goes to the High Court——
When it comes to the decision of the local authority after the period of time, it will be a refusal pending the decision of the High Court?
No, it will be suspended until the High Court makes a decision.
If the High Court finds that it is reasonable to refuse the person the opportunity of earning his living, to use the Minister's phrase, then the local authority simply refuses to grant the planning permission?
On the basis of the person's previous record.
In that event, if all this process has been gone through and the local authority refuses to grant the permission that is applied for, that means that in order for that land to be developed in accordance with the development plan and within the development plan period, some other person has to get a connection with the land that gives them the right to apply for permission.
Amendment, by leave, withdrawn.
I move amendment No. 284:
In page 53, lines 11 to 51, and in page 54, line 1 to 42, to delete subsection (12).
Amendment agreed to.
I move amendment No. 285:
In page 53, subsection (12)(a)(ii), line 16, after “applies,” to insert “or by a company or companies with which that person is or was associated as a director or in a managerial capacity,”.
This amendment seeks to add an additional definition into subsection (12)(a)(ii). This makes it clear that we are not just looking at the person but at companies with which he may have been involved.
If the Deputy examines the definition of "a person to whom this section applies" in paragraph (g) in page 54, he will see that it is very comprehensive in dealing with development carried out by companies and partnerships, including companies controlled by applicants. The meaning of “control” is taken from the Companies Act and is very comprehensive. It covers what the Deputy seeks to achieve. However, there could be a difficulty in accepting the term “managerial capacity” because a manager might not have had control over aspects of the business which was in breach of the planning permission. There could also be difficulty in extending the notion of control beyond that provided for in paragraph (g). This issue has been discussed fairly thoroughly and I am satisfied paragraph (g) covers what the Deputy has in mind. Therefore, the amendment is not necessary.
The Minister is saying that in the text of the Bill as proposed, one can consider a person or a company where that person was involved with the company as a principal or a partner, or with the kind of control set out in the Companies Act. If that person was involved in that company as an employee, then one cannot look at that company. That cannot be a consideration.
That is correct. It would depend on the capacity in which he was an employee of the company. Obviously, if he had a controlling interest or whatever else, it would be covered under the Companies Act.
The Minister's text requires that person to have been a principal or a partner in the company.
A shadow director is covered.
Amendment, by leave, withdrawn.
I move amendment No. 286:
In page 53, subsection (12)(a)(ii), line 20, after “1963,” to insert “or”.
These amendments are unnecessary because subsection (12)(a)(ii) refers to any information available to the planning authority and there is no qualification on where the information comes from or its source. The section already covers information provided by third parties. The amendment could limit the provision as arguments could arise as to whether a particular person had an interest in a previous company.
Amendment, by leave, withdrawn.
Amendment No. 287 not moved.
I move amendment No. 288:
In page 53, subsection (12)(b), line 37, after “nature” to insert “or which was imposed in response to a submission or an objection from any other party”.
This amendment would provide that the operation of this subsection would only apply where a breach of a condition was of a substantial nature or where it was in breach of a condition imposed in response to a submission from another party. The amendment would be less than helpful because it could be impossible to identify in many cases a direct connection between submissions and a planning application and a decision of the authority. The planning authority might have imposed that particular condition in any case. This amendment could lead to much legal argument and would not assist in the workings of the provision.
Amendment, by leave, withdrawn.
Amendments Nos. 289 to 295, inclusive, not moved.
I move amendment No. 296:
In page 54, lines 43 to 46, to delete subsection (13).
What is the purpose of subsection (13)? Is it the only provision which opens up the possibility of an application for retention permission?
No. Section 32 also dealt with that possibility.
Why is this one necessary?
There used to be a separate section for this and it is inserted here along with the others. It provides the same provisions for retention.
Amendment, by leave, withdrawn.
I move amendment No. 297:
In page 54, lines 47 and 48, to delete subsection (14).
What is the purpose of subsection (14)?
It is a provision which has existed since 1963 to cover places where a person is supposed to get other licences. If someone gets planning permission for a pub, he does not automatically have the right to open a pub, he has to have another licence to operate it. This makes it clear that the provision of the 1963 Act is still the same.
There is more call for it now because the EPA Act also exists.
Amendment, by leave, withdrawn.
Section 34, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 298:
In page 55, before section 35, to insert the following new section:
"35.-(1) Where the planning authority decides under this section to grant a permission-
(a) in case no appeal is taken against the decision, it shall make the grant as soon as may be after the expiration of the period for the taking of an appeal,
(b) in case an appeal or appeals is or are taken against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals-
(i) it is withdrawn, or
(ii) it is dismissed by the Board pursuant to section 188 or 123, or
(iii) in relation to it a direction is given to the authority by the Board pursuant to section 124, and, in the case of the withdrawal or dismissal of an appeal or of all such appeals, as may be appropriate, it shall make the grant as soon as may be after such withdrawal or dismissal and, in the case of such a direction, it shall make the grant, in accordance with the direction, as soon as may be after the giving by the Board of the direction.
(2) Where the Board decides on appeal under section 36 to grant a permission, it shall make the grant as soon as may be after the decision."
This amendment deals with the reordering of the furniture, as does amendment No. 299. The Minister said he will look at the lay out of these sections before Report Stage so I will withdraw amendment No. 298.
Amendment, by leave, withdrawn.
I move amendment No. 299:
In page 55, before section 35, to insert the following new section:
"35.-(1) Where, having regard to-
(a) any information furnished pursuant to regulations made under section 33(2)(j), or
(b) any information available to the planning authority concerning development carried out by a person to whom this section applies, pursuant to a permission (in this subsection and subsection (2) referred to as a ’previous permission’) granted to the applicant or to any other person under this Part or Part IV of the Act of 1963,
the planning authority is satisfied that a person or company to whom this section applies is not in compliance with the previous permission, or with a condition to which the previous permission is subject, the authority may form the opinion-
(i) that there is a real and substantial risk that the development in respect of which permission is sought would not be completed in accordance with such permission if granted or with a condition to which such permission if granted would be subject, and
(ii) that planning permission should not be granted to the applicant concerned in respect of that development.
(2) In forming its opinion under subsection (1), the planning authority shall only consider those failures to comply with any previous permission, or with any condition to which that permission is subject, that are of a substantial nature.
(3) An opinion under this subsection shall not be a decision on an application for permission for the purposes of this Part.
(4) Where the planning authority has formed an opinion under subsection (1), the planning authority shall apply, by motion on notice to the person to whom the opinion concerned relates, to the High Court for an authorisation to refuse permission and the High Court, on hearing the application-
(a) may grant an authorisation to the authority to refuse permission for that reason, or
(b) may refuse to grant an authorisation to the authority to refuse permission and shall remit the application to the authority for decision, or
(c) may give such other directions to the authority as the Court considers appropriate.
(5) (a) Subsection (8)(a) in section 34, shall not apply where an application to the High Court under subsection (3) is made within the period of 8 weeks from the date of the making of an application for permission under this section.
(b) Where, under subsection (4)(b), a matter is remitted to the planning authority, a decision on the permission shall be made within the period of 8 weeks from the date of the decision of the High Court, and subsection (8)(b) in section 34, shall be construed and have effect in accordance with this subsection.
(6) Where an authority is granted an authorisation by the Court under subsection (4)(a) to refuse a permission, no appeal shall lie to the Board from that refusal.
(7) In this section 'a person to whom this section applies' means-
(a) the applicant for the permission concerned,
(b) a partnership of which the applicant is or was a member and which, during the membership of that applicant, carried out a development referred to in subsection (1)(b),
(c) in the case where the applicant for permission is a company-
(i) the company concerned is related to a company (within the meaning of section 140(5) of the Companies Act, 1990) which carried out a development referred to in subsection(1)(b), or
(ii) the company concerned is under the same control as a company which carried out a development referred to in subsection (1)(b), where ’control’ has the same meaning as in section 26(3) of the Companies Act, 1990, or
(d) a company which carried out a development referred to in subsection (1)(b), which company is controlled by the applicant-
(i) where 'control' has the same meaning as in section 26(3) of the Companies Act, 1990, or
(ii) as a shadow director within the meaning of section 27(1) of the Companies Act, 1990".
Amendment agreed to.
Amendments Nos. 300 and 301 not moved.
SECTION 35.
Amendment No. 303 is an alternative to amendment No. 302 and they shall be taken together by agreement.
I move amendment No. 302:
In page 55, subsection (3)(a), line 9, to delete “the” and substitute “a”.
Deputy Dukes's amendment was an alternative to this amendment, which would change the reference from "the subsequent application" to "a subsequent application". This relates to subsequent applications on the grant of outline permissions. This has the same effect as Deputy Dukes's amendment, although his would insert "any" instead of "the".
I prefer "any", it is better English but I will not die in the ditch for it.
We will accept Deputy Dukes's amendment on the basis that he will not become obstreperous later.
Amendment, by leave, withdrawn.
I move amendment No. 303:
In page 55, subsection (3)(a), line 9, to delete “the” and substitute “any”.
Amendment agreed to.
I move amendment No. 304:
In page 55, subsection (4), line 21, to delete "to" and substitute "on".
Amendment agreed to.
Section 35, as amended, agreed to.
SECTION 36:
Amendment No. 306 is an alternative to amendment No. 305 and amendments Nos. 316 and 481 are related. Amendments Nos. 305, 306, 316 and 481 will be taken together by agreement.
I move amendment No. 305:
In page 55, subsection (1), lines 34 to 41, to delete paragraph (a) and substitute the following:
"(a) An applicant for permission and any other person may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34.”.
These amendments relate to one of the main issues which have been raised with committee members - the circumstances in which third parties may appeal to An Bord Pleanála. The Bill restricts the right to appeal to An Bord Pleanála to the planning applicant and those third parties who had already made written submissions to the local authority when the planning application was under consideration by that authority. That would be a very substantial change in the right to appeal to An Bord Pleanála.
Of the two amendments in my name, amendment No. 305 would enable any person to appeal to An Bord Pleanála, provided the appeal was submitted within the required period of time. It would also abolish the fee for appeals. The alternative is amendment No. 306, which I share with Deputy Dukes. This proposes to excise from the Bill the restriction of appeals to those who have made a written submission to the planning authority. There are many circumstances in which somebody might want to appeal to An Bord Pleanála but who has not made a written submission to the planning authority. Someone might have been away from home and missed seeing the application in time but may have very good grounds for appeal to An Bord Pleanála.
The second circumstance, which the Minister's amendment meets to some extent, is where the planning authority, in deciding an application, might set down conditions which would disadvantage a third party who might have been perfectly satisfied with the original application. The Minister's amendment would allow for such an appeal in certain circumstances but it does not go far enough to meet the widely held concern that a person should be entitled to make an appeal to An Bord Pleanála if he or she is unhappy with a planning permission which has been granted by a local authority. That right of appeal should not be confined to those who have paid £20 and made their initial observations to the planning authority.
This is a question of democratic rights. Citizens must have the democratic right to make their appeal if they are unhappy with a decision which has been made by a planning authority. That right can be exercised by an appeal to An Bord Pleanála. It should not be restricted in the way the Minister proposes in the Bill. It should be left as it is so that any person can lodge an appeal with an Bord Pleanála.
My name was also appended to amendment No. 305, although I acknowledge that Deputy Gilmore's wording was tabled first.
This measure is not a reform. It is the introduction of a restrictive process of appeal and has created an amount of concern among the public. The practice of having open access to the appeals procedure through An Bord Pleanála has been a safety net. It provides a safety net in the situations described by Deputy Gilmore. I add another instance. Deputy Gilmore did not describe the circumstance, in a small community, of a person not wishing to create ill-will with a neighbour and waiting in hope to see if a planning authority will refuse an application. An individual may hope that the process will recognise the negative impact of a proposition but this does not always happen and people can be disappointed. In situations where an application is refused by the local authority, in line with the hopes of concerned neighbours, they must then avail of the opportunity of appealing to An Bord Pleanála, the last court of appeal. It would be punitive to allow this section to proceed. It will create concern and will directly affect the situations such as I have described and with which any elected local authority member would be conversant. It is the reality of Irish society and is part and parcel of the interrelationship of people in small communities. We must recognise that.
I apologise for my inability to attend last Tuesday's sitting of the committee. While I found it extremely difficult to participate in the way other members have in the course of this debate, I have watched the deliberations on camera in my room very intently. I missed two amendments which I had proposed or to which I was a party. What was the fate of amendment No. 230? Am I right in saying that the fee stands and that there is little point in my pressing that element of amendment No. 230 at this point, except for the fact that this is my first opportunity to record my view that it is a retrograde step. I have spoken to planning authority administrators in a number of county council and municipal authority areas who tell me that the fee will not add to the coffers of local authorities and will present a headache to staff who must administer the charge. I record my opposition to the measure. I hope we will have a further opportunity to address this issue when the debate returns to the floor of the House.
I appeal to the Minister to accept amendment No. 305, to the exclusion of the element he has already addressed. The circumstances Deputy Gilmore and I have described illustrate the strong argument for providing an open-ended opportunity to take part in the appeal process. I urge the Minister to accept the amendment.
As Deputy Gilmore said, there are further circumstances, about which we have spoken, where the interest of a person in a planning application can change on completion of the first stage, that is, the attaching of conditions to planning permission to carry out works which originally were considered unobjectionable. These can substantially modify the effect of a development on neighbours. In addition to the ones adduced by Deputy Gilmore such considerations are relevant.
We are constantly told, correctly, that we have one of the most open planning systems in Europe in terms of accessibility to the public. We are also constantly told, correctly, that it is the most accessible to third parties. I have heard no argument that would justify restricting this access. I have heard no credible argument to the effect that that freedom of access in any way prejudices the operation of the system. I have heard no argument therefore that I would regard as valid for interfering in any way with the status quo, that is, where a private individual feels aggrieved or concerned he or she, without having to pay a fee, may make observations on a planning application to the planning authority and where a decision affects a private individual, regardless of whether he or she made observations on the original application, he or she may appeal the grant or refusal of planning permission to An Bord Pleanála on payment of a fee. Nothing I have heard gives me any reason to believe that this should change.
The case has been made that the accessibility of the system to third parties causes delays but I am not persuaded that that is the case. I have heard it said that if the access of third parties was limited the process could be speeded up but, again, I am not persuaded that that is the case. I have also heard it said that there are people who have no business making comments on planning applications or in lodging appeals because they do not live anywhere near the development in question but I am not persuaded by this either. If the appeal is frivolous and vexatious it can be thrown out by An Bord Pleanála but if there is a wider public interest which they believe should be represented it should be heard.
The amendments are designed to maintain that part of the status quo which is relevant to this part of the Bill. The Minister should recognise that none of the reasons adduced for making the changes proposed in the Bill is valid and that he should therefore not make them.
I have heard no argument that would make me change my mind on the validity of the changes proposed in the Bill. Deputies will be delighted to learn that I do not intend to rehash all the arguments advanced previously. Deputy Dukes is correct, we have the most open system in the European Union. About 40% of all appeals to An Bord Pleanála are lodged by third parties. The proposed changes will not restrict this. It is only right that those with an interest in a planning application should express their interest to the local authority by which 90% of all planning applications are decided. The particular rights conferred on individuals are being given statutory recognition which may be invoked on the payment of a very modest fee.
I appreciate what Deputy Ó Caoláin said, that neighbours half depend on the local authority to refuse planning permission as they do not want to cause problems for their neighbours but given that we have been told that we live in an open and transparent society we should be mature enough to know that we can agree to disagree on various matters. The fear that one will cause hassle for a neighbour is not a sound reason for not insisting that somebody should make their views known to the local authority.
I do not want to rehash the reasons, outlined in great depth in the Seanad and in the House on Second Stage, we are introducing a fee except tosay that Deputies expressed concern about cases where people, who were perfectly happy with the initial application, are not happy with the final outcome because of the conditions imposed by the local authority. I accept the arguments made by Deputies and have tabled an amendment to meet their concerns. This is an indication of my desire to facilitate Deputies as much as possible but I am not for turning on the issue of fees. I do not intend therefore to accept amendments Nos. 305 and 306.
Sitting suspended at 4.20 p.m. and resumed at 5 p.m.
Amendment put and declared lost.
Amendment No. 306 not moved.
I move amendment No. 307:
In page 56, subsection (1)(d), line 5, after “paragraph (a), to insert “and subsection (5)”.
Amendment agreed to.
I move amendment No. 308:
In page 56, subsection (1)(d), line 6, to delete “four weeks” and substitute “one month”.
I thought the Minister had agreed to accept this amendment and to substituting one month.
We are putting much effort into ensuring there is no mention of months and that the periods are denoted in weeks.
In that case I will come back to it on Report Stage. It is an important matter.
Amendment, by leave, withdrawn.
I move amendment No. 309:
In page 56, subsection (1), between lines 7 and 8, to insert the following:
"(e) While an appeal is awaiting determination by the Board an applicant shall not submit a further planning application to a local planning authority in respect of the proposed development which is under consideration by the Board.”.
We put down an alternative amendment, No. 22, to meet the Deputy's concerns.
Amendment, by leave, withdrawn.
Amendments Nos. 311 and 313 are related to amendment No. 310. Amendments Nos. 310, 311 and 313 can be discussed together. Is that agreed? Agreed.
I move amendment No. 310:
In page 56, subsection (2), lines 8 to 12, to delete paragraph (a).
These amendments relate to cases where the planning appeals board may grant a planning permission. Under the Bill the planning appeals board may grant a planning permission even if the proposed development materially contravenes the development plan relating to the area of the planning authority to whose decision the appeal relates. The courts, as I understand it, have found that the development plan is a contract between the public, the planning authority and the members of the local authority concerned. Local authorities are prevented from granting planning permissions which materially contravene the development plan. There is a procedure set down to deal with that. If an application materially contravenes the development plan, a procedure has to be put in place involving public consultation and, ultimately, a decision has to be made by the members of the local authority. Indeed, such a decision requires three-quarters of the members of the local authority to vote in favour of it. It is in very limited circumstances that a local planning authority can give a planning permission which materially contravenes the development plan.
On the other hand, An Bord Pleanála is free to grant a planning permission on appeal which materially contravenes the development plan. That negatives the local democratic authority of the development plan. If members of local authority following consultation with the public in that area and on the advice and assistance of the professional planners and the county manager adopt a development plan setting out the development objectives, the zonings, the road reservations and all the other matters normally contained in a development plan, it should not be open to An Bord Pleanála to simply grant a planning permission which contravenes that without, at the very least, some procedure being put in place which would return the issue to the local authority.
Even if we had a procedure whereby An Bord Pleanála could send back an application to a local authority and ask it to reconsider it or, indeed, direct the local authority to commence the material contravention procedure, it would be better than what we now have and what is proposed in the Bill which is, irrespective of the view of the community locally, what is in the development plan and the wishes of the members of the local authority, An Bord Pleanála can, in its wisdom, grant a permission which materially contravenes the development plan. That should not be allowed.
Amendment No. 310 is to excise that provision. If the Minister considers that is going a bit too far, then let us deal with some procedure which can deal with it or some arrangement whereby if An Bord Pleanála felt an application which contravenes the development plan should be permitted, its remit in the matter would be confined to perhaps giving a direction to the local authority to commence the material contravention procedure. It should not supplant the authority of the democratically elected members of the local authority whose responsibility and authority it is to make the development plan.
I agree with Deputy Gilmore. What the Bill does - I do not think this is an innovation in a real sense - is to set An Bord Pleanála in the place of the planning authority. That is not the job of An Bord Pleanála. It is there to be the court of final appeal in relation to planning applications and not development plans. It is inappropriate that An Bord Pleanála should have any power, no matter how limited, to second guess a development plan.
Deputy Gilmore's suggestion that, at the very least, there should be some provision to remit this to the local authority where the question of the development plan can be gone into in proper detail again is worthwhile. The Minister should have good reasons for proceeding in the way he proposes.
I tabled amendment No. 311 where, at the very least, there would be the opportunity for a public hearing on the matter so that the interests involved can be properly thrashed out. I have no difficulty in saying I much prefer Deputy Gilmore's amendment to mine. I regard amendment No. 311 as a second best in this regard for the reason I have stated, that is, that I do not think it is appropriate to put An Bord Pleanála into the shoes of the local authority in granting a development plan.
We have already had discussions about the business of material contraventions which are difficult enough matters with which to deal at the best times. To make it possible materially to contravene a plan via an appeal process does not seem to be a very appropriate way to go about it. I support Deputy Gilmore’s amendment and will be very interested to hear why the Minister believes it is necessary to propose that An Bord Pleanála should be put in in loco county councils, so to speak.
The two amendments Deputy Gilmore tabled are alternatives. The first amendment, No. 310, would delete the board's general power to materially contravene the local authority development plan. His second amendment would only allow the board to contravene a development plan, a local area plan or special amenity or landscape conservation area where three-quarters of the members voted in favour and that a decision on the vote should be recorded.
On that amendment, the board has operated pretty well since its establishment in 1997. It has often had to make decisions in very complex, complicated and controversial projects. It has always been done on the basis of majority decisions and I do not see any reason to change that now. I would not be in favour of the three-quarters of the members type approach.
I understand the Deputies' view which would lead them to want to remove the board's power to contravene the development plan. I have a certain amount of sympathy with it. The fact remains, because of the situation which has existed until now, development plans can be out of date or, indeed, under the new regime we are bringing in under Planning and Development Bill, we will probably find, as we did in the past, that the aims and policies laid out in the development plans may, in some cases, be conflicting or, if they are not conflicting, they may be very confusing. It would be necessary, therefore, for the board to have some power in that type of conflicting or confusing situation.
We are talking about a national planning appeals board which frequently has to take a broader view than perhaps a local authority, particularly in the context of the new regime where there will be strategic planning guidelines for regions and the national spatial strategy, in case there are conflicts. While I understand the arguments used by the Deputies, on balance, the power should be retained there.
Deputy Dukes's amendment would require An Bord Pleanála to hold a public hearing where the board proposes to grant permission which would contravene the development plan which the planning authority had previously refused. It is fair to say the board does not often grant permissions in material contravention of development plans - it does not do that lightly. It should, however, have the power to do so where there is conflict within development plans or where the policies of the plan are unclear.
I do not believe, for example, it would be helpful for it to be compulsory for it to hold an oral hearing because many of the material contraventions may be small. One could go through the whole procedure for something which is very minor. As I said, it is not something which has happened. Concerns were raised about this in the Seanad, as in the Dáil. In response, I made two amendments to the Bill in the Seanad. I inserted subsection (2)(b) to provide that where a planning authority has rejected an application because it materially contravenes the development plan, the board may only grant permission in certain limited circumstances. Those limited circumstances are outlined in subsection (2)(b).
They are, first, that "the proposed development is of strategic or national importance" - we would all agree that if it is of strategic or national importance, the board should be in a position to do it; second, where "there are conflicting objectives in the development plan or the objectives are not clearly stated, in so far as the proposed development is concerned"; third, where " permission for the proposed development should be granted having regard to regional planning guidelines for the area, guidelines under section 28, policy directives under section 29... “ and those particular circumstances and, fourth, where “permission for the proposed development should be granted having regard to the pattern of development and permissions granted, in the area since the making of the development plan”.
Therefore, the power which the board had prior to this, which was basically an unlimited power if necessary to contravene the development plan, has been greatly restricted here to cover specific reasons. Its power has been restricted for strategic reasons to do with either strategic planning guidelines, directives, etc., where "the proposed development is of strategic or national importance", or where there are conflicting objectives in the development plan.
The restrictions which we have now placed on the board are reasonable. Ultimately, when this legislation is in place and local authorities must complete the development plans to a particular timescale, this is a power which probably will not be used but could be looked at again because I believe it will not be necessary. If the plans are done, reviewed and revised on a regular basis, it should not be necessary. However, there would still be cases where development plans might conflict, either internally or externally, with the strategic planning guidelines. The section, as improved in the Seanad, should meet the concerns of the Deputies or go as far as we can to meet those particular concerns.
I am not convinced that the subsection is as restrictive as the Minister claims. Under subsection (2)(b)(iii), An Bord Pleanála could materially contravene a development plan having regard to regional planning guidelines, ministerial guidelines under section 28, ministerial policy directives under section 29 and “any relevant policy of the Government, the Minister, or any Member of the Government”. That seems to me to open up a fairly wide range of possibilities.
The Minister has hit the nail on the head in saying that it could well turn out that this would not be necessary when we have gone through all the process of the new development plans and the regional planning guidelines, but surely if we are serious about the status of development plans and regional planning guidelines, which will pose something of a problem, we should make sure that people get it right the first time around. I am wondering what kind of situations might arise here. It seems to me that if we look at considerations of whether the proposed development is of strategic or national importance or the considerations as laid out in paragraph (iii), we might be taking about one of these pestilential super dumps, one of these far less pestilential and much more environmentally friendly but much more controversial thermal treatment plants, a major port development which was on the borders of two local authorities, one of which in the Shannon Estuary comes immediately to mind, or some such thing.
It seems to me that if we are going to make proper provision for such developments, which may be controversial and difficult to resolve between local authorities, we should have a better system than happenstance in An Bord Pleanála to make it happen.
I could conceive of a situation where in one local authority there would be land zoned for residential development and in an adjoining local authority, under a regional waste management plan, that local authority identified a site for a dump. There is a big argument going on about a proposed dump on the border of the Minister's constituency on the Dublin side, for instance. If we are to deal with such issues, it is not appropriate to hope that the thing will get kicked up to An Bord Pleanála and that it will be decided by An Bord Pleanála as a material contravention of the relevant development plan.
It is not appropriate to sort it out in that way, that An Bord Pleanála can sit there and consider whether this is of strategic or national importance. What is the meaning of "national importance" anyway? The term "strategic" is loose enough, but what is of national importance? Was the interpretative centre at Mullaghmore a matter of national importance, for example? It is difficult to get a handle on that.
To return to paragraph (iii), which refers to ministerial guidelines and ministerial policy directives, there is the consideration I omitted, "the statutory obligations of any local authority in the area". It would seem to me that if a local authority has statutory obligations, they should be properly built into its development plan.
There is also another piece of string, the consideration of "any relevant policy of the Government, the Minister, or any Minister of the Government". This is potentially broad and uncertain and it could impinge substantially on the success or appropriateness of a development plan in any planning authority area.
To leave it all to be decided at the end of the day by An Bord Pleanála seems to me a bad way of going about planning. On closer examination, this subsection does not appear to be as restrictive as the Minister claims.
The Minister should think seriously about the proposition which we have put to him, that is, to remove from the Bill the power of the board to give a planning permission where the development contravenes the development plan. It seems to me that this particular provision is a hangover from the 1963 Act. As I understand it, in the 1963 Act the Minister had the power, on appeal, to grant a permission where it would materially contravene the development plan.
There might have been logic in that because at the time the Minister was the appeals board and he also had power regarding approval of a development plan. There was a certain internal consistency in that, irrespective of whether one may think it was a good idea, but the power was transferred to An Bord Pleanála. The reasons the Minister advanced for retaining it no longer apply.
To take the first reason, that the proposed development is of strategic or national importance, there is a new Part in the Bill which deals with strategic development zones which is capable of dealing with the big strategic concepts. Issues relating to regional planning and the provision of infrastructure in the regions is in some respects already catered for. For example, the National Roads Authority already has responsibility in terms of national roads and it can decide on the line of a road without necessarily complying lock, stock and barrel with the provisions of a development plan. Therefore, I am not sure it is necessary to have such a provision included in the Bill, supposedly for national and strategic reasons. The problem it gives rise to is the degree to which it undermines a development plan. It is very difficult to explain to a member of the public that once a development plan is adopted the county council cannot, for example, give planning permission outside its terms but An Bord Pleanála can. Members of the public who encounter this problem find it very difficult to understand that an appeals board, which has not been part of the development plan process, has the power to effectively overturn the plan, which is undemocratic.
My preference is that the provision be removed. The Minister said development plans will be reviewed on a frequent basis and that, therefore, the situation should not arise. It should also be removed on the basis that if such a provision is included, local authorities will be tempted to have provisions in their development plans which are less than practical. One is much more likely to have a dogmatic declaration in a development plan when people know that at the end of the day An Bord Pleanála can deal with exceptions to it. There is a very strong case for ensuring local authorities are aware that they will have to stand over what is included in the development plan and that it will have to be capable of dealing in a flexible manner with development.
I again ask the Minister to remove the provision. I take the point he has made in relation to the arrangements for weighted voting at meetings of An Bord Pleanála. As an alternative he might consider, before Report Stage, giving An Bord Pleanála the power to return a proposal to a local authority with a requirement that the authority commence the material contravention process. That returns it to the domain of the local authority, which is where it rightly belongs. There should not be two types of material contravention, one requiring a public consultation process and a vote by the local authority, with a requirement for three-quarters of the membership of the authority to vote in favour of it, and another based on an appeal to An Bord Pleanála. What happens if the majority of members vote against a material contravention initiated by a local authority, and the applicant appeals it to An Bord Pleanála and is granted permission? This brings local democracy and decision making into disrepute.
I wish to reiterate what I said, particularly in terms of when An Bord Pleanála can overrule the county development plan. There is an obligation imposed in the Bill - which already exists - on local authorities to take all these things into account when they are preparing a development plan. Here we are providing that, where a local authority does not do so in consideration of a planning application or in preparing their development plan, the board will have the authority and power to vary the plan. Deputy Gilmore spoke about strategic development zones, but they are much more restrictive than what is intended in these circumstances, and a full procedure applies to them.
It could arise that, for example, strategic or regional planning guidelines are decided upon and agreed, with a period elapsing between them being put in place and the altering of the development plan to take them into account. It would be wrong if the board did not have the right to judge a planning application on the basis of the regional planning guidelines and the development plan, and this provision will allow them do so.
The point was made about local democracy to which we are all tied. However, nothing would be built and there would be no development if there was pure local democracy, namely, allowing everybody to object to every development put forward. Nothing would be done if we allowed for pure democracy.
After yesterday, we see how too much can be built. It was an example of impure local democracy.
I will not labour the point as I think we have discussed it at reasonable length, but previously we talked about national spatial strategies, regional planning guidelines, development plans, etc. We are not granting any new power to the board here and I do not think it has abused the power granted it. I know it is annoying and I accept the point made by Deputy Gilmore about material contraventions. However, we are talking about a very small number each year and in general are talking about developments put forward because a development plan is unclear or because of conflicting objectives. We are restricting the right of the board to overrule local democratically elected public representatives, and this provision is an improvement on the current position. Please God, my successors will be in a position to remove it at a future date, but I do not think the time is yet right to do so.
Amendment put and declared lost.
I move amendment No. 311:
In page 56, subsection (2)(b), line 17, after “where” to insert “, having held a public hearing on the matter,”.
Amendment put and declared lost.
I move amendment No. 312:
In page 56, subsection (2), between lines 41 and 42, to insert the following:
"(d) In the event of the Board refusing permission for a proposed development on the basis it would materially contravene a provision of a development plan, a local area plan, an area of special amenity or of a landscape conservation area, an applicant may not re-apply for permission for the same development until the local planning authority has adopted a new development plan in the relevant area in the interest of the proper planning and sustainable land use of an area.”.
This amendment seeks to deal with the problem of the persistent applicant and refers to a case where An Bord Pleanála has refused permission for a development on the grounds that it would materially contravene a development plan, local area plan, special area amenity order or a landscape conservation area. The amendment provides that the applicant should be prohibited from applying for permission for the same development until such time as the planning authority has adopted a new development plan in the relevant area in the interest of proper planning and sustainable land use.
This amendment would prevent an applicant from re-applying for planning permission for the same development where permission was turned down on the basis that it would materially contravene a development plan, local area plan, special amenity area order and so on, unless a new plan or order was made. I can understand the reasoning behind the amendment but it would be practically impossible to enforce because with even minor modifications to an application, it could be held that the proposed development was not the same as the development refused. For that reason, the amendment is not workable.
Furthermore, if permission is refused for a development because it is contrary to an objective of the development plan, a person might be able to rework the submission or application so that it complies with the development plan. For example, on the issue of density. We should not prevent people from making applications which are acceptable in planning terms. I do not think the Deputy had that in mind but one of the effects of this amendment would be to bar people from applying for planning permission where they were able to readjust an application to fit a development plan. On that basis I ask the Deputy to withdraw the amendment.
I am not prepared to withdraw the amendment.
Amendment put and declared lost.
Amendment No. 313 not moved.
I move amendment No. 314:
In page 57, subsection (4), lines 3 to 6, to delete paragraph (b).
Subsection (4) stipulates that if a prescribed body is entitled to be given notice of a planning application that body is entitled to appeal to the board in the normal way before the expiration of the appeal period. However, it goes on to state that the board may dismiss an appeal made under paragraph (a) where it considers that the body concerned was not entitled to be sent the notice of a planning application. I cannot reconcile this approach as paragraph (a) only deals with prescribed bodies. If these bodies are entitled to be sent notice then they are entitled to appeal. If they are not entitled to be sent the notice then they are not entitled to appeal. However, paragraph (b) appears to give the board an additional discretion which would stipulate that, even though the bodies are entitled to be sent notice, it can decide otherwise and, therefore, the appeal is dismissed.
I would have thought that paragraph (a) is sufficient on its own but paragraph (b) seems to open the prospect that the board could exercise an additional discretion to decide that bodies are not entitled to be sent notice and, therefore, there should be no appeal.
The Deputy has a point. However, there are a range of prescribed bodies, some of which are entitled to be notified of some applications and others are entitled to be notified of other applications. For example, where it appears to a planning authority that a development would detract from the appearance of a building of artistic, architectural or historic interest, the prescribed bodies entitled to notification are An Chomhairle Ealaíon, Bord Fáilte, the Minister for Arts, Heritage, Gaeltacht and the Islands, the NationalMonuments Advisory Council and An Taisce. If, for some reason, the local authority omitsto notify one or other of these bodies, theydo not lose their right to appeal to An Bord Pleanála.
If, for example, in the same circumstances, the fisheries board decided to appeal a planning application and did not exercise its right as a body at a local level, it would not automatically have a right to appeal to the board. This is what we are trying to clarify. I accept the Deputy's point that this may appear somewhat confusing but we are trying to ensure that a prescribed body which has a statutory right but which, for some reason, is not officially informed by a local authority as it is obliged to do, that body does not lose its right to appeal. On the other hand, we are also trying to prevent an abuse of that procedure by preventing a prescribed body, not related to the issue, from lodging an appeal to the board.
In other words, where the planning authority makes a mess of things in the first place, these prescribed bodies do not suffer?
However, where a planning authority has made a mess of things and a prescribed body comes along, paragraph (b) stipulates that An Bord Pleanála may not make a mess of things by getting it wrong if the appeal should not have been made in the first place.
Amendment, by leave, withdrawn.
I move amendment No. 315:
In page 57, between lines 6 and 7, to insert the following subsection:
"(5) (a) No application for permission for the same development or for development of the same description as an application for permission for development which is the subject of an appeal to the Board under this section shall be made before-
(i) the Board has made its decision on the appeal,
(ii) the appeal is withdrawn, or
(iii) the appeal is dismissed by the Board pursuant to section 118 or 123.
(b) Where an application for permission referred to in paragraph (a) is made to a planning authority, the planning authority shall notify the applicant that the application cannot be considered by the planning authority and return the application and any other information submitted with the application in accordance with the permission regulations, and any fee paid.
(c) A dispute as to whether an application for permission is for the same development or is for development of the same description as an application for permission which is the subject of an appeal to the Board may be referred to the Board for determination.”.
Amendment agreed to.
I move amendment No. 316:
In page 57, between lines 6 and 7, to insert the following subsection:
"(5)(a) Notwithstanding subsection (1)(a), a person who has an interest in land adjoining land in respect of which permission has been granted may, within the appropriate period and on payment of the appropriate fee, apply to the Board for leave to appeal against a decision of the planning authority under section 34.
(b) An application under paragraph (a) shall state the name and address of the person making the application, the grounds upon which the application is made, and a description of the person’s interest in the land.
(c) The Board shall, within one week from the receipt of an application under paragraph (a), require, by notice in writing, the planning authority concerned to submit to the Board copies of the materials referred to in subparagraph (i) of section 113(a), the report referred to in subparagraph (ii) of that section, and the decision and notification referred to in subparagraph (iii) of that section and the planning authority shall comply with such requirement within one week from the date of receiving the notice.
(d) The Board, or any member or employee of the Board duly authorised by the Board in that behalf, shall, where an applicant under this subsection shows that——
(i) the development for which permission has been granted will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject, and
(ii) that the imposition of such conditions will materially affect the applicant's enjoyment of the land or reduce the value of the land, within 4 weeks from the receipt of the application grant the applicant leave to appeal against the decision of the planning authority under subsection (4).
(e) The Board shall notify in writing the applicant and the planning authority of a decision to grant or refuse an application under this subsection within 3 days from its making.
(f) A person to whom leave to appeal has been granted under this subsection shall bring the appeal within 2 weeks from the receipt of the notification under paragraph (d).
(g) Notwithstanding section 34(11)(a)(i), where an application is made under this subsection a planning authority shall not make a grant of permission unless the application is refused.
(h) Where leave to appeal is granted under this subsection, subsection (2) of section 111 shall apply subject to the modification that the reference therein to 18 weeks shall be construed as a reference to 14 weeks.
(i) Where leave to appeal is granted under this section a planning authority that has complied with paragraph (c) shall, in respect of the appeal, be deemed to have complied with the requirements of section 113.”.
We discussed this amendment.
Amendment agreed to.
Section 36, as amended, agreed to.
SECTION 37.
I move amendment No. 317:
In page 57, subsection (1), lines 10 and 11, to delete "during office hours at the offices of the authority".
We discussed the location of the head offices but it is rubbing salt into the wounds to say one has to do it during office hours at the offices of the authority.
This is linked to amendment No. 75. That amendment has to do with where it can be seen and we said we would look at that again.
What we spoke about was the range of services that would be available at the various offices of the local authorities. We will withdraw this amendment.
It is related to amendment No. 75.
Amendment, by leave, withdrawn.
Amendment No. 318 not moved.
Amendments Nos. 319 and 324 are related and may be discussed together by agreement.
I move amendment No. 319:
In page 57, lines 27 to 29, to delete subsection (2).
The question of copyright and other matters are at issue here. I believe Committee Stage of the Copyright and Related Rights Bill has been completed.
On the basis of the progress made on that Bill, which will go to Report and Final Stages shortly, we will accept this amendment.
I am glad to hear that because it was a nonsense to have people going into planning offices with tracing paper and markers trying to draw plans.
I hope that Bill is not delayed.
Amendment agreed to.
Amendments Nos. 320 to 323, inclusive, not moved.
I move amendment No. 324:
In page 57, subsection (5), lines 43 and 44, to delete ", other than a plan or other drawing or photograph,".
Amendment agreed to.
Section 37, as amended, agreed to.
SECTION 38.
I move amendment No. 325:
In page 58, subsection (1), line 14, after "therein" to insert "but without prejudice to the provisions of this Act in section 43 with respect to the revocation and modifications of permissions granted thereunder”.
Subsection (1) of this section states that the planning permission attaches to land and may benefit any person with an interest in that land. It was incorporated, without change, from the 1963 Act. The amendment would state that it is subject to the power of the planning authority to revoke or modify a permission under section 43. That is covered. The amendment is not necessary because any permission granted is automatically subject to the other provisions and requirements of the Bill, including the revocation of permission.
Is the word "enure" in subsection (1) at the end of the third line a term of art?
It is only used in planning.
The longer you live the more you learn.
Amendment, by leave, withdrawn.
I move amendment No. 326:
In page 58, subsection (2), lines 17 to 22, to delete all words from and including "and" in line 17 down to and including "section 46” in line 22.
What is the purpose of the words I propose to delete? The section states that where permission is granted the grant of permission may specify the purposes for which the structure may or may not be used. I do not see any great difficulty in specifying the purpose for which a structure may be used. The purposes for which a structure may not be used may be extensive. It is like saying "I do not know what an elephant is but I know what it is not". The subsection states
and in case the grant specifies use as a dwelling as a purpose for which the structure may be used . . . [it uses many words to say a simple thing] . . . the permission may also be granted subject to a condition specifying that the use as a dwelling shall be restricted to use by persons of a particular class or description and that provision to that effect shall be embodied in an agreement under section 46.
Section 46 concerns agreements regulating development or use of land.
Am I right that this is the provision under which Kildare County Council, Clare County Council, Meath County Council and most others now say they grant permission for development, typically an isolated development, on condition that the first occupant of the house is a member of the family?
Has that ever been tested? Is it not futile? We all know of cases where an application for permission is made. The applicant is a child of the owner of the land and all kinds of guarantees are given that the first occupant will be a son or daughter with sons-in-law, daughters-in-law, children and so on but the house is sold within a month of the occupant taking over. Has this been effective in achieving the purpose for which it was set out?
I do not criticise local authorities in their efforts to contain scattered random development. While the objective may be praiseworthy the way of securing it is not. As far as I know there is no real attempt on the part of local authorities to cluster development or guide it in ways that would be less intrusive. I may be right in saying that they never seem to pay much attention to encouraging people to develop away from roadsides or near other buildings, dwellings or holdings. Would they not be better advised to have a different policy? I do not know how they would express it.
The typical case is of a farm where permission is being sought for the development of one or two sites for a son or daughter. People want to build far enough away from the family home on the farm to make it a saleable proposition. I do not say that is wrong but planning law is not there as the financial rescue machinery for farms, much though they may need it. A local authority could reasonably say that if the person wanted to build another house on that holding it should be in such proximity to the existing one that would be acceptable if building in a low density residential area and not so far away as to be scattered and random development. The requirement that it be a member of the family who first lives in the dwelling has now become almost a joke. It is so transparent no-one believes it. County managers and planning officers smile when they see these applications. Is there a better way of doing it?
If there is a better way it has not been found. These are enurement clauses. What we are talking about is giving a power to a local authority to apply a different set of rules to the general principles that underline proper planning and development, that is making exceptions. There are two alternatives to this approach to what are called in County Meath once off houses in rural areas, maintain a total ban or allow a free for all. Neither is palatable. This is the middle way. It is to try to facilitate genuine local need.
It varies from local authority to local authority and practices change. In many cases these planning permissions are granted as the exceptions because of policy and the development plan but they are also attached to section 38 agreements whereby one permission is given on the basis that the applicant will not seek any more. It does not read that well but it is a necessary part of the planning process. It has been in existence since 1963 and is the best we can do to allow for those kind of exceptions.
I agree that there has been a lack of imagination on the part of local authorities with regard to cluster developments and so on. In fairness, that is changing and local authorities are moving towards integrated area plans and are applying them to rural villages. In County Meath they talk about wet and dry graiges. I do not know precisely what the term means but they are basically villages where they are clustering houses to cut down on the number of once off houses while providing sites in the local community.
As regards their effectiveness, in County Meath it has been reasonably good but there have been cases of the kind mentioned by the Deputy where planning permission was received on the basis of it being a family member and the house was sold within a short period. Section 38 agreements have, to a certain extent, ensured that does not happen on a wide scale. If it did, local authority members would know the manager would bring forward proposals to reduce their discretion. It is important that this be retained. If someone has a better idea between now and Report Stage I will be delighted to hear it.
Am I right in thinking that what we are talking about could be dealt with by way of guidelines issued by the Minister?
Amendment, by leave, withdrawn.
I move amendment No. 327:
In page 58, between lines 32 and 33, to insert the following subsection:
"(4) Notwithstanding anything in this Part, permission shall not be required under this Part, in the case of land which, on 1 October 1964, was normally used for one purpose and was also used on occasions, whether at regular intervals or not, for any other purpose, for the use of the land for that other purpose on similar occasions after 1 October 1964.".
This amendment provides that where land was normally used for one purpose but occasionally for another purpose on 1 October 1964 which, as members will know, was the commencement date of the 1963 Act, planning permission will not be required for the use of land for that other purpose on similar occasions.
This amendment merely inserts section 40(b) of the 1963 Act into the Bill. Section 40 was not repeated in this Bill as it was felt to have expired. It was relied on by the Supreme Court in a recent judgment, Butler and Others v. IRFU regarding concerts in Lansdowne Road. In the circumstances, it is felt that it is appropriate to restate section 40(b) at this stage. It should be noted that the pre-1963 uses of land that have caused the most controversy in recent years are for concerts and quarries, both of which will be dealt with later in the Bill. The type of use involved here is the annual village festival held in a field, a gymkhana and so on. Such use would normally be exempt under the regulations but an occasional use may arise that was not envisaged and that is the reason for the amendment.
Amendment agreed to.
Section 38, as amended, agreed to.
SECTION 39.
I move amendment No. 328:
In page 59, subsection (2)(a)(iv), line 14, after “buildings” to insert “, provided such infrastructural works are completed within the life of the permission or within one year of the expiration of the relevant permission”.
This section places a limit on the period of a planning permission and the period within which planning has to be carried out. However, subsection (2) exempts certain categories of development from the expiration requirement including development comprising buildings only some of which have been completed. It is proposed to extend the application of the expiration period to roads, services and open space. I am concerned with the old chestnut of the completion of housing estates where among the matters that have been problematic through the years are the non-completion of roads, open spaces, public lighting as so on. Take the case of a housing estate that is half finished. If it were fully finished the expiration period would come into play, in other words, all the ancillary work would have to be completed within a period of time, but because it is not fully completed there is an exemption from the expiration period. Where housing estates are not fully completed this provision will be used as a loophole to beat the expiration period and the limit on the duration of the planning permission. The amendment seeks to close that loophole.
This amendment would require the ancillary or incidental works to be completed within 12 months of the expiration of the relevant permission. We all have a certain sympathy with this because it is desirable that any such works be completed as quickly as possible. However, the amendment is unnecessary in the light of the position that will pertain following the passage of the Bill. We discussed the matter of unfinished estates earlier in the debate and the heavy penalty that will be imposed in that they might not be given further permissions. As regards enforcement, under the Bill local authorities have a great incentive to make sure they enforce planning permissions. If they do not do so, at the end of the seven year period or the end of the planning permission they will be liable for all the works the builder leaves undone. This provision has been in place since the 1982 Act. The Deputy's concern seems to be with cases where the builder gets planning permission, commences to build the estate but at a very slow pace and in year five of the planning permission still has outstanding works.
It is not that common these days but in the late eighties and early nineties it was quite common to have a builder start a scheme of houses——
I do not wish to interrupt the Deputy but is he talking about where, anecdotally, a builder gets planning permission for 35 houses, builds 34 of them, does not complete roads or lights or leaves them in a poor state on the basis that his planning permission will expire?
Yes. I can see this being exploited. The Bill provides for better enforcement which obviously puts a greater responsibility on the planning authority. Section 39 effectively provides for the lapsing of the planning permission if it is not acted on. I can see it being used as a loophole. There were a number of these cases. I can think of one estate close to where I live where all the houses were not sold and the roads and public open spaces were not completed by the builder. The case continued for years and went to the Construction Industry Federation and so on. One of the sanctions that could be applied is that the planning permission would lapse but the Bill provides for the reverse. It states that the lapsing provisions in the planning permission cannot be invoked in those circumstances because all the houses have not been completed. The builder has permission for 35 houses and builds 17 or 18 of them. I know there are enforcement measures but the sanction that if the builder does not complete all the works that make the place habitable the permission will be lost is important. However, the Bill states the builder will not lose the permission by virtue of the fact that he has not finished all the houses.
I am informed that what the Deputy seeks is achieved in the Bill. Section 39(2)(iv) states:
. . . in the case of a development comprising a number of buildings of which only some have been completed, in relation to the provision of roads, services and open spaces included in the relevant permission and which are necessary for or ancillary or incidental to the completed buildings.
It does not apply to that.
What is the point in making——
The main permission for the building lapses but the permission for these ancillary works does not.
Perhaps I have missed something.
The builder loses the planning permission for the unbuilt houses.
He loses it for the unbuilt houses?
But he keeps the permission for the obvious reason that he still has to complete the rest.
Where does it state he loses permission for the houses?
Under subsection (1) which states:
Subject to subsection (2), a permission granted under this Part, shall on the expiration of the appropriate period. . . cease to have effect as regards -
(a) in case the development to which the permission relates is not commenced. . . . .
Subsection (2) shall not apply.
That clarification solves the problem. My concern was that the builder would hold the permission for the houses and it would be almost an incentive for him.
Amendment, by leave, withdrawn.
Section 39 agreed to.
Section 40 agreed to.
SECTION 41.
I move amendment No. 329:
In page 61, between lines 13 and 14, to insert the following subsection:
"(6) Any decisions made by a local planning authority permitting extensions of the appropriate period under subsections (1) and (5) may be appealed under section 36 to the Board who in its absolute discretion can decide to confirm, confirm with conditions or refuse such extensions of the appropriate period as it considers appropriate.”.
This concerns extending the life of a planning permission. If it has not been acted on the applicant can apply to have it extended. What I propose is that the application to have it extended should be subject to appeal to the board.
The effect of this amendment would be to allow the decision of a planning authority to extend the period of the planning permission to be appealed by any person to An Bord Pleanála. I cannot accept this amendment. A planning authority can extend the duration of a planning permission only in certain very limited circumstances. These include that the development has commenced and that substantial work has been carried out. Such an extension would be to enable the development to be completed.
However, the major decisions, land use, the effect on adjoining property and so on would have been taken in the context of the decision to grant the planning permission. It is not necessary that the decision to extend this should go through the same procedure again. In effect what we are talking about is allowing the development to be completed and I do not believe that should be the subject of an appeal to An Bord Pleanála. In many cases it will be to finish the development to the satisfaction of all concerned.
Amendment, by leave, withdrawn.
Section 41 agreed to.
Section 42 agreed to.
NEW SECTION.
I move amendment No. 330:
In page 61, before section 43, to insert the following new section:
"43.-(1) If the planning authority considers that it is expedient that any permission to develop land granted under this Part should be revoked or modified, it may serve a notice in accordance with subsection (3) on the applicant and on any other person who, in its opinion, will be materially affected by the revocation or modification.
(2) A planning authority shall neither revoke nor modify a permission under this section unless the development to which the permission relates no longer conforms with the provisions of the development plan.
(3) The notice referred to in subsection (1) shall-
(a) refer to the permission concerned,
(b) specify the provisions of the development plan to which the permission no longer conforms, and
(c) invite the person or persons served with the notice to make written submissions or observations to the planning authority within the period specified in the notice (being not less than 4 weeks from the service of the notice) concerning the proposed revocation or modification.
(4) A planning authority may decide to revoke or modify a permission and, when making its decision, shall have regard to any submissions or observations made under subsection (3)(c).
(5) Where a planning authority decides to revoke or modify a permission under subsection (4), it shall specify in the decision the provisions of the development plan to which the permission no longer conforms, and the main reasons and considerations on which the decision is based.
(6) A person served with a notice under subsection (1) may, at any time within 4 weeks of the date of the decision, appeal to the Board against the decision.
(7) Where an appeal is brought under this section against a decision, the Board may confirm the decision with or without modifications, or annul the decision, and it shall specify the main reasons and considerations for its decision.
(8) The power conferred by this section to revoke or modify permission to develop land may be exercised-
(a) where the permission relates to the carrying out of works, at any time before those works have been commenced or, in the case of works which have been commenced and which, consequent on the making of a variation in the development plan, will contravene the plan, at any time before those works have been completed,
(b) where the permission relates to a change of the use of any land, at any time before the change has taken place,
but the revocation or modification of permission for the carrying out of works shall not affect so much of the works as have been previously carried out.
(9) A planning authority may at any time, for stated reasons, by notice in writing withdraw a notice served under this section.
(10) Particulars of a decision made under this section shall be entered in the register.
(11) The revocation or modification under this section of a permission shall be a reserved function"."
Acceptance of this amendment involves the deletion of section 43 of the Bill. The section has already been discussed with section 67.
We discussed this before in detail.
The effect of the new section is to limit the circumstances in which a revocation or modification may be possible. As I understand it, under the 1963 Act a revocation or modification was possible where there was a change of circumstances, for example, a demographic change of some kind. This will limit it to solely to where there are changes in the development plan. I am expressing concern about that limitation. I may wish to return to this on Report Stage.
As regards the threat of surcharges on members, will the Minister consider abolishing this old Victorian provision? No other people in the local government service are faced with the prospect that where they exercise their functions lawfully and make a decision they are entitled to make under legislation they can be faced with a surcharge or the threat of it. It arises quite often and has arisen recently in the context of proposed modifications or revocations of planning permissions. It is used, as was acknowledged when we spoke about it before, generously by county managers who do not want local authorities to consider revocations. We should consider that before we deal with the Local Government Bill.
That is a matter best discussed on the Local Government Bill. Local authorities are not the only bodies that do this. I recently had a file in relation to a harbour authority on which I had to make a decision on expenditure. If members of local authorities exercise their functions lawfully and with due regard to the circumstances and facts laid before them they need have no fear of surcharges. The threat of a surcharge arises when someone acts irrationally and there is no logic to what he is doing. Perhaps the way to approach it is to provide that instead of surcharges people can take actions against them. That is something we can look at in the context of the Local Government Bill.
This Bill protects members against surcharges if they act reasonably. If there is a change in the development plan they can revoke the planning permission "with immunity". The Deputy is correct regarding revocations, it was a change of circumstances in the 1963 Act. We are limiting it to changes in the development plan. The reason is to try to give certainty to those involved in planning decisions.
Amendment agreed to.
Amendments Nos. 331 to 335, inclusive, cannot be moved.
We can discuss the issue of surcharges again under the local government legislation.
Amendment Nos. 331 to 335, inclusive, not moved.
Section 43, as amended, agreed to.
SECTION 44.
I move amendment No. 336:
In page 63, subsection (2), line 9, to delete "ten" and substitute "10".
Amendment agreed to.
I move amendment No. 337:
In page 63, subsection (3), line 10, after "interest" to insert " including a public or community interest".
Why does the reference here relate only to an "interest" in the land and not as we have seen elsewhere a "substantial interest" or anything of that kind?
The Deputy's amendment would have the effect of explicitly allowing a person with a public or community interest in land which a local authority proposes to acquire for use as open space to appeal that proposal to An Bord Pleanála. The purpose of the section is to ensure open space is made available for the community. I do not envisage people appealing local authority proposals.
Except perhaps where a local community interest wished to build a community facility on the land. I agree that a local authority should have the power to acquire land for open space, and that happens regularly. However, many housing estates have plenty of open space but do not have community facilities such as sports centres or community halls. A disagreement could arise between a local authority and a community interest group about the use of a piece of land and the type of use that would be most appropriate for the community.
We are talking about acquiring the land to provide open space; we are not talking in terms of acquiring open space in order that something can be done with it.
If the local authority acquires a piece of land to make it available for use as open space, is it conceivable that the local community might prefer a community centre to be built on the land rather than having it as open space? As I stated previously, many housing estates have plenty of open space but very few community facilities. Typically and unfortunately, local authorities do not have a direct function in providing community buildings on the land they acquire.
We are changing that in this Bill and local authorities will be enabled to provide community facilities. I know what the Deputy is getting at but the section is only intended to allow the developer to appeal a decision if he or she feels too much land is being taken for community purposes. I do not believe this is the right place for the type of amendment being tabled by the Deputy.
I am aware of at least one instance where the issue raised by the Deputy is a bone of contention in regard to a particular housing estate. There was a tacit understanding on the part of the local authority that if it applied for planning permission, the question of ownership of the land would not be a major problem. However, one awkward individual, who lives adjacent to the estate, has objected on the basis that the land is open space which belongs to everybody and, therefore, nobody can do anything with it.
That is part of what I am getting at. I take the point that there is a different interest in question in this section. I hope the Minister has the same concern for people who believe too much land is being taken from them when we reach Part V of the Bill.
My sympathy would always lie with the community rather than the speculator.
Amendment, by leave, withdrawn.
Section 44, as amended, agreed to.
SECTION 45.
Amendment Nos. 338 and 339 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 338:
In page 65, lines 21 to 23, to delete subsection (5).
Amendment Nos. 338 and 339 propose the deletion of subsections (5) and (6) from the section. These subsections provide for a right of appeal to An Bord Pleanála where a local authority requires the removal or alteration of a structure or the discontinuance of its use. Am I correct in thinking a local authority would normally require the removal, alteration or discontinuance of use of a structure only where such a structure had not been properly authorised in the first instance?
That is not necessarily the case. If a person were carrying out a certain type of business which was not in breach of the planning Acts but which a local authority felt was inappropriate in the particular location, it can order a person to cease conducting business at that location. It could be argued that could interfere with a person's right to earn a living and, in the interests of justice, it is necessary to allow a person the right to appeal in those circumstances. The Deputy asked whether the issue of removal, alteration or discontinuance applied only to unauthorised development but, as I have pointed out, it has a wider application and it is necessary to provide a right of appeal in those cases.
What is the function of subsection (2) which basically states that subsection (1) shall not apply to an unauthorised structure unless the notice under this section is served after seven years from the commencement of the unauthorised development?
It is necessary to take enforcement action within the seven year period, as outlined in the 1992 Act, but subsection (1) can be invoked outside of that period.
Amendment, by leave, withdrawn.
Amendment No. 339 not moved.
I move amendment No. 340:
In page 66, subsection (10), line 4, after "offence" to insert "and the provisions of subsection (9) shall not apply”.
The Minister will probably say this amendment is badly worded. The intention of the amendment is to make it clear that where the circumstances outlined in subsection (10) arise, there would not be any question of paying costs to the person arising from the demolition, removal or alteration of a structure.
I understand the rationale behind the Deputy's amendment but, as he has admitted on a number of occasions, his drafting skills may not be up to the Attorney General's standards.
How very kind of the Minister to remind me of that.
Who bears the costs involved in the event of a structure having to be demolished?
The local authority bears the cost in particular circumstances, not in all circumstances but in the circumstances provided for in this section. Where someone erects an unauthorised structure and ignores the planning laws, he is eventually ordered to take it down and must comply within the seven year period at his own expense. This applies outside the seven year period.
Amendment, by leave, withdrawn.
Section 45 agreed to.
Amendment No. 341 not moved.
Section 46 agreed to.
SECTION 47.
Amendment No. 342 not moved.
Amendments Nos. 343 and 344 will be discussed together.
I move amendment No. 343:
In page 66, subsection (1), line 43, to delete "the development and provided by or on behalf of" and substitute "development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of".
The development contribution schemes drawn up under this section will have a general application to all development within the functional area of the planning authority and will fund general infrastructure works benefiting development. My amendment which seeks to remove the word "the" and breaking the direct link between a particular development and particular public infrastructure better reflects the objectives of the section. The amendment makes it clear also that the contribution is for public infrastructure which has been provided or is to be provided and which will benefit the development. This was not sufficiently clear in the original draft.
Amendment No. 344 seeks to emphasise that special contributions are directly linked to particular developments as opposed to the general nature of schemes. I am trying to make it clear that there are two types of contributions. A special contribution might relate to a major roads interchange while general contribution relates to the provision of infrastructure.
Amendment agreed to.
I move amendment No. 344:
In page 67, subsection (2)(c), line 6, before “development” to insert “particular”.
Amendment agreed to.
I move amendment No. 345:
In page 67, subsection (3)(c), lines 23 and 24, after “contribution” to insert “or no contribution”.
The Deputy will be pleased to know that we preferred his amendment No. 345 to amendment No. 342. Therefore, I accept the amendment.
Amendment agreed to.
Amendments Nos. 346, 347 and 348, inclusive, not moved.
I move amendment No. 349:
In page 67, subsection (6)(a), line 44, to delete “giving notice” and substitute “the expiration of the period for making submissions or observations”.
The time period for the manager to prepare a report on the development contribution scheme should be four weeks after the period of making such submissions, not after the publication of notice.
Amendment agreed to.
Amendments Nos. 351 and 352 are alternatives to amendment No. 350 and will be discussed together by agreement.
I move amendment No. 350:
In page 68, lines 13 to 23, to delete subsection (8) and substitute the following:
"(8) The establishment of a development contribution scheme shall be a reserved function.".
I do not understand how amendment No. 351 is an alternative to amendment No. 350. They are completely different issues.
If you accept one, you cannot accept the other.
Amendment No. 350 seeks to make the establishment of a development contribution scheme a reserved function.
It is deleting subsection (8). This amendment states that the establishment of a development contribution scheme shall be a reserved function, but the adoption of such a scheme is in effect a reserved function. The procedures set out in subsection (8) are the procedures that operate under Part X of the 1994 planning regulations. The scheme goes ahead unless the elected members decide by resolution to vary it or not to go ahead with it. That procedure has worked well in relation to Part X and I do not see any reason it should not work effectively here. On the basis that the spirit of Deputy Hayes's amendment is included in subsection (8), I ask the Deputy to withdraw the amendment.
In the context of the other local government Bill, it would be useful if the Minister could produce an updated compendium of the reserved functions.
Amendment, by leave, withdrawn.
I move amendment No. 351:
In page 68, subsection (8)(b), line 21, to delete “the next following meeting” and substitute “6 weeks”.
This section sets out the procedure to be followed in making a draft scheme for development contributions. First, there will be an advertisement, followed by a period of six weeks within which submissions can be made. The draft scheme will then be sent to the Minister.
Amendment agreed to.
I move amendment No. 352:
In page 68, subsection (8)(b), lines 22 and 23, to delete ", provided that members have had at least one week to consider the report".
Amendment agreed to.
I move amendment No. 353:
In page 68, subsection (10)(b), line 38, after "section 34” to insert “or any other person”.
This amendment relates to appeals to An Bord Pleanála. Subsection (10)(b) states that an appeal may be brought to An Bord Pleanála where an applicant for permission considers that the terms of the contribution scheme have not been properly applied in respect of any condition laid down by the planning authority. I wish to widen the entitlement to appeal to cover any person. The principle has already been established that not just the applicant but third parties who have paid their fee and made a written submission to a local authority should be able to appeal to An Bord Pleanála. The appeal should not be confined solely to applicants. There may well be third parties with a direct interest in the development contribution issue who may want to appeal if they feel it is not being properly applied.
This would allow an applicant to appeal to An Bord Pleanála where he believes the terms of a development contribution scheme have not been properly applied. That scheme will be a public scheme, democratically decided by the members of the local authority. It is very unlikely that a local authority will not apply to the benefit of the developer the scheme the members have agreed themselves. The situation will not arise where third parties will have a proper interest in the matter.
Appeals by the applicant will also be rare because the development contribution scheme will be clearly laid out for everyone to see. It will bring clarity and transparency to the whole system. It is right, however, that when an applicant for permission considers that the scheme has not been properly applied he should have an opportunity to appeal to An Bord Pleanála because it could cost the applicant a substantial amount of money. If a person feels the rules have not been properly applied, it is only right that he should be able to appeal.
The only circumstances in which a third party might want to appeal would be if the local authority is in breach of its own development contribution scheme. If it is in breach of its own scheme to the detriment of the developer, the developer will appeal, but if it is in breach of its own contribution scheme on the other side by charging the developer too little, it is penalising itself by receiving less than it should from the developer. I cannot see that situation arising.
If a county manager was in cahoots with a developer and decides to seek a development contribution which is considerably less than that provided for in the contribution scheme and a member of public suspects this is the case, surely that member of the public is entitled to appeal to An Bord Pleanála on the grounds that the scheme is not being properly applied?
A member of the public could go to his solicitor and initiate judicial review proceedings.
Why should a member of the public have to go to such extremes when the developer can simply go to An Bord Pleanála? It is not a legal issue.
It is a legal issue because the contribution scheme is agreed by the members, it is the policy of the local authority and should be applied by the manager in the manner decided by the local authority members.
Yes, but the developer has recourse to An Bord Pleanála, as does the applicant. A third party does not have recourse to An Bord Pleanála.
Let us suppose there are two or three planning applicants in a particular domain and one gets permission and development contributions are levied. The second or third developer might feel that this developer has not been sufficiently levied and, consequently, the remaining levies will fall disproportionately on them. There are grounds for a third party appeal in that situation. There are cases where this can arise and there should be recourse to An Bord Pleanála for a third party as for the applicant.
An Bord Pleanála has taken a particular line on this, It has struck down a number of decisions on schemes but sometimes managers and councils think of a number to decide what they will charge by way of development levies. If a builder or developer is in a hurry and this is the only outstanding issue he will not appeal it but, instead, will add it to the price of the development.
We are providing for a transparent system where the public will know exactly how charges are arrived at and how contributions will be levied. If there is a crooked county manager, it would become apparent quickly that the manager was not applying the scheme. A member of the public would have the right to a judicial review and members of the council also have the right to take the manager to task by using section 4 procedures or other procedures if the manager was not discharging his functions. It could be referred also to the local government auditor.
I have grave reservations about allowing for third party appeals relating to a matter concerning a developer and a local authority on the basis of a decision arrived at democratically by the members of a local authority. Going by past experience, if the third party right of appeal was allowed in these cases, every single case would be appealed to An Bord Pleanála and it has enough to do.
That would not be the case. The Minister says that there will be a scheme in place which has been arrived at democratically. The grounds for any such appeal would have to be that the scheme was not being applied correctly. Those would have to be the grounds of appeal for an applicant as well. If the applicant is entitled to appeal, others should have the right to appeal. Many appeals by applicants are made in relation to conditions and to the development contributions they are asked to pay to local authorities. This is unlikely to be the basis of most, or many, third party appeals to the board.
I have outlined some situations in which a legitimate third party appeal could arise. It is not fair that one party to a planning application has access to the board and other parties who may have comments or objections to make have not. Let us suppose, for example, a third party makes an appeal to the county council based on his fear that a scheme of 20 houses to be built at the end of a cul-de-sac will reduce water pressure in the area. Let us suppose a decision is made to grant permission and a contribution is levied. If the third party feels that the contribution scheme has not been correctly applied he should have the right to appeal to the board.
In such a circumstance, a third party may appeal to the board on the basis set out by Deputy Gilmore, that water or sewerage infrastructure is not adequate. During the course of the appeal it may be pointed out that provision has not been made in the contribution levy scheme to deal with the water problem. I am sure that is something the board would take into account when issues of planning, land use and infrastructure are involved.
He cannot invoke the contribution scheme.
If the third party points out that the development contribution for water and sewerage stipulated by the council is based only on the 20 houses in the scheme and does not take account of certain other factors, he cannot make that argument to the board. He could go to the board and say that water pressure will be reduced. He might even say the contribution is not sufficient but he could not use the argument that in granting the decision the council had incorrectly applied the contribution scheme. He would be prohibited from doing so.
He would not be prohibited from doing so. The board can consider everything. However, we are talking about a charge which is levied on a developer on the basis of a public scheme. The likelihood of a local authority selling itself short on such a scheme is small, particularly in the current circumstances. I am aware of the abuses which have crept into the planning appeal system, of which we have seen very good examples in the recent past. If we allow third party appeals in matters which are, essentially, between a local authority and a developer we will open the floodgates for a series of appeals to An Bord Pleanála which will do very little except clog up the system.
The contribution scheme will set everything out clearly. It does not necessarily apply to the immediate area of development. Development contributions will be of a general nature. There will be general contributions and specific contributions. The general contributions will go into a local authority fund to be used for general development purposes in the local authority area. They may not be site specific because it would be much better if the scheme could be applied throughout the local authority area. I am not convinced by the Deputy's argument. We have gone a good way towards making this scheme more transparent and giving both the developer and the local authority a fair chance. I cannot imagine a local authority selling itself short. I do not propose to accept the amendment to allow these decisions to be appealed to An Bord Pleanála.
Amendment put and declared lost.
Amendment No. 354 not moved.
Amendment No. 355 is consequential on amendment No. 356. Both may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 355:
In page 69, subsection (13), line 35, after "(13)" to insert "(a)”.
Subsection 10(c) allows a development to proceed while any dispute over the levying of a contribution under the contribution scheme is before the board, as long as the applicant gives security to the planning authority for the full amount of the contribution. These amendments allow for the same thing where there is a dispute about the levying of a special contribution.
Would the security required be the full amount of the contribution, without prejudice as to the final decision of the board?
Amendment agreed to.
I move amendment No. 356:
In page 69, subsection (13), between lines 41 and 42, to insert the following:
"(b) Notwithstanding section 34(8), where an appeal referred to in paragraph (a) is received by the Board, and no appeal is brought by any other person under section 36, the authority shall make the grant of permission as soon as may be after the expiration of the period for taking of an appeal, provided that the person who takes the appeal furnishes to the planning authority, pending the decision of the Board, security for payment of the full amount of the special contribution as specified in the condition referred to in paragraph (a).”.
Amendment agreed to.
I move amendment No. 357:
In page 69, lines 42 to 44, to delete subsection (14) and substitute the following:
"(14) (a) Money accruing to a local authority under this section shall be accounted for in a separate account, and shall only be applied as capital for public infrastructure and facilities.
(b) A report of a local authority under section 50 of the Local Government Act, 1991, shall contain details of monies paid or owing to it under this section and shall indicate how such monies paid to it have been expended by any local authority.".
This amendment inserts a new paragraph which obliges local authorities to account for their income and expenditure from development contributions in the local authority annual reports. The amendment further enhances the transparency of the development contribution system. It will also be helpful to local authority members by allowing them to know exactly how much is going into the account.
Amendment agreed to.
I move amendment No. 358:
In page 70, subsection (15)(c), line 4, after “recover” to insert “from the person required to pay the contribution”.
This amendment is designed to ensure the original person would be required to pay the contribution. If an argument about a contribution lasts for some time it is possible that another person - not the original developer - may become involved. It would be unfair if the planning authority was to go after the successor in title for the contribution.
Because of the way the amendment is worded, it is the original person who would be caught for the contribution, even where they had sold on the land to another developer.
What we are talking about is a development contribution. If a person applies for planning permission a development contribution is payable, where specified by the local authority on the basis of the scheme. This is paid by the person who makes the application.
Yes, but if the person concerned decides, having obtained planning permission, to sell on the property the contribution should be paid by the person who starts the development. There is merit in the amendment; I was not clear on what the Deputy was proposing——
I want to ensure the contribution is paid.
The contribution is paid by whoever owns the land in respect of which planning permission is obtained.
Let me put it another way. Have there been any difficulties in recovering development contributions from persons who were not the original applicants? In cases where a development contribution was specified and the land was sold on before the development commenced, have there been any difficulties in recovering the contribution from the person who bought the land?
No. It is always stated as a condition that the contribution must be paid prior to the commencement of the works. A problem may arise however in the case of a quarry. In previous cases a certain amount was levied per year. While I now have a clearer picture of what the Deputy has in mind, I would like to think about the matter because the amendment may encourage companies to go into liquidation to avoid the payment of a development contribution. I will seek advice on the matter and clarify it before Report Stage.
In some local authorities - this is linked to amendment No. 357 and part of the reason I tabled amendment No. 358 - there have been difficulties in tracking development contributions. A party colleague of Deputy Gilmore - a councillor - put a lot of work into this matter in north County Kildare to discover what contributions had been levied and how many had been paid. It emerged during the course of her investigations that there were a number of cases where it appeared no contributions had been paid or the contributions paid were considerably lower than the amounts levied. It proved very difficult to track them. That is what caused me to table the amendment. It seems that part of the problem arose from the fact that lands had been sold prior to the commencement of development and there was an argument. When company B took over the land it said that company A should have paid the contribution, that it was not liable for it.
What is the position where a development levy is imposed and demanded following the completion of works to an existing building in respect of which planning permission is sought?
I am not a legal expert but, depending on the planning permission, the development levy should probably have been paid by the person concerned before the work started. If he or she failed to do so he or she is in breach of planning permission. As the works are completed it is an outstanding charge on him or her and the local authority should pursue enforcement. The Chairman probably wanted me to say the person concerned need not worry about the charge.
That is not the point; this is a very controversial case in which the person concerned has already paid a development levy in respect of water and sewerage. There was an additional charge in respect of parking. The development contribution was charged on completion of the works.
I do not want to be quoted in court - I do not know the case to which the Chairman is referring - but if it was not made a condition when planning permission was sought I do not think the local authority has any say in the matter but if the person concerned proceeded with the building work without planning permission——
The person concerned obtained planning permission.
If that is the case it should have been laid out clearly as a condition. In urban areas it is normal to levy a charge in respect of water and sewerage connections and car parking spaces. At one stage the levy was about £1,500 per car parking space in County Meath. This should be laid out clearly in the planning permission. Perhaps the person concerned sought an alteration to the planning permission.
Amendment, by leave, withdrawn.
Amendment No. 359 not moved.
I move amendment No. 360:
In page 70, subsection (16)(a), line 9, to delete “2 years” and substitute “6 months”.
Why are planning authorities being allowed two years?
We are talking about a maximum period, an upper rather than a lower limit. Most local authorities will move very quickly as it is the means by which they will obtain their capital contributions. We do not want to impose a condition on them that they cannot fulfil within a period of six months. However, a number of issues arise - housing strategies, revision of development plans and so on. Given the amount of work, a six-month period would be too short. Two years is a maximum from the commencement of that section of the Bill. I do not want to impose too onerous a time scale for this element.
I agree that local authorities will be pretty busy before too long. Not only will this Bill affect them, but if and when the Local Government Bill comes in, they will have to adopt a corporate plan, a three-year rolling capital investment plan. It involves five levels of planning. I would have thought that, since they will be doing so much planning, it would be an essential part of the preparation to have a development levy scheme.
I agree with the Deputy. That is the first thing they will do. What Deputy Hayes wants is for us to impose an obligation on them to do it within six months. I am saying we should allow some flexibility but make it clear that it should not go beyond two years. The amendment is unnecessary. That is the first thing they will go for, because it means money to them.
I will make representations on the Minister's behalf to Deputy Hayes.
Amendment, by leave, withdrawn.
We now come to amendment No. 361 in the name of Deputy Gilmore. Amendments Nos. 363, 364, 367 and 368 are related. They will be taken together by agreement.
I move amendment No. 361:
In page 70, subsection (17), line 19, to delete "and facilities" and substitute "facilities and amenities".
This batch of amendments is an attempt to widen the matters for which the development contribution scheme can be made. In the first instance, I am trying to widen the definition "public infrastructure and facilities" to public infrastructure, facilities and amenities", and to include educational and health provision. We know from experience that one of the issues which very often arises, particularly in relation to large housing developments, is the absence of school, child care and nursery school provision. There is a requirement for a community contribution, for example, to the provision of schools, which the Department of Education and Science requires for funding. It is not always possible to assemble that community contribution in the way it used to be assembled. The old way was for one or other of the churches to arrange the schooling. That does not happen automatically any more. We have new developments, particularly housing developments, with no school provision, often for many years, and people in new areas having to bus their children out and try to find schools all over the place.
The same applies in relation to the provision of child care. The provision of child care in communities is now a major issue. We need to widen the concept of the development contribution to ensure that this is part and parcel of the total physical and social infrastructure of an area which is required in order for people to be able to live in it.
I have also mentioned in one of the amendments the need to refer to Luas. We have mentioned bus ways, bus interchanges, bus lanes, cycle ways and so on. There is mention of public transport in a general sense but Luas, particularly in Dublin, has a particular meaning and context and should be specifically referred to in the Bill.
I am not sure exactly where this group of amendments is going. I have the greatest sympathy with what Deputy Gilmore has said about education and health provision. Perhaps I am anticipating the Minister, but I would think that including education and health facilities in development levies in a Bill like this would be a very sideways means of bringing about a very substantial revolution in the financing of educational and health infrastructures. The idea is right but, based on my experience of operating a public finance system, it would require something other than a provision in a planning Bill to produce the kind of situation, which is very desirable, where large scale development of new areas would not take place without a proper phasing or convergence of the provision of amenities where most of the cost of those amenities is borne by the public purse. Schools are the example which arises most often. I am not sure that a development levy in planning is really the best way to address that. A requirement of this kind it would require the State to accept the expenditure consequences of it.
I have some reservations too about including in development levies provision of parks and wildlife reserves, because it will not always be relevant to an area where a development is taking place. A nice infill development in the centre of a city or large town might seem to the local authority to be a good opportunity to get some money for parks, wildlife reserves or greenways some distance away. They might be of interest to the people who reside there, but they should not have to pay particularly for them just because they happen to be the development that is taking place when the local authority gets that idea. That the kind of happenstance of development levies is not the way to do this.
Nor would it be appropriate for railways or Luas. God knows what is happening to Luas in the Government's plans now. It seems to change its mind about it every couple of months. The latest situation as far as I can make out is that it is still the intention to build the Sandyford to St. Stephen's Green line, and God knows what will happen apart from that. It may go underground. It may not. It may go in a loop or it may not. If one looks at the possible Luas routes, there are large areas of those routes where development will not take place, because they are already developed. It seems a bit arbitrary that if, for example, an infill development happened near a Luas route, the corporation could impose a hefty swingeing development levy contribution to be paid to Luas, especially when it is not the Corporation that will be building it.
We need a far more integrated approach to the provision of facilities in line with development, but development levies do not really provide the means of doing that. Development levies are properly used to the purposes for which local authorities are competent, for things that come within the remit of the planning authorities. To move outside of that would be dangerous, probably unfair and largely arbitrary.
Before the Minister replies, Deputy Dukes and I have not had a dispute about a matter connected with this Bill for some days now.
That is a fairly good record.
To take up those points, let us take a commercial development, an industrial development, a business park or something of that kind. The overwhelming majority of people who will work in that facility will have a requirement for child care facilities. There are two ways of providing them, either it is conditioned into the planning permission that there should be some facility for child care or, if the public authority is to make the provision, there will be a development levy. That is one scenario. A second scenario would be based on education. If a housing development is built, schools will be needed. Because of the way in which society and the organisation of society has changed recently the way in which schools have traditionally been provided is no longer the same. Therefore, there will have to be a new type of intervention for the provision of schools. The type of schools people are seeking is also changing.
On the point about Luas, if a new suburb is being built and it is in order for the council to charge a development levy towards the provision of roads, which is for motor transport, then it is reasonable that it should also have the power to make a contribution to public transport generally or specifically to Luas in the Dublin area.
(Interruptions.)
That is another issue. I know the point Deputy Dukes is making about confining development levies solely to those issues which are currently within the remit of the local authority. The problem is that the areas and the issues which impact on development and on which development, in turn, impacts, such as education, transport, health care and so on, are not dealt with by local authorities. Therefore, we may have to widen the catch both in respect of conditions attached to planning permissions and as a consequence in the development levies sought.
I will not make a dispute of this. There are grounds for some further reflection here. I am sorry if I am detaining the Minister from taking up something he wants to take up. I agree with the thrust of what Deputy Gilmore is trying to do. For example, my party has recently proposed something which we had set about putting in place in 1986 and that was subsequently dismantled by the Minister's party when the accidents of history brought them back into Government. That was a Dublin transport authority.
It was an election campaign that brought us back in.
It was an accident in history. That was one where you started low and finished a little higher before you got the new——
We have been rising ever since.
We will see. We proposed an integrated transport authority for Dublin. If that had been established and it was an authority that had responsibility for roads, railways and the provision of transport in Dublin for the organisation of competition in the bus sector and so on, it would be appropriate for the Dublin local authorities - Dublin Corporation and the three councils - to consider a development levy which would include an element which would be payable to the Dublin transport authority. There would then be a recognisable link, to which I see no objection.
In regard to the provision of child care and education, Deputy Gilmore's example has shown just how difficult this would be. For example in a substantial commercial development, Deputy Gilmore says many people who will work in such a development will need child care facilities. They do not need child care facilities because they work there. They need child care facilities because they have children. It would seem rather odd if a commercial development in the docklands had a development levy or part of a development levy slapped on it to pay for the cost of child care provision for people who live in Clondalkin, Dundrum etc. If it were to be made a condition of a planning permission——
It would make the difference between their wanting to go home at 3.30 p.m. and going home at the normal finishing time.
I do not think we should have a commercial development in the docklands but that is another day's work. If, on the other hand, it is a condition of planning permission for a commercial development that child care facilities be provided in situ that is appropriate because those who work there will have the choice of either using child care facilities in the place where they work or making an alternative arrangement at home. They know the conditions on which they made that choice. Equally, it would seem wrong for Dublin Corporation to make a development levy on a commercial development in the city to provide for national schools for children who could be living in Drogheda, Mullingar, Navan, Trim or Athy. The connection between some of the uses proposed here for development levies and the actual location of the work is far too random for it to be appropriate to link the things in the way proposed. On the other hand I have to say, since I forgot to say it the last time, that amendment No. 369 in the name of Deputy Hayes which deals with traffic calming measures would be appropriate in a development because he knows there will be traffic.
The one thing we should not forget when speaking about development levies and so on and developers paying these levies is that it is those who buy the houses who pay these levies because they are passed on by the builders. Therefore, the wider the concept of the development levies the more people will pay for their houses. There was a furore recently about land registry fees and the impact they would have on house prices. I am not aware of the specific charges involved and I will not comment but they would be nowhere near the level of increase in house prices which would be necessary if we were to include schools, education facilities and so on. That is something to keep in mind.
The section provides that development contributions can be attached to a planning permission in relation to infrastructure provided by or on behalf of a local authority. That is the basis of what we are talking about. Therefore, they can be levied for busways provided by a local authority but not for Luas or rail provided by CIE. Perhaps I can deal sequentially with the amendments. On amendment No. 361, I am not clear what amenities would be covered that are not already covered by facilities. I suggest we might either now, or on Report Stage, include amenities under subsection (17) (b),page 70, line 22. I am not sure it adds a great deal there either, but it may. Generally speaking, facilities cover amenities and so on.
I listened with great interest to the debate between Deputy Gilmore and Deputy Dukes on amendment No. 363. That amendment would enable planning authorities to include the capital costs of providing education and health facilities in the development contribution schemes. I know what the Deputy means in that housing estates can bring with them an increased demand for schools, health centres, child care facilities and so on. Originally, I gave consideration to whether those facilities should be included in the development contribution schemes but after giving it some thought, I concluded that they should be confined - and Deputy Dukes has experience in this whole area - to local authority facilities being provided by local authorities.
Local authority facilities like roads, water and sewerage are vital to allow new development to go ahead. Obviously, the need for other facilities such as schools and hospitals may arise and, in many cases, do arise from new developments but they are not needed to allow the developments to go ahead. That is what we are focused on in this Bill. Deputy Dukes is right. If we are to change that, we are talking about a much broader area and it deserves broader consideration.
There is also the question, if we are providing a contribution levy for health centres, schools and so, of how those contributions would be handled because local authorities do not provide those services generally. They would have to account for the money, transfer it to the relevant bodies and so on. It was for some of those reasons that I concluded that the contribution to facilities and infrastructure should be for those provided by the local authorities themselves. The obvious point is that the more the development contributions are levied on people, the higher the prices of houses will go, although I know that would apply to other developments as well.
In relation to amendments Nos. 364, 367 and 368 on parks, wildlife reserves, rail, including Luas, and railways, waterways and greenways, the current wording is sufficient to cover any of those facilities if they are provided by the local authorities. I am considering amending this section, in consultation with the PPP unit in the Department, to make sure that we can allow contributions to be levied towards infrastructure that is provided for the local authority on a PPP basis. Unfortunately, I have not been able to conclude the examination of that matter but I am considering it and I may bring forward an amendment on Report Stage to cover that area.
Is the Minister saying he will accept amendment No. 369?
We have not come to that yet. I know I am getting tired but I am not that tired yet.
I think the Minister is proposing to incorporate it into section 17(b), and I will accept that.
I will move the amendment to the amendment now, Chairman, and we will pass it on in writing to the committee.
I move amendment No. 1 to amendment No. 361:
In page 70, subsection (17)(b), line 22, after “facilities” to insert “and amenities”.
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
Amendments Nos. 362 to 364, inclusive, not moved.
Amendment No. 365 is in the name of Deputy Gilmore. Amendment No. 371 is related they may be discussed together by agreement.
I move amendment No. 365:
In page 70, subsection (17)(c), line 23, after “provision” to insert “and improvement”.
What is comprehended by this amendment is the provision of roads, car parks, car parking places, etc. I am also seeking the improvement of those facilities because what often arises in relation to a development is not the provision of roads, car parks and so on but the improvement of existing facilities and it is not clear that the contribution levy will cover improvements. If it does, I am happy but I do not think that is currently the case.
My amendment will meet the Deputy's concerns in that regard. Paragraph (a) provides that development contributions can be used for the refurbishment, upgrading, enlargement or replacement of sewers, waste water and water treatment facilities, drains or water mains. My amendment will extend that to include roads, car parks and car parking facilities, so it covers the point the Deputy has made.
Amendment, by leave, withdrawn.
Amendments Nos. 366 to 368, inclusive, not moved.
I move amendment No. 369:
In page 70, subsection (17)(d), line 29, after “facilities” to insert “, traffic calming measures”.
Amendment agreed to.
Amendment No. 370 not moved.
I move amendment No. 371:
In page 70, subsection (17)(e), line 31, after “of” to insert “roads, car parks, car parking places,”.
Amendment agreed to.
Section 47, as amended, agreed to.
SECTION 48.
Amendment No. 372 is in the names of Deputy Gilmore and Deputy Ó Caoláin. This amendment is the first on the white list of additional amendments and is in substitution for amendment No. 372 on the principal list of the amendments circulated on 11 April 2000. Amendment No. 373 is an alternative to amendment No. 372 and No. 374 is related, so we will discuss amendments Nos. 372, 373 and 374 together, by agreement.
I move amendment No. 372:
In page 72, subsection (4)(b), lines 3 and 4, to delete “and that the applicant has a substantial interest in the matter”.
At issue here is the right to seek a judicial review. Under the Bill as drafted an application for leave to apply for a judicial review can be made only if the applicant can show he or she has a substantial interest in the matter that is the subject of the application. By definition, that limits the right to seek a judicial review and limits severely the right of access to the court. It raises the issue of what is a substantial interest. While a planning applicant would have a substantial interest, the question arises as to whether a third party would have a substantial interest. Would the courts consider a substantial interest to be a material interest? What about issues such as environmental concerns? Are they regarded as being of a sufficient or a substantial interest in the matter to justify a judicial review? My amendment proposes to delete the reference to the applicant having to have a substantial interest in the matter that is the subject of the application to be enabled to seek a judicial review.
The purpose of this amendment is to delete the words "and that the applicant has a substantial interest in the matter". How does one have and who makes the determination in respect of the word "substantial" in this case? No one would take the course of action addressed in this section, that is, to seek a High Court determination of a matter arising out of an appeal to An Bord Pleanála, for light hearted or foolhardy reasons. Such a course of action is extremely important, serious, expensive and has all the fraught elements that are obvious. The reference to the applicant having a substantial interest in subsection (4) should be deleted as it is a further impediment to a right to a final court of appeal, which would be the High Court in this instance, and it should be open to people to take that course of action. I strongly support Deputy Gilmore's earlier comments and urge the Minister to accept the amendment presented.
I have similar reasons for tabling amendment No. 373. It revolves around the question of the definition of the word "substantial" and who defines what is a substantial interest. I note a provision in the Minister's amendment No. 374 to subsection (4)(c)(ii), although I am not sure I have grasped the significance of it. It seems to provide that leave shall not be granted unless the applicant shows to the satisfaction of the High Court that in the case of a person other than a person to whom the previous clauses apply there were good and sufficient reasons for that person not making objections, submissions or observations as the case may be. I take it that is in relation to the original planning application. If that clause can be interpreted in the way it seems to be capable being, it appears it will allow persons other than those defined in the previous clauses to make an application to seek a judicial review. If that is the case, it seems to meet the intent of my amendment and the amendment in the names of Deputies Gilmore and Ó Caoláin. If I am wrong in my reading of it, which I might be, I would like to know, because if the Minister’s amendment addresses what is proposed in the other two amendments, we can proceed by accepting his amendment. Specifically, is the effect of the provision in the Minister’s amendment in relation to subsection (4)(c)(ii) that a third party who is not the applicant, as set out in subsection (4)(c)(i)(I)(II)(III)(IV) and (V), has a right to seek a judicial review?
I will expand on this matter. The Deputy's interpretation of the provision in my amendment to subsection (4) is right, provided that the person ensures that he or she has a good reason and that he or she was not one of the persons outlined.
The person would have to give a definition of that and the court would have to decide that. A court could decide on the basis of the reasons mentioned earlier by Deputy O Ó Caoláin, although I cannot anticipate what it might decide in such a case. Deputy Gilmore outlined other reasons, which could be deemed by the court to be sufficiently good reasons the person did not become involved in the procedure. With regard to the Deputies' amendments and my amendment, I have consistently said that I do not believe a substantial interest is a mere property involvement and I do not think the court will interpret it that way. It could mean a person could be affected personally by a development or that person has taken an active part in the decision-making process from the early stages and has not become involved in the procedure in terms of making an objection to the court for whatever reasons at the last minute.
Having listened to the debate on this section and having received various submissions on it, my amendment clarifies the matter. It is one of a number of amendments arising from the recommendations of the Cabinet committee on infrastructural development on its consideration of infrastructural matters by local authorities, An Bord Pleanála and the courts. The intent of the changes is to streamline the provision of infrastructure, but they provide that one must show one has been a participant in the decision-making process whether at local authority level, An Board Pleanála level or some other level. If a person does not get involved in it and then applies to the court for a judicial review, he or she must show the court, which was the point that Deputy Dukes asked me about, that they have good and sufficient reasons for not getting involved prior to that. While we can speculate on what might happen, we cannot spell it out clearly as the court decides on this matter. Where a person could show he or she did not know about a planning application because site notice was not put up or he or she had missed the chance to make a submission or appeal to the board for a variety of reasons such as being away or working abroad, a court might deem such reasons sufficient. However, that is a matter for the courts.
Some people said a substantial interest would be interpreted by the courts as being a substantial property interest, etc. However, that is not the case. The amendment is based on some of the case law with which some Deputies will be familiar. It is designed to address decisions of the courts, the most famous of which was in the Lancefort case. There were also a number ofother cases, including the Malahide community council case. The Deputies' fears in relation to people being excluded are addressed in my amendment.
The Minister's view is that it is conceivable that a person who did not make an observation or a submission on the original planning application and who did not appeal a planning decision to An Bord Pleanála could still be covered by the umbrella of subsection (4)(c)(ii).
Yes, specifically under (4)(c)(ii). It specifically covers that.
Must the person referred to in (4)(c)(ii) have a substantial interest?
That brings us back to the nub of the argument. Categories one to four are clear in terms of who is covered by them, while the fifth relates to local authorities. However, outside those, the person who can go to the courts is somebody who has a substantial interest and substantial resources to enable him or her to do so.
A substantial interest does not necessarily mean a property interest.
So the Minister says, but that is not in the Bill. Is substantial interest defined in the Bill?
Amendment No. 374 states that without prejudice to the generality of paragraph (b), which refers to a substantial interest. One is a subset of the generality.
One must still have a substantial interest.
That could be partaking in the process.
That is not stated in the Bill.
One cannot define substantial interest there as participation in the process because subsection (4)(c)(ii) relates to the case of a person where there were good and sufficient reasons for him or her not making objections, submissions or observations as the case may be. This relates to people who did not participate in the process before. If paragraph (c) is subsidiary to paragraph (b), and, as Deputy Gilmore said, paragraph (b) requires a substantial interest, it appears that to qualify under (4)(c)(ii), one must have a substantial interest.
These are only some of the definitions of a substantial interest.
That is without prejudice to the generality, but the generality requires a substantial interest.
Yes, but among the items which can be defined as a substantial interest is, for example, a property interest. As a result of the Lancefort case, I presume that an environmental concern is also a substantial interest. People might have other substantial interests. That is the generality. In addition to that generality, some specific examples of what a substantial interest might be are given to make it clear that such an interest is not only a property interest.
One of the specifics is somebody who made his or her observations to the local authority and participated in the process earlier. That is deemed to be a substantial interest. However, they are not exclusive substantial interests. A person who did not participate earlier can get in provided he or she can show that there were good and sufficient reasons for him or her not making objections, submissions or observations as the case may be. People who did not make submissions earlier are covered in the generality.
Subsection (4)(c)(i)(I) to (V) relates to a participant in the earlier stages of the process while (4)(c)(ii) accommodates those who may not have done so for what are described as sufficient reasons. However, all that is built on the foundation of the earlier stated position that there must be a substantial basis for him or her seeking to pursue that line of inquiry. This is the fundamental issue in the amendment. I accept the spirit of the Minister’s amendment but it does not negate or address the substantive argument, which proposes the deletion of the phrase that the applicant has a substantial interest in the matter, in amendment No. 372.
Regarding the courts' decisions, Order 84 of the Rules of the Superior Court requires a person who intends to take an action to have a sufficient interest in what is taking place. The courts do not simply allow people to take judicial actions or reviews. The Bill states that a person must have a substantial interest and we are trying to ensure that is not interpreted narrowly by the courts. Specific definitions are provided which are intended to guide the courts that a substantial interest includes participation in the process.
I am trying to figure the difference. Our argument is for the elimination of the reference to substantial interest but the Minister's amendment makes it clear that the applicant, prescribed body, anybody who writes to a local authority or anybody who participates in the process will be able to seek a judicial review. Anybody who is not covered by that measure can also do so, provided he or she can show that he or she had good and sufficient reasons for not lodging objections. Who is excluded now between that and the complete exclusion of the substantial interest reference? Would it not be simpler to accept the amendment?
Anybody who does not have a substantial interest is excluded.
That is the point. The question that arises then is what will the courts say. We can go on all night about this.
Perhaps the Deputy would be interested in a late night sitting.
I most certainly would not.
When the Minister referred to rule 84 of the superior courts, he mentioned the rules of a court requiring that people have a sufficient interest. If the courts refer to a "sufficient interest", why is the Minister now saying "substantial" in the Bill? I do not know what the wisdom of these things is, but "sufficient" would seem to be a less constraining test than "substantial". I notice that clause 2 states: "In the case of a person other than a person to whom clauses 1, 2, 3, 4 and 5 apply, there are good and sufficient reasons. . . ". The word "sufficient" appears there.
Apart from the question of sufficient or substantial interest, will the Minister consider whether in clause (c)(ii), the Minister might not need to make a reference to an appeal in addition to “objections, submissions or observations” for the sake of completeness.
I will have a look at that.
If the Minister wants a qualification of the interest, why not use the term "sufficient" since that word is used in the text and it appears in the court rules.
The term "substantial interest" comes from the judgment in the Lancefort case.
Is that a good recommendation for it?
When one is trying to base a provision in a Bill on a Supreme Court decision, it is generally considered good enough to employ the language that is used in the judgment. That is my understanding of the matter.
Yes, but one does not know whether the court might not think a less stringent test is appropriate in another case. I know the Minister is on safe ground if he uses the language of the court in a particular case.
Does that not necessarily mean the court would have refused where the link was less obvious or less close.
The Deputy will appreciate that I would prefer to stick as closely as I can to the language of the judgment. The other side of this argument - and we must face up to the fact - is that people are abusing the system as it is. This is clearly not an attempt to prohibit anybody's right to go to court, but it is designed to try to ensure that people do not abuse both the planning system and the courts system, as has occurred. Deputies will be well aware of stories about people appearing out of the woodwork at various stages of the planning process to try to extort some money from people who are trying to pursue developments. That happens more in the case of appeals to An Bord Pleanála than in the courts. However, there have been a few cases where "men of straw" - the Deputy has heard the phrase - have been put forward to make objections and take judicial review cases. They have no reason to be there other than to delay and frustrate development. While I can appreciate the Deputy's concern that we should not limit the rights of citizens unreasonably, the other side of the case has to be made also - that we should not allow people to thwart projects that are for the common good. This arose in relation to infrastructural development and the need to advance the national development plan. It is a reasonable balance. We should not lose sight of that when we talk about an individual's right because there are also community rights. The common good must be served, but it is not served when people have a right to hold up developments, willy-nilly, that are obviously for the public good. I have moved this amendment to try to balance those two aspects. It is a reasonable amendment aimed at meeting the Deputy's concerns about individuals' rights on the one hand, while, on the other hand, ensuring that developments are not held up indefinitely and indiscriminately by those who have no interest other than in delaying them.
The Minister's amendment is fine as far as it goes, and I am not saying this in a niggardly way, but he has evoked community or public rights. That is precisely the reason for being worried about the difference between substantial and sufficient. It is perhaps also a reason for proposing the deletion of the word "sufficient". There is a perception that the word "substantial" is narrow enough to exclude any consideration of public or community rights in seeking a judicial review. Therefore, by requiring a substantial interest the Minister may be excluding the consideration of public or community rights in seeking a judicial review.
My intervention is prompted by the Minister's contribution which brought to mind a community viewpoint, to which Deputy Dukes also referred. I am thinking of a specific instance in my constituency where somebody is acting on behalf of a community. How would he or she be adjudged in terms of the word "substantial"? The Minister may know the specific instance to which I am referring and which came to mind during the Minister's comments. That is no less a legitimate and important right that is worth defending. It is critical. I appreciate that the Minister and the committee members have put in a very long day. There are many important elements involved in this matter so I would appeal to the Minister not to make a quick decision on it because it merits further consideration.
We will conclude the meeting there because we have gone over the time and we gave a commitment not to do so. I thank the Minister and his officials from the Department of the Environment and Local Government for their input. I also thank the committee members for their contributions. As agreed, we will resume our consideration of the Planning and Development Bill tomorrow, 11 May, from 2 p.m. to 5 p.m.
The Select Committee adjourned at 8.20 p.m. until 2.00 p.m. on Thursday, 11 May 2000.
