Planning and Development Bill, 1999 [Seanad]: Committee Stage (Resumed).
Debate resumed on amendment No. 409:
In page 89, subsection (4)(c), line 39, to delete “more” and substitute “less”.
The Minister indicated yesterday that he would table an amendment in this regard on Report Stage. That would address half my concern on this issue which prompted me to table this amendment. The effect of the subsection 4(c), as it stands, would be to cap the total amount of land that would be zoned for social and affordable housing in all forms at 20%. My amendment proposes to set 20% as a minimum figure in respect of land for social and affordable housing. While the Minister claimed my interpretation of the subsection 4(c) was wrong, he acknowledged there may be some difficulties with it, as it stands, and that he would return to it on Report Stage, which I appreciate.
There was discussion yesterday about the genesis of the 20% figure, that figure was first proposed by my party and it came to be accepted in the course of time. In the period since the Bill was published and the proposal was first made, given what we know about the extent to which people on modest incomes cannot afford to buy their own homes, and examples of such cases were given yesterday, the figure of 20% may be too low. We may need to reconsider that figure. I will await the Minister's Report Stage amendment to address the concerns I outlined yesterday.
I note what Deputy Gilmore said, but I do not know whether the figure of 20% is too much or too little. The original figure proposed was 15%. My concern, which is the subject of amendment No. 411, is that, to use the Minister's term, he may be trying to take too big a bite here.
The reference in subsection 4(c) is to 20% of land zoned for residential use or for a mixture of residential and other uses. If one were to use the figure of 20% of land zoned for a mixture of residential and other uses, one would be taking more than 20% of the land zoned for residential use. If 100 acres were zoned for a mixture of residential and other uses, such as amenities, and only 80 acres of that land were zoned for residential use, the use of 20% of that land zoned for a mixture of residential and other uses would amount to 25% of the land zoned for residential use. I do not know whether that was intentional or that such ambiguity was intended to be written into the Bill. If so, it is a bit sloppy.
We must be clear on what we are talking about. Will the figure of 20% apply to land zoned for residential use only or for residential use and other potential uses? It is not clear what those other uses might be. I may be naive in thinking the reference to other uses would include amenities. I do not think it would include commercial or industrial uses, but if it is zoned for other potential uses, such as amenities, it would be short-sighted in the extreme to take another bite out of amenity land, which might be made available for green spaces, schools or community centres. The wording needs to be tightened up.
My amendment No. 411 proposes to deal with it by removing the reference to a mixture of residential and other uses. I would like the Minister to explain the position, as it is germane to what Deputy Gilmore said.
I will deal with the aspect raised by Deputy Dukes when we come to deal with his amendment on this matter. Amendment No. 419 in my name clarifies what is meant by the wording to which the Deputy referred, which will provide the clarity he has sought. He will gather that from a reading of my amendment.
It is not the intended that the figure of 20% would apply to land zoned for a mixture of uses. We had a long discussion on this matter yesterday. I reiterate what I said in respect to the doubt Deputy Gilmore raised about whether we would set an upper limit of 20% on the amount of land a local authority can require to be transferred at its existing use. It is not intended to cap the amount of land in a local authority area that can be used for social and affordable housing. We intend to ensure there is no doubt about that.
Section 81(2) provides that nothing in section 81(1) shall prevent any land being developed exclusively for social and affordable housing. I think that covers the position, but I will make it clearer by tabling an amendment in this regard on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 410 is in Deputy Dukes's name. Amendments Nos. 412, 413 and 416 are cognate and they may all be taken together by agreement. One decision will suffice in respect of amendments Nos. 410, 412, 413 and 416; however, if the Deputy so requests separate decisions can be taken.
Amendments Nos. 410, 412 and 413 are essentially the same amendment. If the Minister accepts amendment No. 410, as I am sure he will, amendments Nos. 412 and 413 immediately fall. What were the other amendments the Chair had in mind?
Amendment No. 416 is essentially the same amendment. If amendment No. 410 is accepted, amendment No. 416 will fall.
I agree to take them together.
Is it agreed that one decision will cover this group of amendments? Agreed.
I move amendment No. 410:
In page 89, subsection (4)(c), line 40, after “land” to insert “to be”.
This amendment seeks to deal with the arguments that have been made since the Bill was first mooted about difficulties that would arise from the procedures the Minister proposes. They have been described by others as a smash and grab raid on land that is the subject of applications for permission to build houses.
The effect of this amendment would be to bring this provision into force from the time the local authorities draw up a housing strategy and zone land that has not hitherto been zoned for these purposes. It was the suggestion of the Irish Home Builders Association during the course of a meeting with this committee a couple of months ago. In effect, the amendment provides that land which is currently zoned and is the subject of applications would be left outside the remit of the Bill. The 20% figure would come into operation from the date the Bill takes effect to applications and zonings made from that date.
The advantage of the amendment is that it would remove the possibility of potential constitutional challenge or argument on the basis of the acquired rights of people who already have land that is zoned and have applications pending. It would overcome the problem of the valuation of land that was the subject of applications at the date the Bill was introduced. It would make the position clearer for people who intend to make applications to have land zoned, if those applications come from outside the planning authority, and it would leave the housing or planning authority free in its approach to zoning land in the context of its next development plan. In all cases, it would allow the local authority to secure the community gain from the value of land to be zoned for housing.
Although it does not directly arise in connection with the provisions of this Bill, we should be aware that these provisions can be seen to some extent - this would be an important dimension for some housing authorities - as an addition to the other means local authorities have of acquiring land. There is a particular problem in the Dublin area where pressure on land is probably greatest and where, as far as I am aware, none of the housing authorities currently has a land bank of any significance in the context of the problems they are facing. Most other local authorities, however, have the option of drawing up the housing strategy, zoning land and acquiring up to 20% of the land under the method I have proposed which would result from this amendment. They can also simply buy land on the market and subsequently zone it. They can compulsorily acquire land. The provisions of this Bill, therefore, are not the only means of access to land available to local authorities.
That would be a better way of dealing with the housing crisis. The Government, so far, refuses to recognise that there is a housing crisis. The Minister would not put measures such as this before the House if there were not a housing crisis. However, for the last two and a half years the Opposition has consistently asked the Minister to acknowledge that there is a housing crisis and he consistently refuses to do so. County managers throughout the country agree that there is a housing crisis. They know they are not within an ass's roar of being able to take the type of measures needed to meet the housing needs in their areas.
To be fair, I have not heard this Minister be so obdurate on the subject but the Minister of State, Deputy Molloy, bullheadedly refuses even to contemplate that there is a problem. Deputy Gilmore, Deputy Hayes and I are aware of this from listening to him at Question Time in the House. When we ask the Minister of State to acknowledge that there is a housing crisis the only response we receive is half an hour of flannel, the rubbish we constantly hear about what is being done with regard to serviced sites, building in the private sector and how many more houses are being built. None of it makes an impact on the problem.
The virtue of approaching the problem in the way I propose is that we could tackle the housing crisis without having the baggage of possible constitutional claims of interference with property rights and other such claims. The Opposition is not unanimous that we should approach this in a way that does not make a new incursion into property rights and I respect the fact that other people believe there are other ways of dealing with it. I believe it is unwise to infringe on property rights in the way the Minister proposes here. My proposal achieves most of what the Minister set out to do but in a fairer way because none of it can have started before the Bill comes into effect. It would avoid many difficult rows which could conceivably end up in the courts, despite the proposed system of arbitration, and leave many people feeling sore without any progress being made in tackling the housing problem.
I invite the Minister to consider whether it would not be wiser to ensure that in the new system being proposed it is made clear that it is a legitimate condition in the granting of a planning permission for residential development that there be a proportion of affordable housing in the development. Let us avoid the poison that will result from the rows there will be about the incursions into property rights in the Bill. If it is done in the way I propose, the situation will be much clearer.
Deputy Dukes is correct that there is an unprecedented housing crisis. I agree with him that the Government has been slow, to put it mildly, to respond to that crisis. The measures taken by the Government have been ineffective. The reliance on readjusting the housing market on the basis of the two Bacon reports has been a failure. House prices have continued to increase at rates of between £25,000 and £30,000 per year. Last year the increase in house prices in Dublin was more than 20%.
The Government's argument is that if supply was increased, house prices would level. Supply has been increased. More than 46,000 housing units were produced last year but house prices have continued to increase. The level of housing output in the State is close to the 50,000 units per year which everybody acknowledged, on the basis of the ESRI report, would be required. That output is not making the expected impact on price. Moreover, close inspection of the figures demonstrates that the proportion of social housing being produced is less than it ever was.
Land is a huge factor in the price of houses. In the hearings the committee held earlier this year, a number of presentations identified land as one of the major contributing factors to the increase in house prices. Some of the groups that made submissions, including the CIF and the IHBA, told the committee that site costs were now approximately 50% of the price of a new house. This is clear from statistics produced last week by the Department of the Environment and Local Government, which show that, according to the index, the cost of building is increasing only at the rate of inflation or slightly above it but houses prices have shot ahead of the cost of building by approximately 100 points over a three or four year period.
I cannot agree with the approach Deputy Dukes proposes to take in relation to the amendment. His proposal is that the 20% arrangement for social and affordable housing would apply only to newly zoned land. If I understand it correctly, it would not apply to lands already zoned for housing. The Deputy said there is a danger that, if it applied to land already zoned residential, it would infringe on the property rights of landowners and also that there is a consequential danger of legal challenge to the provision. I do not accept those suggestions for a number of reasons.
There is a constitutional right to the ownership of land as property. However, it is another question whether there is a constitutional right to the ownership of the benefit that is conferred on that land by virtue of the decision of the public authority to zone it. A decision in the greater Dublin area to rezone land might increase the price of an acre of agricultural land from £10,000 or £20,000 an acre to, in some cases, approximately £1 million an acre. It does not follow that the decision of the public authority to zone the land confers an additional constitutional property right on the landowner.
It is wrong to assume that the setting aside of 20% of land for social and affordable housing is a take from the landowner. It must be put in the context of the additional benefits the owners of residential land have been receiving, particularly over the past couple of years. For example, there has been the effect of the Minister's residential density guidelines which have increased residential density on existing residential zoned land.
I attended a meeting of the planning committee of my local authority this week which considered land which was originally zoned at a density of four houses per acre. The committee was considering a planning application for residential development at a density of approximately 20 houses per acre which appeared to be based on the Minister's residential density guidelines. An additional benefit has been conferred on landowners by virtue of the residential density guidelines and the 20% provision must be placed in that context.
The effect of the last budget also must be taken into account. Two budgets ago the Government decided to reduce the rate of capital gains tax from 40% to 20% on residential development land. This was extended to all development land in the last budget. The theory was that if capital gains tax was reduced for a number of years, it would cause the release of land for development at a faster rate. The rate of capital gains tax has now been reduced on all development land so the margin of benefit on releasing it for residential purposes does not apply.
This has been a significant gain for landowners, particularly at this time. The capital gains tax they are required to pay on the sale of land has, in effect, been halved. By any standard, this is a significant gain for landowners. The point was made at the conference of the institute of planners last week that the rate of capital gains tax on zoned land should be increased rather than reduced. It was suggested that it should be increased to 80% because of the windfall gains which are conferred by zoning.
I do not have much sympathy for people or organisations which appeared before the committee and complained that the Bill would be a smash and grab operation regarding the owners of development land. Landowners have done particularly well because of decisions taken by Government and public authorities over the past number of years. If there is an issue about possible knock-on effects on house prices, the way to deal with it is to either control prices or tie the 20% measure to capital gains tax, the increase in residential density or any of the other benefits which are flowing to landowners as a result of decisions made by Government.
I do not agree with Deputy Dukes's proposal that the measure should apply only to newly zoned residential land because much land has already been zoned residential and this is the land which will come up for development in the foreseeable future. If the measure is confined only to newly zoned land, its effect will be much less than what we would hope.
The merit of Deputy Dukes's proposal is that the position would be clear cut at the time of rezoning by councils during discussions on their development plans and the recommendation of planners or submissions from landowners or other property owners for the rezoning of land. The landowner would know that, if he or she made representations or his or her land was included in proposals for rezoning, automatically he or she would lose up to 20% of it. He or she would know at the time and there would be no ambiguity or doubt about it.
Deputy Power yesterday advocated a similar provision. He also stated there was an understanding in Kildare that that would be the case, although I do not know the nature of the understanding. On the basis of Deputy Gilmore's comments, it might be a good idea to nail the myth promoted by developers, auctioneers and others that land value is driving up house prices. Land will only make £1 million an acre in city centre, tax designated areas, but the value of newly zoned development land at the edge of Galway city has increased to £200,000 an acre.
If an acre costs £200,000 and the previous rate of density of 12 houses per acre applies, the cost of a site will be approximately £16,000. If the new density rate, which was introduced following the Government's acceptance of the Bacon report, applies, there would be 20 units per acre and the cost of a site would be reduced to £10,000. If an acre cost £300,000, the equivalent cost of sites would be £12,000 or £15,000. It is myth to state that the value of land is driving up house prices. The price of houses has increased by much more than the increase in the value of land. House prices have increased by £60,000 or £70,000 in Galway over the past two or three years. Land price is not the only factor.
I am not clear about another aspect. From my experience as a member of a county local authority and particularly a city local authority, where land is more valuable, there are cases when councils are adopting development plans that land is zoned in a particular way because of the sensitivity of the area or the height of proposed buildings. When councils are adopting their development plans they zone some lands because of the sensitivity of the location and the height of proposed buildings. In such sensitive areas we zone land for low density housing at a fixed zoning rate because there is a good bit of unserviced land within the borough area. Low density development can involve zoning for one or two houses per acre where sewerage services are available. The Bacon report cannot or should not change such fixed elements of a development plan. That report referred simply to land zoned as residential where the maximum permitted density is now far greater than it was previously. What happens, however, within a development plan to areas that are zoned as low density? Will the local authority be obliged to acquire up to 20% of that land? In any case, if the authority acquired 20% of land zoned as low density - that is, one house to the acre - it is not nearly as beneficial to the local authority. Such land would be almost useless to a local authority, except perhaps for a development comprising many amenities.
Does the 20% rate apply to low density land zoning as well as to ordinary residential zoning in a development plan? There are many matters which we have to work out before we can come a conclusion as to the best way to approach this issue in a watertight manner. The 20% principle is a good one but we have to work out how we can achieve it more smoothly and for the benefit of the local authority which needs the land for affordable social housing or council housing. I do not know whether we will be able to adopt those amendments. It would be easier, however, if everybody knew the local authority will have the right to acquire up to 20% of land automatically when people are applying for permission or when their land is being proposed for rezoning. There would not be any fuss about that due to the added benefit to the landowner from the services that will be provided over the next five years, during the life of the development plan. If I was in that position I would be very glad to hand over up to 20% of my land.
As regards the last point, anybody who owns land with the potential for development is aware that as soon as the Bill is passed and the housing strategies are in place, they will be required to hand over up to 20% of that land at market value, or at a particular price.
Would it not be better for future zoning that the 20% be handed over at something different than the market price? I am not talking about the present, but so that people would know exactly where they stood in future.
We tend to talk about market value but we are discussing the land's existing use value. Anybody, including a developer, who has land "taken off them" - we can use all the pejorative terms that the IHBA and the Construction Industry Federation have been using - or has land that is affected by the Bill, will receive the price they actually paid for the land if they purchased it before 25 or 26 August 1999. They will not be at a loss.
What if a person got the land from his father or grandfather?
That point has already been raised and is dealt with in a later amendment. When up to 20% is sought under the terms of the Bill, landowners will be paid the price per acre that they paid for the land. Anybody who bought land after that date in August 1999 will be paid at existing use value. Therefore, if it is agricultural land they will be paid at the agricultural rate, even if the land has been re-zoned for housing. There is no loss to the landowners who were aware that was going to happen after that date in August 1999. They have had plenty of advance notice about it. If somebody was foolish enough to pay over the odds for land after that date, I am afraid they will have to sit on the blister. However, there are very few foolish builders or developers. I have not come across too many of them, anyway, during my 12 years in public life.
They are not inclined to give their money away.
I cannot accept this amendment. The intent of it would be to postpone the provisions of Part V of the Bill. In effect, we would be saying that everybody who has land zoned at this time would be able to build on it and we would not be able to apply the 20% social and affordable housing clause of Part V. Because some local authorities have just finished their development plans, we would be saying that for the next five years in some cases, we would not be in a position to apply the provisions of the Bill. That will not help the current situation with regard to house prices and availability.
Deputy Dukes said it would be better to allow local authorities to apply compulsory purchase orders and, of course, that is a power.
It is another way of proceeding, a way which already exists.
Yes, and there is nothing to stop local authorities from doing that.
They should do it if they have a need for a housing bank. I have no difficulty with that, but the provisions we are discussing are aimed at ensuring that there is some repayment to the public concerning zoning and re-zoning decisions made by local authorities, and that they will be used for the benefit of the wider community. These provisions also relate to the Government's desire, which is shared by everybody in the House, that we should revert to a situation where we have more socially integrated housing throughout the country. That is an element of Part V of the Bill that we should not forget.
Deputy Gilmore is correct; all this crying from builders and developers that they are being screwed, has to be put into the context of increased housing densities - in some cases, 60% higher than was previously permitted. This means that builders will make more per acre, with the prices they are charging, than they did prior to the introduction of this legislation. Up to the time the housing density guidelines were implemented a builder would be entitled to build eight houses to the acre. If a builder had 100 acres, for example, he would have been entitled to build 800 houses. However, with the increased densities, that person can build up to 1,200 houses on that land. The guidelines were designed to try to reduce house prices or at least leave them at affordable levels, but I must agree with Deputy Gilmore that builders have not adjusted their prices to take account of that fact. This 20% will not involve a loss to builders and those selling houses.
In addition, the capital gains tax rate was reduced to 20% for building land, etc. That is a big advantage to the person selling land. That was done for a simple reason, to try to release more land onto the market. There are indications that that has worked. There is a catch, however, that is, that within two years from next year's budget the capital gains tax will increase to 60% on this kind of land. Most people have forgotten about that, but it was clearly spelt out at the time.
I do not want to labour the point, but two views were expressed at the committee this morning. On the one hand there was the view that high land prices are causing house price increases and on the other hand there was the view that they are not, but land prices are causing some measure of increase in house prices. I do not have a problem with private enterprise and people making a profit, but there is the other element in this. It is not solely land prices which are driving up the price of houses, there is profiteering. There are people making a quick buck because they see the opportunity. That is caused, as I stated on umpteen occasions, by a lack of supply and demand being much higher than supply. That brings us back to trying to ensure that the supply is increased as much as possible. We have been somewhat successful. While I berated the building industry on a number of issues and would continue to berate it about different things, and while one can say that builders make more money if they build more houses, in fairness, the industry has geared up well. Record numbers of houses were built in the past four or five years. We still need to achieve European housing levels per head of population and our levels are below the average, but we are building houses much faster than any other country in Europe.
There is a balance to be kept in all these matters. With not only Part V but all the other matters to which we referred, the Government is trying to get the balance right. I accept it is not easy. There are no simple, straightforward answers. If there were, we would have implemented them a long time ago. We are tackling the causes of high house prices and we will continue to do that. This legislation is one linchpin in our efforts in this regard and, as I said before, the sooner we get it enacted and commenced, the better it will be for everybody.
The Minister stressed the value of the social mix. Can we legislate for this or must it be done solely on a voluntary basis? We have tried to do this in Galway, where the developer would provide up to 20% of the houses in scattered locations throughout the development, as required by the local authority, rather than build up a land bank in one location, such as, Knocknacara or Ballinfoyle. If the builder hands over 20% of the land to the local authority, he will be offering it the potential to build between 350 and 400 houses according to current zoning. This will create another ghetto because we will end up with 350 local authority houses in one area and one thousand or so private houses in another area. Is there any provision for integrating the 20% throughout the development or is that an option which the developer can choose on a voluntary basis, which one developer has taken up in Galway?
On the new accepted rezoning levels to which the Minister referred, where, for example, 800 houses could previously be provided on 100 acres and now the number can be increased by 50%, what are the rules governing the new density level in existing estates? For example, the estate in which I live was built 30 years ago. Does the new rule apply there? Under the new density guidelines, can people get permission for three and four storey apartments in an established area rather than in a newly zoned area? That is becoming a difficult problem in existing housing estates, where developers are buying a couple of houses, knocking them down and putting up 14 apartments which are not consistent with what was there previously. I am not saying it is right or wrong, but I want to know what is the regulation in that regard?
The Minister made the strongest case possible for rezoning. He indicated that not enough land has been rezoned and that the lack of supply has increased the price of land. This is something which some of the media have missed in the recent controversy about rezoning. Rezoning has become a dirty word whereas it is a legitimate function of the members of the local authority. Not only is it a legitimate function, but they have an obligation to ensure that there is enough land rezoned in their local authority area to meet the demand for housing for the next five years. The ability to service that land is a matter for the Minister's Department, where great strides are being made.
I am glad the Minister stated that rezoning is not a dirty word and that it is a necessary function which is one of the duties that must be faced by the members of local authorities. Sometimes they must make difficult decisions in the belief that enough land should be provided in cases where residents and others object or resist rezoning greenfields in their area. It is a difficult balance which must be struck and sometimes local authority members must take difficult decisions. I am glad that has been clarified this morning.
The Minister objected to my proposal largely on the grounds that this will postpone Part V. What is the rush with Part V? What will it do which cannot be done already? The Minister agreed that local authorities can acquire land on the open market or can compulsorily acquire land without making a housing strategy?
They cannot get it at existing use value. They can acquire it at market value.
They can acquire land on the market or can compulsorily acquire land, and they will pay the going rate. If they wish, they can compulsorily acquire agricultural land and subsequently rezone it and build houses on it. That has been the classic way local authorities outside Dublin have gone about building housing estates and it is a course of action which remains open to them.
I understand - perhaps my understanding of planning law is wrong - that when the Bill comes into force local authorities which recently put development plans in place will be obliged to draw up housing strategies which will require them to allocate or plan for land not catered for in those development plans to be devoted to housing. It would be rather unlikely that they would be obliged to rezone land if they are doing their jobs properly, but that option remains open. As Deputy McCormack stated, proposals for rezonings will continue to be necessary. I hope we will not see more of this rather nauseating plámás from the members of some parties who are not in favour of rezoning. Even if these people agree with rezoning, they welcome the opportunity to gain political Brownie points from sniping at other parties and avail of the luxury of standing on the moral high ground. The same individuals look on happily as their parties' supporters move into houses built on the land that was rezoned against their wishes and in the face of their righteous indignation.
Local authorities are already in a position to use the methods to which I refer. However, there is a problem in the Dublin area. I understand - I do not believe the Minister contested this point - that several thousand acres of land have already been zoned for residential development in the four Dublin local authority areas but that these lands are not yet being used. As the committee is aware from information it received and from media reports, given the rate at which this land is being used up, the portion of it that is being serviced will suffice for approximately three years in terms of house building and it will take up to five or six years for the remainder to be used. What kind of housing will be built on that land? Deputy Gilmore and I have tabled amendments which, if accepted, will make it clear to An Bord Pleanála that local authorities, once we can agree a definition of what constitutes "affordable housing", should be entitled to impose as a condition on a planning application for residential development that a proportion of that development be devoted to affordable housing.
The methods the Minister is proposing to put in place - these require the imposition of Part V of the Bill - are already available for use in respect of land that is currently zoned. If the existing methods avoid controversy and the need for people to take legal proceedings, why are they not used? Why should we voluntarily run the risk of a major row erupting? I do not know if a constitutional case will be brought and I am not encouraging anyone to take that route. However, we cannot be sure that such action will not be taken.
The measures to achieve what we desire already exist or are capable of being put in place. If the Minister has doubts about the validity of the approach taken here, which sets out to sanctify the insertion in a grant of planning permission of the kind of condition which would lead to the building of a mixture of ordinary and affordable housing, let him so inform us. If the proposed approach does not work, we must reconsider the position. However, as far as I can see, there is no reason to believe that it will not work.
On those grounds, I see no reason for not postponing Part V of the Bill. I agree with the Minister that that is the effect of what is proposed in this amendment. Acceptance of the amendment would mean that Part V of the Bill would not come into effect in respect of any land that is currently zoned.
There is a need for some coherence in the way we approach these issues. I do not wish to become involved with Deputy Gilmore in a philosophical discussion regarding people's constitutional property rights. However, I must point out that the Constitution recognises the right to property and that there is a property right in terms of the incremental value gained if a piece of property increased in value from its being zoned or rezoned or if planning permission is granted in respect of it. That is why capital gains tax exists. If we did not believe that the owner of a piece of land had any right to the incremental increase in its value which arises as a result of zoning or the granting of planning permission, we would not have a constitutional basis for obliging people to pay tax in that regard. People cannot be made to pay tax on something they do not own.
I accept that the granting of planning permission is the transfer of something of great value to a person. I also accept that the zoning of land also involves the transfer of a great chunk of value to that person - the size of the chunk of extra value depends on the market and existing demand. Regardless of one's principles - be they socialist, capitalist, Fabian or whatever - one must accept that if the market dictates that something is worth more, then it is worth more. Under the Constitution, if one owns that thing which is worth more, one is also entitled to own the increase in the value that comes from being granted planning permission.
The Government's policy in relation to capital gains tax is sheer lunacy, particularly in light of current circumstances. I am not sure, as Deputy Hayes reminded me, we can be fully certain that the increase in the rate of capital gains tax to which the Minister referred will actually apply. The Finance Acts dictate the rate of capital gains tax. The Minister for Finance can inform us what might be the rate of capital gains tax two years from now, but there is no guarantee he will do so.
We do not know who will be Minister for Finance at that stage.
That is correct. We do not know if it would be appropriate for him to do so at that time. However, there is no doubt that the measures taken in recent budgets in respect of capital gains tax are entirely inconsistent with the ambitions of Deputy Gilmore who is determined to find a way to obtain a community benefit from the increment in value. They are certainly inconsistent with that part of the Minister's proposal which involves snaffling a part of this additional asset.
I agree that, in the short-term, one part of what was done about capital gains tax might have had the effect of encouraging people to bring more land onto the market. If it has had such an effect, I would like to see some evidence. I have not seen any evidence which shows that the current Finance Act or its predecessor have brought additional land onto the market. I have also not seen any proof that the special deal which was done to reduce the rate of capital gains tax have been successful in that regard.
In my opinion there is at least a possibility that, in terms of this inconsistent item of policy, the Government has again flunked the test in respect of dealing with the housing issue. If we believe that extra densities will allow builders to make more money, we should not try to expropriate them in advance of that money being made. We should oblige builders who benefit in this way to pay more in terms of capital gains tax. That is the way to deal with their making more money, not by using this extra density in aid as a reason for expropriating more than 20% of the basic property on offer to them. As already stated, the Constitution and our corpus of law recognise that they are entitled to that if they own such land.
The system I propose is much simpler and it has the virtue of relying on provisions that are already there. It has the inconvenience of providing for an increase in capital gains tax. At least I know Deputy Gilmore will agree with that. It is one of the measures which can be taken to prevent excessive profiteering but it could kick back on one because at the end of the day no matter what principles one has or what doctrine one applies or how much one expropriates from people, the total supply of land is fixed. One cannot make any more of it and as sure as God made little apples, there will be tension in the housing market as long as economic growth continues and the population increases.
The Bill sets out not to take tension out of the housing market, because it will not do that, but it decides where the tension comes to bear and if this or any measure to increase the supply of affordable housing as against the supply of the rest of housing works there is another inevitable conclusion. If one succeeds in making more "affordable" housing available, one will inevitably make it more expensive to make "non-affordable" housing available. If the Minister succeeds he will make it more difficult for people to afford houses at the upper end of the market and more people will be pushed to look for houses at the "affordable" end of the market, thereby pushing up the price. Unless one can expand the total amount of land, sooner or later one will run into that problem.
If we are going to increase the supply of affordable housing for an increasing population we must decide that we will build at considerable higher densities and doing so will give the Minister a much better solution economically to the housing problem than what is contained in the Bill, which does nothing to prevent urban sprawl and all the other things that go with it. There is nothing wrong with postponing the implementation of Part V in the manner I propose because local authorities still have plenty of other ways of getting their hands on land. The Minister will not admit that for local authorities to acquire land, whether by purchase on the open market at current use value or by compulsory purchase order, they must be funded to do so, which is not the case at present.
The Bill was published in August 1999 and its provisions do not apply to land transactions before that date. If the land was transacted before the publication date the council could get its 20% for affordable housing on the basis of existing land use. Is that correct?
Depending on the price that the person paid for it——
In other words, local authorities could not afford 20% of the land because they would have to pay the price the developers or land owners originally paid for it. Is that correct?
No, the price involved would be that paid if the land was bought in the early 1990s or four or five years prior to August 1999.
My point is that land does not apply because the local authority would not have 20% of that cost to hand over to the land owner. Is that correct? We are talking about the future.
No, they will have to hand it over as part of this and the local authorities will have to pay for it.
The 20% cost that the local authorities must pay as compensation for land purchased before the date of publication of this Bill will be based on the price the purchaser paid for it. Why would a local authority want to engage in that because it could not afford 20% of the cost?
They will not have any choice and that is not to give a short answer.
This is the key point. On the compensation issue, will local authorities have the capital resources to pay these prices?
The second point is that all the housing under "affordable housing" that we discussed yesterday for eligible persons will not go directly to the provision of social housing, it will also be used for private housing. Is it within the State's remit to pay compensation to a land owner to acquire land when all the houses to be built on it will not necessarily be provided for people on local authority housing lists?
The Fine Gael amendments refer to deleting the social element of housing from Part V, with which I do not agree. We are talking about a mixture of social and affordable housing and the local authority can apply it as it sees fit. There is also provision for agreements and so on. Deputy Gilmore referred some time back in a different context to the difficulty of acquiring land in the Dún Laoighaire/Rathdown local authority area. It is one of the local authority's major problems. It cannot acquire land but under this legislation it will be able to do so because it will be entitled to take up to 20%.
Will that local authority be able to afford to do so on the basis of the Minister's proposals? The cost of land in that area is exceptional.
The money will be made available as it is when local authorities must acquire land for other purposes or when the NRA must acquire land to build roads.
Will they acquire land through their own resources or capital accounts?
They will not be able to afford to do so out of their own capital accounts in all cases. The State will have to assist. As this is social and affordable housing the money will not all go in one direction. Various options will be available to the local authority in regard to how the land acquired for social and affordable housing is used.
This dialogue is useful. I am sorry for taking up so much time but it helps me to understand the legislation better. The provision will not apply to land transactions before the date of publication of the Bill.
It will apply to any planning permission granted for development upon enactment of the Bill and the implementation of the housing strategy. It does not matter when the land was purchased or even if a person has planning permission on land with densities of two or three houses per acre - I am horrified to hear of one to an acre in Galway, I must investigate that.
There is no difference in the compensation paid before the publication date or after it.
That is my point. How can a local authority afford to pay 20% of the value of land transactions before the date of publication of the Bill?
Where will they get the money?
The State is often accused of having too much money.
Will the State fund local authorities——
The State funds local authorities for a variety of housing purposes and for the purchase of land. They have capital accounts which will be combined with the stream of income generated by local authorities from affordable housing. The Bill provides for a separate account for social and affordable housing. We are talking about paying a price for the land, it is not compensation. In the case of land transacted pre-August 1999 the price is that paid by the purchaser. Deputy McCormack's later amendment relates to the value of the land if it was inherited. Post-25 August 1999 one pays the existing use value. If it was agricultural land when it was bought, it would be purchased at that price.
There is a big difference in the compensation before 25 August last.
Most transactions were before 25 August but people will sit on land as long as there is uncertainty. Most of the pre-25 August transactions have gone through and people will feel this will not apply to them because the local authorities cannot afford the 20% compensation as it is such a considerable cost in comparison to the price after 25 August.
They are in for a big shock because the Bill provides that they will have two years after the commencement of the Bill or until 2002, whichever is the later, to build on the planning permissions they have. After that, the provisions of the Bill will apply. There is a major incentive for those who have land to get planning permission fast and build houses.
There is no dispute about the fact that the 20% will apply to all newly loaned land.
As long as the local authority has a housing strategy.
Yes. About 7,000 acres of land has been already loaned in the greater Dublin area. If the landowner or developer gets a planning permission any time between the publication of the Bill last August and the change in the development plan which brings the housing strategy into effect, which presumably will be some time towards the end of next year, that planning permission is out of the loop, provided the foundations are down before the end of 2002. Is that correct?
I would not go so far as to say if the foundations are laid——
The Bill states: "on which the foundations have not been completed". For example, if I own 20 acres of land with residential zoning and I apply for and am granted planning permission, as long as I have the foundations down by 31 December 2002, I am safe from the 20%.
It is not that Deputy Gilmore is safe, rather the draconian provisions of this Bill will not interfere.
This relates to an earlier amendment I put down which sought to bring these provisions into effect immediately. I do not agree with Deputy Dukes that they should be postponed because the housing crisis must be dealt with urgently. The provisions should apply immediately because of the lead-in time which I spoke about yesterday and which could take up to three or four years but also because of this loophole. As long as a development is started before 2002, there will be no 20%.
There are many planning applications to which that would apply.
The 20% cannot be imposed until the housing strategy is in place. Once that happens, the social and affordable housing provisions come into effect. We cannot stop planning and building to wait for these provisions to come into place.
It would be daft to even consider it.
The only way one can avoid what Deputy Gilmore referred to is to stop everyone from building now.
Or else do what I suggested yesterday.
Which cannot be done constitutionally.
One could base it on a national strategy.
We had a long and detailed discussion on this yesterday and today. Generally speaking, the Deputy and I have the same view. He says I am not going fast enough and I say I cannot go any faster. Deputy Dukes and Fine Gael have a severe philosophical difficulty with the Bill's approach.
No, we have a problem with the Minister's method.
I think it is more than that. In their amendments, Fine Gael want to drop the social part of the Bill and abolish the concept of providing affordable houses by this method. I am not prepared to do that and we can stay here until the cows come home——
We could replace it with another method.
Deputy Dukes spoke about using CPOs. There is no basis in law——
I am saying we should put a basis in law.
——to provide for the Deputy's suggestion.
We are passing law here, let us include a basis for it.
If the Deputy puts down an amendment, I will consider it. Deputy Dukes referred to CPOs and agricultural land. We are spending a great deal of time discussing proper planning and development. If local authorities begin to leapfrog and buy tracts of land outside determined boundary areas for development and build houses there, it is not very good——
What kind of land does the Minister think will be needed?
It will be all agricultural land that will be used eventually.
What kind of land does the Minister think will be needed for houses when the Minister finally comes up with his spatial strategy?
The land the Minister will be proposing people should build houses on when his spatial strategy is in place is agricultural land.
Absolutely. Is Deputy Dukes in favour of abandoning all zoning and development around towns and allowing local authorities buy land two or three miles away?
No, I said development should be more clustered than it is at present. Most of it will be agricultural land.
What the Deputy advocated earlier would mean that local authorities would be buying land outside development areas.
Those are the only places where one can get agricultural land which is not zoned at agricultural prices.
The Minister should not fool himself, most of the land which will be built on is agricultural land.
Chairman, I have given at least 45 minutes to the other Deputies and I am entitled to answer their points.
The Minister, without interruption.
The law on CPOs is carefully crafted and one must state why the compulsory purchase of property is necessary. A local authority would have to state it was for housing purposes and suddenly a piece of agricultural land becomes development land, one will still pay development prices. That reverses the Deputy's argument because he suggested that local authorities could buy agricultural land at agricultural prices and rezone it.
As long as we need to build more houses and as long as the population and incomes increase, any type of land will become more expensive. We cannot make more land.
We will ensure in this Bill that at least some benefit accrues to the people and to the State.
My amendment provides for the same.
Put the question, Chairman.
We will suspend until 11 a.m.
Will you not put the question?
I do not believe the Minister's colleagues would be happy trooping over here rather than going to the Chamber for the Order of Business. However, if the Minister wants to do it that way, that is fine.
I will not delay matters if the Chairman is on the point of putting the question. Regarding this constitutional issue, the constitutional right to property is not absolute. It is qualified by reference to social justice and the common good. We need to reflect on the scale of the housing problem in this country. Couples with good solid jobs in teaching, nursing, the Garda, the public service or whatever cannot afford to buy. We are told every day in newspapers that the type of skilled workers we need to attract back into the economy will not return because of the price of houses. We are told hospitals in Dublin cannot recruit nurses because they cannot afford a place to live. House prices have a major impact on what is happening with inflation and what may happen with pressure on wages and earnings. If we are not dealing with issues of common good as regards all those matters which must be factored into any issue concerning the Constitution, I do not know what is meant by "common good". My concern about the debate is not that we should postpone it but that it is urgent. We need to deal with it now, not in three or four years' time when housing strategies are drawn up and not after we leave a large, wide loophole for anyone who is smart enough to use it to obtain planning permission and lay their foundations.
The Committee divided: Tá, 5; Níl, 9.
- Clune, D.
- Dukes, A.
- Hayes, B.
- McCormack. P.
- Mitchell, O.
- Ahern, N.
- Dempsey, N.
- Gilmore, E.
- Haughey, S.
- Healy-Rae, J.
- Keaveney, C.
- Kelleher, B.
- Killeen, T.
- Power, S.
Sitting suspended at 10.44 a.m. and resumed at 11.05 a.m.
I move amendment No. 411:
In page 89, subsection (4)(c), lines 40 and 41, to delete “, or for a mixture of residential and other uses,”.
I mentioned this earlier and the Minister pointed out that he has another amendment. My concern is that if we apply the prescribed percentage to a larger amount of land than is strictly required for houses it is too much. The Minister has acknowledged that is not his intention and I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 80, as amended, agreed to.
Amendments Nos. 412 to 414, inclusive, not moved.
Section 81 agreed to.
Amendment No. 415 is in the name of Deputy Dukes. Amendment No. 644 is related and amendments Nos. 415 and 644 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 415:
In page 91, before section 82, to insert the following new section:
"82.-(1) Subject to subsection (12), where a development plan objective requires that a percentage of any specified land zoned solely for residential use, or for a mixture of residential and other uses, be made available for housing referred to in section 80(4)(a)(ii), the provisions of this section shall apply to an application for permission in addition to the provisions of section 34.
(2) The applicant shall, in any application for permission for the development of lands make adequate provision for housing referred to in section 80(4)(a)(ii) in accordance with the applicable housing strategy for the area in which the proposed development is to be built.
(3) In default of the provision of any or any adequate housing in the relevant application by the applicant for planning permission pursuant to subsection (2), a planning authority, or the Board on appeal, may require as a condition of a grant of any permission that the applicant, or any other person with an interest in the land to which the application relates, enter into an agreement with the planning authority concerning the development of housing referred to in section 80(4)(a)(ii).
(4)(a) An agreement under this section may provide for-
(i) the transfer to the planning authority of the ownership of the land required by the agreement to be reserved for the provision of housing referred to in section 80(4)(a)(ii),
(ii) instead of the transfer of land referred to in subparagraph (i), the building and transfer, on completion, to the planning authority, or to persons nominated by the authority in accordance with this Part of houses of such number and description as may be specified in the agreement at a price determined on the basis of-
(I) the site cost of the houses being calculated as if it was equal to the cost of land transferred to the authority under subparagraph (i), and
(II) the building and attributable development costs as agreed between the authority and the developer, including profit on the costs,
(iii) instead of the transfer of land referred to in subparagraph (1), the transfer of such number of fully or partially serviced sites as the agreement may specify to the planning authority, or to persons nominated by the authority in accordance with this Part, at a price determined on the basis of-
(I) the site cost of the sites being calculated as if it was equal to the cost of land transferred to the authority under subparagraph (i), and
(II) the attributable development costs as agreed between the uthority and the developer, including profit on the costs.
(b) Where an agreement provides for the transfer of land, houses or sites in accordance with paragraph (a), the houses or sites or the land, whether in one or more parts, shall be identified in the agreement.
(c) In so far as it is known at the time of the grant of permission the planning authority shall indicate to the applicant its intention in relation to the provision of housing, including a description of the proposed houses, on the land or sites to be transferred in accordance with paragraph (a)(i) or (iii).
(d) Nothing in this subsection shall be construed as requiring the applicant or other person to enter into an agreement to transfer houses or sites in accordance with subparagraph (ii) or (iii) of paragraph (a) instead of transferring land in accordance with subparagraph (i) of that paragraph.
(e) For the purposes of an agreement under paragraph (a), the planning authority shall have regard to-
(i) the proper planning and sustainable development of the area to which the application relates,
(ii) the housing strategy in so far as it relates to affordable housing and the specific objectives of the development plan which relate to the implementation of the strategy,
(iii) the need to ensure the overall coherence of the development to which the application relates,
(iv) the views of the applicant in relation to the impact of the agreement on the development, and
(v) the economics of the provision of housing in accordance with the housing strategy.
(f) Government guidelines on public procurement shall not apply to an agreement made under paragraph (a)(ii) or (iii) except in the case of an agreement which is subject to the requirements of Council Directive No. 93/37/EEC1 on the co-ordination of procedures relating to the award of Public Works Contracts and any directive amending or replacing that directive.
(5) In the case of a dispute in relation to any matter which may be the subject of an agreement under this section, other than-
(a) a dispute in relation to an agreement under subsection (4)(a)(ii) or (iii),
(b) a dispute as to the amount of compensation payable under subsection (6), or
(c) a dispute as to the sum payable to a planning authority under subsection (11),
the matter may be referred by the planning authority or any other prospective party to the agreement to the Board for determination.
(6) Where ownership of land is transferred to a planning authority in accordance with subsection (4)(a)(i), the planning authority shall by way of compensation pay to the owner of the land an amount, representing the value of the land assessed in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919.
(7)(a) Subject to paragraph (b), a property arbitrator, nominated under the Property Values (Arbitration and Appeals) Act, 1960, under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, shall, in default of agreement, fix the following where appropriate-
(i) the number and price of houses to be transferred under subsection (4)(a)(ii);
(ii) the number and price of sites to be transferred under subsection (4)(a)(iii);
(iii) the compensation payable under subsection (6) by a planning authority to the owner of land;
(iv) the sum payable to a planning authority under subsection (10).
(b) Section 171 shall apply to compensation payable under subsection (6).
(8)(a) Where ownership of land or sites is transferred to a planning authority in accordance with subsection (4)(a)(i) or (iii), the authority may-
(i) provide, or arrange for the provision of, affordable housing on the land or sites as referred to in section 80(4)(a)(ii);
(ii) make land or sites available to eligible persons for the development of houses by them for their own occupation; or
(iii) make land or sites available to a body approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act, 1992, for the provision of housing pursuant to section 80(4)(a)(ii).
(b) Pending the provision of houses or sites in accordance with paragraph (a)(i), or the making available of land or sites in accordance with paragraph (a)(ii) or (iii), the planning authority shall maintain the land or sites in a manner which does not detract, and is not likely to detract, to a material degree from the amenity, character or appearance of land or houses in the neighbourhood of the land or sites.
(9)(a) Where a house is transferred to a planning authority or its nominees under subsection (4)(a)(ii), it shall be used for the provision of housing pursuant to section 80(4)(a)(ii).
(b) A nominee of a planning authority may be an eligible person or a body approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act, 1992, for the provision of housing referred to in section 80(4)(a)(ii).
(10)(a) Where for reasons of the size, shape or other attribute of the site or the economics of the provision of housing of the type in question, the planning authority, or the Board on an appeal, considers that an agreement under subsection (3) is not practical, the planning authority, or the Board on appeal, may as a condition of a grant of permission in accordance with section 34 require the payment to the planning authority of an amount equivalent in value to a transfer of land to the authority under paragraph (a) of subsection (4).
(b) The condition specified in paragraph (a) shall provide that the sum shall be agreed between the planning authority and the person to whom the permission is granted and that in default of agreement the sum shall be fixed by a property arbitrator in accordance with subsection (7).
(11) Any amount paid to a planning authority in accordance with subsection (10) shall be accounted for in a separate account and shall only be applied as capital for its functions under this Part or by a housing authority for its functions in relation to the provision of housing under the Housing Acts, 1966 to 1998.
(12) This section shall not apply to applications for permission for-
(a) development consisting of the provision of 5 or fewer houses,
(b) development for housing on land of 0.2 hectare or less,
(c) the conversion of an existing building or the reconstruction of a building to create one or more dwellings, provided that 50 per cent or more of the existing external fabric of the building is retained, or
(d) the carrying out of works to an existing house.
(13) In this section, 'owner' means-
(a) a person, other than a mortgagee not in possession, who is for the time being entitled to dispose (whether in possession or reversion) of the fee simple of the land, and
(b) a person who, under a lease or agreement the unexpired term of which exceeds 5 years, holds or is entitled to the rents or profits of the land.”.
The purpose of this amendment is to insert a new section to ensure we can achieve the objective the Minister is setting out to achieve in a less controversial way. Subsection (3) proposes that there can be a condition in planning permission to provide social or affordable houses as a proportion of the development. It sets out the contents of agreements to be made to bring this about.
Much of the amendment mirrors provisions already in the Bill so I am not setting out to reinvent the wheel. The amendment is aimed at bringing about the central objective of the Bill in a less controversial way and in a way which is consistent with the amendment which has been defeated, something I am sure the Minister will point out. However, the new section would stand on its own and not interfere with anything else in the Bill.
I do not know if the committee wishes me to go through each subsection in the amendment - the intention is fairly clear. In the interests of brevity I am prepared to waive the lengthy exegesis of the section, but I could give a detailed introduction if that is insisted upon.
In the interests of brevity I will try not to repeat much of what I said earlier. This is relevant to the philosophical discussion we had earlier when Deputy Dukes outlined in great detail his reasons for the previous amendment which equally apply to this amendment.
As I said before, I cannot accept the amendment which completely knocks the guts out of Part V of the Bill, something acknowledged by the Deputy. It applies only to affordable housing - there is no mention of social housing. Part V applies to all forms of housing and section 82 relates to social and affordable housing. A housing strategy must take into account under section 80(2)(c) the need to counteract the undue segregation between persons of different social backgrounds. If we are to learn anything from our past experience and from what we have seen in our constituencies, we must not repeat the mistake of segregation. Amendment No. 415 would reinforce that past practice.
Part V also provides for the transfer to planning authorities in accordance with the housing strategy of up to 20% of the land at its existing use value rather than its market value. This is to ensure local authorities have access to a supply of land for both social and affordable housing without binding the taxpayer too much in terms of paying high prices for land, the value of which increases in large measure because of the actions of local authorities in terms of zoning and servicing, something alluded to by Deputy Gilmore. A central tenet of Part V is that the wider community should get some gain from decisions on zoning taken by local authorities.
The amendment provides that where land is transferred to a local authority the compensation paid would be assessed in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, but the amendment does not say which of the compensation rules under the Act would apply. I take it that in view of what Deputy Dukes said earlier, it is intended that the land would be transferred at market value. If that is the intention, it would defeat the central tenet of Part V to which I have referred.
Finally, the amendment introduces a new consideration for which the planning authority must have regard in making an agreement with an applicant for planning permission, namely, "the economics of the provision of housing in accordance with the housing strategy". Such a provision in this section would be an open invitation for every builder and developer to tell us how committed they were to social housing and a social mix of housing and how they wanted to supply everybody with free or affordable housing but that unfortunately the economics of the situation precluded them from so doing, leading them to make no offer of social or affordable housing.
The amendment also deletes two significant provisions of section 82 as passed by the Seanad. It concerns the provisions relating to when land acquired by a local authority under this part is no longer required for the purposes of the Part V, and the provision which limits the duration of planning permissions granted for residential development after the publication of this Bill and before the incorporation of a housing strategy in the development plan.
It is important that the land acquired under this part for housing but no longer required by the planning authority can be used for other purposes, but that an amount of equivalent value is given to housing purposes. The provision limiting the duration of planning permissions is important because while it gives developers a reasonable opportunity to build, it will also ensure all developers operate under the same rules as soon as possible in the interests of equity, which is essential.
For these reasons I cannot accept amendment No. 415. Amendment No. 644 appears to be an alternative as it proposes inserting a provision in the Fifth Schedule stating that any condition requiring the provision of a specified proportion of social and affordable housing will not attract compensation, in contrast to amendment No. 415 which seems to provide for full compensation at market value. Amendment No. 644 goes further than Part V which does not require the transfer of land or housing to a local authority without compensation. In fact section 82 sets out the compensation to be paid, which in the case of land is based on the existing use value or the price prior to August 1999.
The legal advice is that what we are doing meets the constitutional provision on property rights. To include a provision as proposed would have the opposite effect to that intended by the Deputy and leave the Bill open to constitutional challenge. Throughout Part V I have aimed to ensure the proposals I have put forward are proportionate to the problems we are addressing and amendment No. 644 does not appear to meet this test. For that reason I cannot accept it.
I will not spend much time on this as the Minister's view is fairly clear. He has pointed out what he considers to be two defects in the drafting of the new section. It is entirely gratuitous but nonetheless sincere for me to say that had he proposed amendments to deal with those two technical effects I would have been quite happy to accept them.
I take the Minister's point about social housing. I agree with the requirement that we should have affordable housing and I have no reason to believe he disagrees with me. Local authorities should, where appropriate and possible, return to a system still used by some but which was more widespread years ago, whereby they acquired land at reasonable market prices, in many cases previously unzoned, which subsequently became zoned and which was made available at very little extra charge - the authorities covered their costs - to those who wanted to build their own houses. That proved a very useful provision, not only in rural areas but within the planning boundaries on the outskirts of towns.
I can think of a great many towns around the country where one can see estates of private sites which were made available by councils to people who built relatively modest houses. It filled a need in the market between local authority housing and starter housing normally built by speculative builders. When canvassing in towns outside the main cities one sees with the passage of years the amount of improvement and extension done to houses in those areas. That system has created clusters of communities which socially have an awful lot going for them. I would like to think it would be possible to repeat that very good system. I think it could now be done at higher densities than in the past and I would like that to be part of an affordable housing strategy.
With regard to existing use value versus market value, I do not know if there is a settled doctrine. The Minister uses existing use value to mean whatever people paid for lands which were not zoned at the time of purchase - there are problems with this - or whatever the Minister or the local authority considers would have been the agricultural value of the land if it had not been zoned. This is a difficult concept to understand because one can never prove a negative or that land would not have been worth a good deal more.
The Minister should be aware of a few things which affect the comparisons we make in terms of price. Last week, for example, I read that in 1999 there were only 293 sales of agricultural land. I do not know if the prices in these sales can be used as a reflection of land values. This has nothing to do with housing, rather much land is let so that people will qualify for area aid. It is tied up in REPS, farm retirement schemes, etc., so the amount of land coming onto the market is a good deal less than it was and it will be very difficult to defend any notion of the existing use value of land which was agricultural prior to zoning. It is only fair to sound a warning that this could be a point of contention, even with the system set out in the Bill. Arbitration on land value may not be as easy as some commentators seem to think.
The Minister objects to a reference to the economics of housing provision, which I find a little odd given that the Minister, his party and the Government is supposed to recognise the role of private enterprise, etc. in the economy. In the past exercises controlling prices in the accommodation sector turned out to be failures sooner or later. Rent control in Dublin over decades resulted in slums and rent controls would again result in slums in urban areas. Policies which ignore the economics of housing provision - the cost of buying land and building a house on it - can result in choking supply. People will not build houses if they cannot make a profit, and that is why I included a reference to the economics of housing provision.
It could well be that local authorities will find the Minister ignored that at his peril when they begin to apply the provisions in the Bill. I refer, for example, to where a local authority makes an agreement whereby the builder constructs houses rather than giving the authority a specified percentage of land. The Minister objects to me leaving out the provision that land not required for housing can be used for other purposes. On the face of it such a provision seems reasonable, but we are talking about a housing strategy.
I am sure the Minister would say such an outcome would be the exception rather than the rule, which may be the case, but if local authorities are to use the powers they are given in the Bill they should get it right and not take more land then they can use for the intended purpose. It is not self-evident that local authorities, in the public interest, will necessarily make better use of land not used for housing then a private developer.
I accept what the Minister says about the restriction on the life of a planning permission and would have had no difficulty accepting an amendment in that regard. I will address briefly our past problems, referred to by the Minister, which multiplied in terms of the ghettoisation of housing provisions. We made the most appalling mistakes in building large estates for housing people on low incomes - this was undesirable. When we go about combating that or undertaking something else we should be aware of the difficulties. There is abundant evidence that there is resistance to the mixing of house types. There is even resistance to the idea of local authorities buying houses in middle price estates in which to house families from housing lists. That will not change over night by waving a wand.
In practical terms, the Minister is saying we will now start to desegregate housing. While this should be supported, we must go about it in the right way so we do not end up having a larger number of much smaller groups of local authority rental houses, cheek by jowl, with a number of larger groups of middle to upper market houses that are eventually surrounded by walls. We have seen this already. One does not have to go farfrom here, apart from complexes, to see fancy walls and gateways built around houses and I was astonished to see them. The first time I saw these walls and gateways was in Guatemala and the Dominican Republic and the reason for them there, with armed guards, was to prevent poor people gaining entry. Such a mentality is replicated here.
There are walls around housing estates in Dublin and big imposing gateways even though, in most cases, there is no gate or security provision around them. They are there as a statement and the message being conveyed is to keep the scruff out. It will take a great deal of sensitivity, planning and determination on the part of planning authorities to overcome that. As sure as God made little apples, builders and even first-time buyers of private houses will do their level best to get around any measures to mix housing. However, it should be done even though it will require a great deal of sensitivity to get around it.
Since this Bill was proposed, I have spoken to builders who made the extraordinary assertion that mixing house types will devalue the other houses built. I have said to them that this is bound to happen somewhere. It will eventually come to a point throughout the city that where a local authority estate ends, a private estate will begin. I asked the builders if they were suggesting that the houses at the beginning of private estate are worth less than those two rows down. Of course they are not, but they will not admit that to a buyer. This situation, by definition, exists already. There must be an attempt to ensure this happens more often, but with shorter borders between them, because there is a bigger mix of house types. We should not be under any illusion that it will be easy to bring this about as it will require a great deal of determination on the part of planning authorities. After ten years of mixing house types it will go unnoticed because people will accept it.
In most other European capitals there are houses at all income levels in the market in a space of 1 km which seems to work extremely well. There are still large areas where people on low incomes are concentrated. Every French city has its equivalent of Ballymun - some have worse. The programmes there in the 1970s, called HLM, produced the most awful ghettos and one sees similar examples in English cities. That does not have to be the case. To make it otherwise will require a great deal of determination.
Not to spin the matter out, and with the Chairman's permission - I do not think there will be any objection - I withdraw my amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 416 to 418, inclusive, not moved.
I move amendment No. 419:
In page 91, subsection (1), line 30, before "in addition" to insert "for the development of houses, or where an application relates to a mixture of developments, to that part of the application which relates to the development of houses,".
Amendment agreed to.
I move amendment No. 420:
In page 91, lines 31 to 36, to delete subsection (2) and substitute the following:
"(2) A planning authority may require as a condition of a decision to zone land for residential use that the owner, or any other person with an interest in the land proposed to be zoned for residential use, enter into an agreement with the planning authority concerning the development for housing of land to which a specific objective applies in accordance with section 81(1)(b).”.
This amendment seeks to establish that a planning authority can make a condition in respect of the mix of house types in a development. I am aware of a case in connection with part of the Ilac Centre development, where Dublin Corporation specified that a proportion of the construction should take the form of affordable housing - this was put in as a condition to obtain planning permission. It was appealed to An Bord Pleanála which stated that it could not be a proper condition of planning permission because it did not know what constituted affordable housing. The condition was not made because there was a lack of clarity.
I am trying to provide clearly in legislation for the making of such a condition. My formulation of it might be defective but it is something which the Minister should bring about. We should have many ways, within reason, of achieving the objective of a mixture of house types. To do that, we should consider planning authorities having as one of their weapons the right to make such a condition in an application but that it would not be done everywhere.
The Deputy has a point but the amendment is not necessary because it is completely in the spirit of what is being done in Part V. It is not necessary because land can only be developed in accordance with zoning. Section 82(2) enables a local authority as a condition of the grant of planning permission to require a developer to enter into an agreement concerning the development of land to which a social and affordable housing condition applies. In essence, this part of the Bill deals with conditioning for social and affordable housing. The housing strategy should be dealt with and so on, but in terms of land zoned for residential development, 20% of the land will have to be for social and affordable housing once there is an application for planning. There is a provision to attach conditions to planning permissions, which would meet the point the Deputy was making concerning that development, the development mentioned yesterday, the docklands and so on. There is not a provision concerning zoning decisions and I would not be happy to attach conditions to such decisions. The proper place to attach conditions is to planning permissions.
I did not intervene in the debate on amendment No. 415, largely because I agreed with the Minister's approach. However, the Minister might consider one aspect of amendment No. 415 which may also apply to amendment No. 420. As I understand it, planning authorities will attach a condition to a planning permission that X% is reserved for social and affordable housing which becomes the subject of agreement between the planning authority and the developer before the planning permission can take effect. One aspect of amendment No. 415 which may be worth re-examining is the suggestion that the obligation should be placed on the applicant to submit the proposals on how it will work as part of the application. Once people know this will happen they will probably include what they have in mind, particularly if the application is for a substantial development. Presumably they will also include what they have in mind to comply with the housing strategy.
However, there may be a case for imposing a requirement on applicants to submit proposals from the beginning to avoid situations where planning authorities return applications seeking additional information and where, because it was not included in the initial application, it is more difficult to reach agreements. If, for example, someone submits an application for 100 dwellings, of which 20 are detached, 60 are semi-detached, 20 are town houses, or whatever, there may also be a block of apartments, and permission is granted subject, let us say, to the transfer of housing units rather than land, it might be better to place the obligation on the applicant from day one to submit what he or she proposes to do.
Under subsection 82(3)(d), the landowner or developer will make the call as to whether the transfer involves land or dwellings because, as I understand paragraph (d), the developer cannot be required by the planning authority to transfer dwellings. Therefore, from the outset it might be useful to impose a requirement that the initial planning application should indicate how the applicant proposes to comply with the housing strategy and the provisions of Part V.
I will examine this issue. It is intended that discussions will take place as early as possible but it may be useful to include that they may do so from the beginning. The guidelines we issued on the implementation of Part V state, in the context of the agreement and so on, that this issue should also be brought up at the earliest possible stage in any pre-planning discussions and so on. That is what is intended but the Deputy makes a good point and we will consider including it as a condition. We will look at this issue again for Report Stage as it might be useful.
Amendment, by leave, withdrawn.
Amendment No. 422 is an alternative to amendment No. 421 and amendments Nos. 423 to 425, inclusive, are related. These amendments may be taken together by agreement.
I move amendment No. 421:
In page 93, lines 13 to 26, to delete subsection (5) and substitute the following:
"(5) Where ownership of land is transferred to a planning authority pursuant to subsection (3)(a)(i), the planning authority shall, by way of compensation, pay to the owner of the land a sum equal to-
(a) (i) in the case of-
(I) land purchased by the applicant before 25 August 1999, or
(II) land purchased by the applicant pursuant to a legally enforceable agreement entered into before that date or in exercise of an option in writing to purchase the land granted or acquired before that date, the price paid for the land, or the price agreed to be paid for the land pursuant to the agreement or option, together with such sum in respect of interest thereon (including, in circumstances where there is a mortgage on the land, interest paid in respect of the mortgage) as may be determined by the property arbitrator,
(ii) in the case of land the ownership of which was acquired by the applicant by way of a gift or inheritance taken (within the meaning of the Capital Acquisitions Tax Act, 1976) before 25 August 1999, a sum equal to the market value of the land on the valuation date (within the meaning of that Act) estimated in accordance with section 15 of that Act,
(iii) in the case of-
(I) land purchased before 25 August 1999, or
(II) land purchased pursuant to a legally enforceable agreement to purchase the land entered into before that date, or in exercise of an option, in writing, to purchase the land granted or acquired before that date, (where the applicant for permission is a mortgagee in possession of the land) the price paid for the land, or the price agreed to be paid for the land pursuant to the agreement or option, together with such sum in respect of interest thereon calculated from that date (including any interest accruing and not paid in respect of the mortgage) as may be determined by the property arbitrator,
(b) the value of the land calculated by reference to its existing use on the date of the transfer of ownership of the land to the planning authority concerned on the basis that on that date it would have been, and would thereafter have continued to be, unlawful to carry out any development in relation to that land other than exempted development, whichever is the greater.”.
This amendment concerns the issue referred to by Deputy McCormack where land was transferred or whatever, before 25 August and that we would clearly state the price and so on which needed to be placed on it. Deputy Dukes also tabled an amendment on this issue. As it stands, the Bill provides that if a contract to purchase land was made prior to 25 August 1999, the date of publication of the Bill, the purchaser of the land would be entitled to the price he or she paid or agreed to pay rather than the existing use value, unless greater. This is because a person in this position would not be aware of the changes proposed in the Bill and would make an agreement before that date.
Following publication of the Bill, I was advised that people who had inherited land and paid tax on that land, and those who gave a mortgage for land and then came into possession of that land, would be unfairly discriminated against if they were only entitled to receive the existing use value of the land if they subsequently made a planning application. This amendment will place such people in the same position as those who purchased land before 25 August.
A person who inherits land, or receives land as a gift, will get the value of the land estimated in accordance with the valuation given to it for capital acquisitions tax purposes. A mortgagee who comes into possession of land will get the same amount as if he or she had been the purchaser of the land. However, if the existing use value is greater than that value it would be the level at which compensation would be set.
Amendment No. 422 in the name of Deputy Dukes would delete the provision completely and would permit the payment of a higher level of compensation for those who made purchase agreements before 25 August 1999. I cannot accept this amendment because, after the Bill was published, developers could be expected to know that they would be required to hand over land at existing use value and that they would factor this consideration into the calculations as to how much to pay for land. However, it was not possible for them to do so before that date. My amendment provides for those who may have entered into contracts, purchased land, given mortgages or paid capital acquisitions tax on the basis of the full market value. These people are entitled to expect that they will get the full value of the land.
Amendment No. 423 is a redraft of the provision for the appointment of the property arbitrator and clarifies the issue while not making any change of substance. Amendment No. 424 will provide a measure of comfort for developers that there will not be any delay in reaching agreement on the transfer of houses or land. The amendment provides that a dispute on any aspect of the making of the agreement must be transferred to the board or the property arbitrator, depending on the dispute, within eight weeks of the granting of permission and that the board and the arbitrator must resolve the dispute quickly. It is important to include this provision so that everyone, including the builder and the authority, will know where they stand and can proceed to provide the necessary houses.
Section 10 provides that if the provision of land or houses as part of the development on a site is not possible, the planning authority can require a payment instead of an amount which is equivalent to the value that the land being transferred to it would have, less the amount it would have had to pay in compensation.
Amendment No. 425 in the name of Deputy Gilmore would explicitly provide this basis for the calculation of this payment. However, I am not sure that we could make it, as the amendment proposes, the difference in the value of the land with the permission, less the compensation payable under section 82(5) if the permission was refused. Effectively, if permission is refused compensation would not be payable under section 82(5). The section is clear as it stands with the relevant amendments. The amendments tabled, other than mine, do not need to be accepted nor will they be accepted.
The difference between "need to be accepted" and "will be accepted" is not as small as the Minister seems to think. I recognise that the Minister is trying to provide for a specific type of situation. I invite him to reflect on whether there might be more situations, as yet uncontemplated, because I am sure there will be. Life is like that. As John Lennon once remarked, life is what happens when you are planning to do something else. Other situations could well emerge. The Minister will probably have to draft amending legislation to this Bill because I am sure he will find that, in some as yet uncontemplated cases, the operation of this Bill will be oppressive to some of the people who are responsible for my amendment No. 422 which he does not want to accept. I will not make a big issue of it but I say now as a matter of conviction that there will be other situations for which the Minister will have to legislate and in which the Bill will be oppressive.
The Minister referred to section 82(10) and the types of provisions which need to be made for possibly another uncontemplated anomaly in the operation of this provision. The Minister states that this measure will be applied, that various pieces of land will be found which do not fall into the category of being readily usable and that we will have to think of something which applies to those pieces of land. It is wise to do that, but I believe that he will again have to return at a later stage because he will find other places where, for reasons not contemplated in the Bill, land will not be usable in the way it might be thought to be. It could be that someone wants to develop a road or there is a new public transport mode development which interferes with it or an adjacent planning permission will make it unusable. I do not like the way this provision is being made. This part of the legislation is unnecessarily oppressive. Obviously it cannot provide for every situation and the Minister will probably have to modify parts of it as he finds other glitches in the operation.
Amendment No. 423 refers to an arbitration system. Does the Minister believe he should specify to which part of the Acquisition of Land (Assessment of Compensation) Act, 1919, he refers?
It is not contained in that.
The Minister gave out to me for not specifying to which part of the Bill I was referring.
I am not using it, so I do not need to specify which part I will not use.
The Minister is "blowing it out"?
As regards my amendment No. 425, my intention is that, if there is a refusal of planning permission and the reason is one for which compensation can be paid or is found to be such and compensation is paid, there should not be a double benefit.
Regarding the section and the Minister's amendments, there are a number of matters I wish to clarify because it is important that we are clear what the section means in terms of the compensation payable for land. I am reasonably clear about the 25 August formula. I understand it to mean that, if a person buys land before that date or has a contract for purchase and, if that person shows what was paid, that is the amount for which compensation can be paid, and the Minister is now adjusting that for interest paid on the money in the meantime. I am reasonably clear on that.
I am not clear about the manner in which the existing use value will apply. For example, if there are two pieces of land somewhere west of Dublin, in Meath or in north Kildare, one of which is zoned residential and other agricultural, does the Minister say that the existing use value is higher on the land zoned residential than on the land zoned agricultural? Another example would be the next development plan where agricultural land is zoned residential. What would be the existing use value? Would it be the residential use or the agricultural use?
The Kenny report, which is one of the previous reports dealing with building land, did not confine itself to existing use value in the compensation for land. My recollection is that it proposed existing use and a 25% compensatory element. Why has the Minister opted solely for existing use value? What consideration did he give to the compensatory element which seemed to be implied in the Kenny report which suggested a compensatory element above and beyond existing use value?
Amendment No. 424 deals with two matters. One is reference to the board where the terms of the agreement are at issue. I understand that and it provides an eight week deadline for an appeal to the board. The other is reference to the property arbitrator. Is the effect of referring the compensatory provisions to the property arbitrator a way of opening up the levels of compensation above and beyond existing use value? I presume the property arbitrator would take a range of factors into account. At the end of the day, he or she decides the matter. Is that a formula for opening up the level of compensation beyond existing use value?
On the final point, the property arbitrator will be bound by the legislation. It is not a way of opening it up to higher levels of compensation. He will have to work within the scheme and the legislation. Section 82(5)(a) refers to an amount, representing the value of the land based on the existing use of that land calculated on the assumption that it was at that time and would remain unlawful to carry out any development in relation to the land other than exempted development.
He must work with that definition. That is what he must take into consideration. It is not a means of opening it up to higher levels of compensation.
The reference is to "calculated on the assumption that it was at that time and would remain unlawful" etc. For how long would he have to expect that it would remain unlawful to carry out any development? The Minister is bringing in a system that would require local authorities to redo their development plan every six years and one which, rightly in my view, means all zonings not used up to then would fall and must be reconsidered. No property arbitrator could ever assume in such a case that it would remain forever unlawful to carry out a development on the land. Is there a timeframe governing this?
In the case of compensation for land, a property arbitrator, the point Deputy Gilmore raised, is entitled to take into account the development potential of the land when he is calculating the cost. We are saying he cannot do that.
He must treat it as if it had no development potential?
And would never have any.
Does that include zoned land?
If land is zoned residential——
The first question the Deputy asked was whether two pieces of land, one zoned residential and the other agricultural, will be treated the same or will the land zoned residential be paid for at a higher rate? The answer is "no". Existing use is the key - to apply it here, it has to be treated as agricultural land because there is no building on it. That is the formula used to ensure what the Deputy is worried about in his third question, whether the property arbitrator was a way of opening it up, cannot happen. The development potential cannot be taken into account. It is the land as is.
On the specifics of subsection (5)(a), what will decide this is whether it will remain unlawful to carry out any development in relation to the land. Does that mean, in simple terms, we are talking about land that does not have planning permission? What is the definition of “unlawful”? How is it to be calculated?
We are not allowing the property arbitrator to assume a development potential on the land or a right to work into his price a right to a planning permission or residential development on it. It is what I would normally call, and I have been corrected on this, agricultural use, existing use. That is the price on which he must settle. It is only in the case of a dispute that the property arbitrator is brought in. I imagine there will be disputes, as Deputy Dukes said.
The property arbitrator will look at paragraph (a) which states that
an amount, representing the value of the land based on the existing use of that land calculated on the assumption that it was at that time and would remain unlawful to carry out any development in relation to the land
I read "at that time" to refer to whether there was planning permission, which is a factual position, but "would remain unlawful" I interpret to mean that if the land is zoned residential it would not remain unlawful to carry out development. If it has a zoning you cannot say it will remain unlawful.
He has to assume for the purposes of a calculation that this land would never be built on, that it would remain unlawful to carry out any development in relation to the land. That is what he bases the price of up to 20% on. He cannot do anything else. He cannot say planning permission could be got on the land and that must be taken into account. Normally, as the Deputy rightly said, in the case of CPOs a property arbitrator can say that in five years when the development plan is in place this land will be zoned residential, industrial or whatever and, therefore, it is worth more than existing use. That cannot be taken into account here.
It cannot be taken into account.
As regards the concept of it being lawful to carry out any development within the meaning of this Bill, it is lawful to carry out a development only if there is planning permission. It is potentially lawful to carry out a development if there is a zoning but it does not become lawful until there is planning permission.
Any part of the Bill can be challenged.
This is a candidate for an céad áit.
It might be. One could take any Bill and pick out 25 items which might be open to challenge. I am operating on the basis that this is the best legal advice available to me and the Attorney General and the draftsman have gone into this in great detail. I have been reasonably fair in accepting amendments but I am reluctant to accept amendments on this section because of the delicate balance that must be maintained in relation to constitutionality and so on.
I am satisfied with the advice I have received. This was not plucked out of the air. There are references to compensation Acts and so on. I believe it is sufficiently robust to withstand a challenge but we will have to wait and see.
It will not happen to me but I would not mind finding myself on the bench in the High Court and have people argue that in front of me. It is a heroic assumption that it will remain unlawful.
I am unclear about what is intended but is it not open to the court to say whether it is reasonable for the property arbitrator to assume that it would remain unlawful to develop a piece of land that is zoned for development? If a decision of the property arbitrator is challenged on this basis the courts may decide that it was not reasonable for the property arbitrator to assume that it would remain unlawful to carry out development on land zoned for development.
If one takes a section of a Bill in isolation one could probably make an arguable case as to whether it is constitutional or lawful but if there is a challenge the courts will look beyond a paragraph of a subsection of a section of a Bill. In this instance they will make a decision in the context of the overall aims of Part V. While we could probably have a philosophical discussion about the matter all day and sit here guessing as to what they may do - at times the courts make decisions that I find rather strange and at others logical and sensible - if it ends up in the courts it will be strongly argued that, in the context of what we are trying to achieve in Part V, this a reasonable approach to adopt.
I do not want to prolong the discussion but it is our duty to try to get the Bill right. I am drawing attention to an ambiguity in paragraph (a) which deals with the status of land zoned for development but in respect of which planning permission has not been sought.
Strictly speaking, by the time this provision applies there will be planning permission.
That is the point I have been making and the Minister has been rejecting since last August.
The property arbitrator will be able to decide the matter on the basis of existing use value in cases where there is no planning permission. It is an assumption for the purposes of calculation.
This animal is an elephant and we are operating on the assumption that it is not. Despite the fact that it is an elephant we will, therefore, rule it out.
Amendment agreed to.
Amendment No. 422 not moved.
I move amendment No. 423:
In page 93, subsection (6)(a), lines 27 to 30, to delete all words from and including “Subject” in line 27 down to and including “shall,” in line 30 and substitute the following:
"Subject to paragraph (b), a property arbitrator appointed under section 2 of the Property Values (Arbitration and Appeals) Act, 1960, shall (in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919),”.
Amendment agreed to.
I move amendment No. 424:
In page 93, after line 49, to insert the following subsection:
"(7) Where it is a condition of the grant of permission that an agreement be entered into in accordance with subsection (2) and, because of a dispute in respect of any matter relating to the terms of such an agreement, the agreement is not entered into before the expiration of 8 weeks from the date of the grant of permission, the applicant or any other person with an interest in the land to which the application relates may-
(a) refer to the Board any dispute to which subsection (4) applies,
(b) refer to the property arbitrator-
(i) any dispute to which subsection (3)(a)(ii) or (iii) relates,
(ii) any dispute as to the amount of compensation payable under subsection (5), or
(iii) any dispute as to the sum payable to a planning authority under subsection (10),
and the Board or the property arbitrator, as may be appropriate, shall determine the matter as soon as practicable.".
Amendment agreed to.
Amendments Nos. 425 to 427, inclusive, not moved.
Question proposed: "That section 82, as amended, stand part of the Bill."
As I said on Second Stage we have to try to ensure there are no loopholes in Part V. It is my intention, therefore, to introduce further provisions to ensure the exemptions provided for in subsection (12) are not abused to avoid the provisions of Part V. As soon as they are to hand I will make them available to Deputies to ensure they have plenty of time to study them before Report Stage.
On subsection (13), I have drawn attention to the fact that in respect of planning permissions obtained between now and the coming into effect of housing strategies the 20% provision will not apply where the foundations are laid by 31 December 2002. Somebody placing a slab of concrete on the ground could describe it as a foundation. I, therefore, give notice that I intend to table an amendment on Report Stage to tighten the wording of the subsection.
Question put and agreed to.
Amendment No. 428 not moved.
Sections 83 and 84 agreed to.
I move amendment No. 429:
In page 98, subsection (1)(b), line 3, to delete “relevant”.
The amendment seeks to delete the word "relevant" in relation to the determination of income for the purposes of deciding who is eligible for affordable housing. Section 79 of the Bill as published contained a definition of "relevant income" for the purposes of Part V but this was substantially amended in the Seanad to set out the specific amount. The reference to "relevant income" is therefore incorrect.
Amendment agreed to.
Section 85, as amended, agreed to.
Question proposed: "That section 86 stand part of the Bill."
In what circumstances and where would the situation contemplated in the section arise? Subsection (1) reads:
Where a planning authority performing any function under this Part is not the housing authority for the area of the function, the planning authority shall consult with the housing authority for the area with respect to the performance of that function.
Some UDCs do not have full have housing responsibilities.
We have different classes of UDC?
Absolutely, some have planning, water and fire functions, others do not.
The Minister is proposing to call them all by the same name, yet he is making no changes to their functions.
I am changing their functions but that is a matter for another day.
The Minister says that with an icy grin that makes me worry.
Question put and agreed to.
I move amendment No. 430:
In page 98, before section 87, but in Part V, to insert the following new section:
"87.-(1) For the purposes of housing development referred to in section 80(4)(a), and in respect of all housing development which shall be established following the implementation of Part V, the Minister shall introduce a certificate of reasonable value for the purposes of obtaining a first time buyers grant or mortgage interest tax relief.
(2) For the purposes of subsection (1), a certificate of reasonable value shall have the following information-
(a) the site cost attached to each housing unit;
(b) the costs associated with building the house, or houses;
(c) the difference in price, between the housing development referred to in section 80(4)(a) and all other housing development on land, or on parcels of land, associated with the original planning application to the planning authority;
(d) any other information that the Minister may decide to include, following consultation with the Minister for Enterprise, Trade and Employment and the Minister for Finance.
(3) A certificate of reasonable value, as referred to in subsection (1), shall come into operation following the adoption of the housing strategy referred to in section 80.”.
This amendment seeks to introduce a certificate of reasonable value.
We had a discussion on this issue yesterday.
I gather it was without success.
Amendment, by leave, withdrawn.
Section 87 agreed to.
Amendments Nos. 431 and 444 are related and may be taken together by agreement.
I move amendment No. 431:
In page 98, subsection (2), lines 43 and 44, and in page 99, line 1, to delete "or of an employee of the Board or of a person whose services are availed of by the Board by virtue of section 107,”.
This is a straightforward amendment. It is about the authentication of the seal of An Bord Pleánála. The Bill provides that the seal may be authenticated by the signature of the chairperson or of some other member of the board. I agree with that. It goes on to state that it can be authenticated by an employee or the board or, effectively, by a person who is on contract to the board. The authentication of the seal of the board which is an important formal function should be confined to either the chairperson or members of the board.
These amendments would confine the authentication of the board's seal to members of the board. This matter arose also in the Seanad. I explained at that time, in the case of formal board decisions regarding appeals or referrals, that the seal of the board is always fixed by order and is always authenticated by a board member. I think this is what the Deputy is interested in. However, in certain day to day transactions, it is necessary to enable the seal to be authenticated by a senior officer of the board. The board needs that type of flexibility. It would be for only minor matters and would not apply to appeals and referrals and, accordingly, I ask the Deputy to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 88 agreed to.
Amendment No. 432 is out of order as it involves a potential charge on the Revenue.
Amendment No. 432 not moved.
Is the Chairman going to tell me amendment No. 434 is out of order also?
Amendment No. 432, in the name of Deputy Gilmore, seeks to increase the number of ordinary members of An Bord Pleánála from six to seven. Under section 91(12) each ordinary member is paid such remuneration and allowances for expenses as the Minister, with the consent of the Minister for Finance, determines. Under section 101 grants out of moneys provided by the Oireachtas are paid to the board in respect of its expenditure. Payment therefore involves a potential charge on the Revenue and must, in accordance with Standing Order 142(3), be disallowed.
I will not question your ruling. I shall speak about it on amendment No. 433 when I will be perfectly in order to say what happens.
We come to amendment No. 433.
I move amendment No. 433:
In page 99, lines 21 to 33, to delete subsection (4).
This amendment deals with the membership of the board. In my earlier amendment, which was ruled out of order, I proposed to increase the number of ordinary members to seven. That amendment was ruled out of order on the grounds that it would involve a potential charge on the Revenue. A case can be made to show the reverse. The delays in decisions from the board, some of which are caused by the shortage of staffing personnel and membership of the board, are the reason for imposing a charge on the Revenue. I would argue that increasing the membership of the board might cost the State much less than the current costs of delays in the processing of planning applications and the processing of appeals.
Subsection (4) allows the Minister to appoint an ordinary additional member of the board for a temporary period. In other words, he can appoint a civil servant to the board for a period of nine months. The legislation should provide for the appointment, in the normal way through the committee established to nominate persons for membership of An Bord Pleánála. Sufficient members should be identified and provided for in the legislation. There is no necessity for a person to be appointed on a temporary basis. The provision in subsection (4) could be abused. The Minister could decide he wanted to appoint a civil servant to the board at some stage. The section would be better without subsection (4). Rather, the number of members should be stipulated, they are appointed through the committee established for nominating members. The provision whereby the Minister can appoint his own man or woman to the board should be deleted.
I support Deputy Gilmore's amendment. If things get to a stage which they did in the not too distant past where it becomes necessary to appoint extra members to the board of An Bord Pleánála because they cannot keep up with the work, the Minister should have to justify it, as he did on a previous occasion. I agree with Deputy Gilmore that the Minister should not have the ability to slip in an extra member to the board in this way.
Any time I have had to increase the membership of the board I had to justify it. We had a Bill last year under which the number or ordinary members on the board was increased from five to six to take account of the new function the board is being assigned. There are provisions for an increase in the membership when there is a large upsurge in appeals. Given the level of appeals, it is useful that persons can be added to the board on a temporary basis. Amendment No. 433 would delete the Minister's power to appoint officers of his own Department or employees of An Bord Pleánála to the board as a matter of urgency due to the number of appeals or referrals which are submitted to the board. That provision was included in the Local Government (Planning and Development) Act, 1998, and was discussed by this committee. The maximum term of an appointment under this provision is nine months. The reason it is included is that the procedure for appointment of members under section 91 takes time.
Nominations have to be sought from the prescribed bodies. These bodies have to identify candidates willing to let their names go forward and those names must then be considered by the Minister before the person is appointed. After that, the people have to give minimum notice to their employers before taking up the positions with the board.
I do not disagree with increasing the number of board members from six to seven, and I will have a look at that on Report Stage, but I disagree with the proposition that the Minister of the day would not have the right to appoint people on a temporary basis. At some stage in the future there could be a further dramatic rise in the number of appeals and it is important that the board is strengthened as soon as possible. For an appointment to the board we are talking in terms of a period which can be anything up to six months. If two members of the board resigned we could find ourselves in a situation where we would be down two people. This particular power is a valuable one. It is only officers of the Department or somebody from An Bord Pleanála that the Minister will appoint. It is not as if he or she has power to appoint people from outside, so the safeguards are there.
In relation to amendment No. 432, which was ruled out of order, if the Deputy feels strongly that membership should be increased from six to seven, I am prepared to consider that favourably before Report Stage.
I thank the Minister. I would welcome an amendment from him to increase the membership of An Bord Pleanála.
In relation to the amendment we are discussing, the temporary appointment of a civil servant as a member of An Bord Pleanála for a period of nine months, there is a reason that should not be done. An Bord Pleanála is required, in determining appeals, to have regard to Government policy and to the policy of the Minister. Presumably a civil servant, who would be a civil servant in the Minister's Department, would be obliged, in that capacity and as part of their function, not just to have regard to Government policy but to ensure that such policy is implemented. It would put a civil servant from a Minister's Department who has, in the course of their normal career, a duty to implement the Minister's policy in a difficult position if he or she were sent to An Bord Pleanála for a period of nine months. They might find themselves in a position where they would have to decide appeals and where there is a general requirement on the board to have regard to the Government and to the Minister's policy. They would then return to the Department when their period of time in An Bord Pleanála is concluded.
There is a good reason for not having civil servants sent to An Bord Pleanála on a temporary basis. I have no problem with a civil servant being appointed as a member of the board in the normal way and serving their time as a member of the board, but I do not agree with this kind of temporary assignment of somebody whose normal functions are to implement the Minister's and Government policy, and who is then sent into this quasi-judicial capacity where one of the considerations that they are obliged by law to take into account is such policy. I see a potential conflict in that and the best way of resolving it is not to do it at all.
Currently, every member of the board has a duty to have regard to Government policy and policies that emanate from my Department in relation to planning and development. Every board member, to my knowledge, knows and accepts that a civil servant is no different to anybody else serving on that board. I hope that every member of the board, no matter where they come from, will have regard to Government policy, Minister's policy and so on.
The other point I would make on the matter is that the member, he or she being a civil servant appointed on a temporary basis, is only one of six or, if I put down an amendment, seven people. Currently the number is ten so that one member of the board would need to have extraordinary powers of persuasion. Knowing the people on the board I do not think that would be the case unless they had good reason for arguing their case and persuading the members of the board. The Deputy's fears about civil servants perhaps wanting a policy implemented solely on the grounds that it was a Minister's policy are not well founded.
I would make the point also that the civil servants that have been appointed do not have to come from the planning section of the Department. In fact, a number of them have not come from that section but that is merely an aside. A civil servant, and I know the Deputy is not casting aspersions and I do not want anything I say——
I do not want civil servants in the planning section in the Department at all.
It is not unknown for civil servants to have substantial powers of persuasion.
I am sure they have but they will not be using it in that narrow sense that the Deputy mentioned. I do not think the fears the Deputy is expressing are well founded. The advantage of having this provision far outweigh any possible slight danger of what he Deputy fears happening.
Amendment, by leave, withdrawn.
Section 89 agreed to.
Amendment No. 434 is in the name of Deputy Dukes and amendment No. 435 is related, so the proposal is to discuss Nos. 434 and 435 together, by agreement.
I am delighted to hear amendment No. 434 is in order, Sir. I will not ask you the reason because I am afraid you might change your mind. I should have known. As I said before, it is not unknown for civil servants to have substantial powers of persuasion.
I move amendment No. 434:
In page 100, subsection (2), between lines 4 and 5, to insert the following:
"(h) Uachtarán of Comhdháil Náisiúnta na Gaelige,
(i) The President of the Chambers of Commerce of Ireland,”.
This refers to the committee that advises on the appointment of a chairperson. It does not appoint the chairperson; it recommends. It seems to me that this committee is rather oddly configured. It includes the President of the High Court, and one understands that, although I am bound to say that in recent years members of the Judiciary, particularly members and Presidents of the High Court, have found themselves doing things that were way beyond the scope of their functions as contemplated in the Constitution.
With respect to every single and past member of the High Court, we have sometimes lumbered them with functions that are not at all suitable to their office. I know that none of them will hold it against me when I say that that the fact of their appointments to the Bench of the High Court does not make them renaissance men and women who can be relied on to carry out a whole range of functions, but we will pass by that one.
The committee also includes the cathaoirleach of the General Council of County Councils - I can understand that. That is in the interest of the planning authorities. As to the inclusion in the membership, of the Secretary General of the Department of the Environment and Local Government, one can understand his or her inclusion. However, one could question whether the Secretary General of a Department, who is charged with formulating planning law and has a kind of a backstop responsibility in ensuring it is applied, should be involved, although I am not so worried about his or her inclusion that I would create a row about it.
As to the inclusion of the Chairperson of the council of An Taisce - the National Trust for Ireland, it is evident that interest should be represented.
With regard to the inclusion of the President of the Construction Industry Federation, that body should be represented as it has an economic interest in this area, but that representation is not balanced elsewhere in the membership. The President of the Construction Industry Federation has one view, but there is also the view of the clients of that body. That is why I suggested the President of the Chambers of Commerce of Ireland. They have a different interest. They represent the other side of planning. The dimension of planning concerns that would be represented by the chambers of commerce would be rather different from that represented by the Construction Industry Federation.
With regard to the inclusion of the President of the Executive Council of the Irish Congress of Trade Unions, I am not being offensive in saying that I do not know which hat the President of the Executive Council of ICTU would wear in this regard. The interests of workers in the construction industry have been very badly served by the way safety at work legislation has been implemented or ignored here. That is an interest that body represents. It also represents the interests of people who work in the industry who have as much an interest as anybody else to get reasonable pay for their jobs. I suppose that the president of the Executive Council of ICTU would say that he or she can represent a certain public interest because of the representation member unions have throughout society. While that would be a fair interest to represent, it is not the only one.
As to the inclusion of the Chairperson of the National Women's Council of Ireland, at my peril, I say I do not know that there is a specific gender interest in planning. Is that body represented out of political correctness to be fashionable or do its members shout louder than anybody else? I do not know if it is legitimate to gender proof planning law. Aesthetics are not a matter of gender. The Chairperson of the Irish Wheelchair Association could just as easily, and more defensibly, be included in the membership. There is a more definable interest in planning law from that point of view than from a gender point of view. If there was a national men's council of Ireland, I would object to its chairperson representing that gender interest. The current Chairperson of the National Women's Council is a friend of mine and someone with whom I worked closely in another body, who undoubtedly would scarify me for what I said about that body, but I do not see there is a particular interest to be represented by that council.
My amendment proposed the inclusion in the board's membership of Uachtarán of Comhdháil Náisiúnta na Gaelige. We have had some discussion here in earlier sessions of our committee about the application of planning laws in Gaeltacht areas and the fact that planning laws, if agreed, can be important in a general move to preserve and promote the language and culture of Gaeltacht areas. That interest would be at least on a par with several of those listed in the section.
I propose two additions to membership rather than any deletions. In proposing the additions, I make the case that they are at least as entitled to be taken into consideration, if not more so, than certain others listed in the section.
We should think of the poor devils who will go for interview for the job of chairperson.
If they cannot stand the interview, they should stay out of that kitchen.
There will be seven people on the interview board and another two will be added to that number. If it was up to me, I would take the opposite approach. I would put this through TLAC or some other mechanism, but this is the system in place.
I propose that I will not change the system. The chairperson of the board was appointed recently. While all the members were co-operative, they are all busy people and a good deal of logistics were involved in getting them together to go through the various procedures. I will not add to that by adding two other groups, but perhaps there is a case for including some other groups on the panels who have nominating rights in respect of ordinary members of the board. I do not favour changing the membership as I consider it is large enough.
I can assure the Minister that if he had a shorter list that was not the accretion of the various bits of political correctness that we pick up on the way, I would be delighted. The list set out in the section is nonsensical.
The shortest one of all is not politically correct, but it is what we elect people to do.
If the Deputy tabled an amendment to that effect, I would consider it.
I do not trust the Minister on that.
I know that each Government chairperson will claim that the persons who are appointed as chairpersons and as members of various State bodies are selected without prejudice for the valuable contribution they will make to those functions and that political considerations had nothing to do with their appointments.
The existence of the committee makes it doubly certain that Chairpersons of An Bord Pleanála will be appointed through a mechanism that is not exclusively in the gift of Government or of a Minister. There are good reasons historically for that. An important principle is that the committee will continue to be the procedure for doing that. I said on Second Stage that the composition of the committee and the bodies entitled to make nominations need to be reviewed in light of the changes being made in this legislation, particularly the widening of the remit of An Bord Pleanála in relation to housing, architectural matters, conservation matters and so on. There is probably a case for doing that. However, that should be done in the form of primary legislation. I tabled an amendment proposing to excise the power of the Minister to do this by order, albeit after it has been approved by the Houses of the Oireacthas. This legislation will be amended and such a review should be done by way of amending legislation rather than by ministerial order. It is important to maintain the principle that the appointment of members of An Bord Pleanála is done through nominating bodies and through a committee, irrespective of what we agree to be its final composition, drawn from a range of interests such that it cannot be claimed there was political influence or a political hand in the appointment of the Chair of An Bord Pleanála.
With regard to Deputy Dukes's point about the National Women's Council and whether there is a gender issue in planning, one of the best documents I saw on planning was produced probably ten years ago by a group of professional planners in Dublin who were women. They set out a perspective on planning that was quite different from what was the conventional view on planning at that time. In the design of housing estates, for example, most houses have the kitchen at the back. They made the obvious point that a kitchen should be at the front of the house where people can supervise children in a common open space. It was a refreshing view. I am not sure that one could say that exclusively gender issues were raised in it but it was certainly a different perspective on planning issues from the conventional wisdom then and now.
Amendment, by leave, withdrawn.
Amendment No. 435 not moved.
Sitting suspended at 1.02 p.m. and resumed at 2 p.m.
The committee will now resume its deliberations.
I move amendment No. 436:
In page 101, subsection (10), between lines 34 and 35, to insert the following:
"(d) declared bankrupt or convicted of a serious offence,”.
The purpose of the amendment is to add a ground on which a person would be disqualified from being a member of the board. It is a normal provision which can be found in other legislation. I am sure the Minister would not want people of that ilk on the board.
The Deputy attempted to speed up the proceedings before lunch when he said that if I started well in the afternoon by at least accepting the principle of an amendment, we would move swiftly through the rest of the amendments. I accept the principle behind the amendment, but the term "serious offence" is not defined and the position is too uncertain. I will introduce an amendment on Report Stage.
The distinction between serious offences and misdemeanour was abolished.
In an attempt to make the law clearer, it has been made more opaque.
Amendment, by leave, withdrawn.
Section 90 agreed to.
Amendment No. 437 not moved.
I move amendment No. 438:
In page 103, lines 34 to 49, and in page 104, lines 1 to 4, to delete subsection (5) and substitute the following:
"(5) Except in the case of an appointment pursuant to subsection (1)(f) or a re-appointment under subsection (10) and subject to subsection (6) and section 93(4), the Minister shall not appoint a person to be an ordinary member unless the person was nominated pursuant to a request under subsection (4) in relation to that appointment.
(a) pursuant to a particular request under subsection (4), an organisation refuses or fails to nominate any candidate, or
(b) the Minister decides not to appoint as an ordinary member any candidate nominated by the organisations pursuant to a particular request under that subsection,
(i) the Minister shall appoint as an ordinary member a person who was among those nominated by such an organisation pursuant to a previous request (if any) under that subsection in relation to that appointment,
(ii) the Minister shall make a further request and shall appoint as an ordinary member a person who was among those nominated pursuant to that request or pursuant to another request made in relation to that appointment, or
(iii) the Minister shall appoint as an ordinary member a person selected by a committee established under subsection (7).
(7) (a) There shall be a committee (’the committee’) consisting of-
(i) the chairperson,
(ii) the Assistant-Secretary of the Department of the Environment and Local Government with responsibility for planning and sustainable development, and
(iii) the Chairperson of the Heritage Council.
(b) The committee shall, whenever so requested by the Minister-
(i) by notice in one or more national newspapers, invite applications for appointment as an ordinary member by suitably qualified persons,
(ii) select 3 candidates, or if in the opinion of the committee there is not such a sufficient number of suitable applicants, such lesser number of candidates as the committee shall determine, for appointment as an ordinary member, having regard to the knowledge and experience and other qualifications or personal qualities which the committee considers appropriate to enable a person effectively to perform the functions of an ordinary member, and
(iii) inform the Minister of the names of the candidates or, as may be appropriate, the name of the candidate, selected and of the reasons why, in the opinion of the committee, they are or he or she is suitable for the appointment.".
At present ordinary members of An Bord Pleanála are appointed by the Minister from a list of candidates nominated by various representative bodies and associations as set out in the section. This aspect was discussed earlier. However, recent experience is that the nominating bodies have not nominated their full quota of candidates. In some cases, they did not nominate anybody and this has restricted my choice. It has also caused a particular problem in relation to ensuring proper gender balance and experience on the board, both of which are important. A fall-back procedure is provided for in section 91(5), but it is still dependent on nominations by the bodies.
In an attempt to ensure that the widest possible selection of candidates is available, I have brought forward the amendment which will introduce a new fall-back procedure in addition to the one already provided. The amendment would allow applications to be sought on the basis of open recruitment. There would be advertisements for candidates and they would be selected by a committee made up of the chairperson of the board, the Assistant Secretary General with responsibility for planning in the Minister's Department and the chairperson of the Heritage Council. Up to three names will be sent forward to the Minister to make the final appointment.
That procedure runs parallel with the one we discussed earlier, as set out in section 90, relating to the chairman of the board. It works effectively and is open and transparent. I do not think this procedure will be used that often and, hopefully, it will not need to be because the normal recruitment process will apply. However, my experience over the last two and a half years leads me to believe that this amendment is necessary.
Amendment agreed to.
Section 91, as amended, agreed to.
Section 92 agreed to.
Amendments Nos. 439 and 450 are related and may be discussed together by agreement.
I move amendment No. 439:
In page 105, subsection (1), line 33, to delete "3" and substitute "5".
This relates to the quorum for the board. Earlier, the Minister indicated his willingness to increase the size of the board to seven. If the size of the board is increased to seven it would not be appropriate for a quorum to be less than half the membership of the board. I have proposed a quorum of five.
If that is an effect of increasing the membership of the board to seven, I would have to consider it seriously. A quorum is not usually half of any organisation. It is usually something like 20%. A more important point concerning this amendment is that it would defeat the way we are trying to ensure that the board works efficiently and effectively, in that the board can work in divisions at different times. That is provided for in the Bill but it would be precluded if a quorum of five members was required. In any event, I do not believe that five members of the board will be involved in every appeal decision. It would be a waste of resources.
As it stands and subject to what we may do on Report Stage, the Bill provides that the board should be made up of six members and a chairperson. The board has worked effectively with a quorum of three and I do not see any reason for changing it at this stage. Members will be aware that it is current practice to bring any controversial or complex planning decisions to a meeting of the full board. Section 97(3) reflects that procedure.
Amendment No. 450 would require divisions of the board to have not less than three members. This was included in the text of the Bill in response to the Seanad debate and is set out in section 97(2). Therefore, that matter is already covered. What the Deputy is proposing in amendment No. 439 would not be an improvement for the board.
Amendment, by leave, withdrawn.
I move amendment No. 440:
In page 105, subsection (3), line 37, after "occurs" to insert "or is due to occur".
Section 93 provides that the Minister must take steps to fill a vacancy which occurs on the board as soon as may be. As currently worded, the section could be read to mean that the Minister may only move to fill a vacancy after it occurs. The amendment is, therefore, intended to ensure the recruitment procedure can start as a vacancy is due to occur, which is currently the procedure. It will speed things up.
Amendment agreed to.
Section 93, as amended, agreed to.
Section 94 agreed to.
Amendments Nos. 441, 442, 443, 447, 448 and 475 are related and may be discussed together by agreement.
I move amendment No. 441:
In page 106, between lines 31 and 32, to insert the following subsection:
"(2) The Chairperson shall assign a member of the Board to review the file on every planning appeal, referral or other planning function of the Board and it shall be the duty of that Board member to prepare a report having read the full file, particularly the inspector's report. This report shall summarise the planning issues and contain a recommendation for decision by the entire Board or any three members of the Board. After a decision on a planning matter is made the report and recommendation of the individual Board members shall be attached to the file and made available for public inspection.".
This amendment relates to the functioning of the board. The issue I am trying to deal with in this batch of amendments is one that was considered by the committee on a previous occasion when we invited the chairperson of An Bord Pleanála to attend. It concerns what happens in a case where the board departs from the report or recommendations made by the board's own inspector.
A number of planning decisions have been made in which the board departed from the inspector's report, which of course it is entitled to do. That concerns me, particularly in cases where an inspector conducts an oral hearing, hears all the various opinions of different interests, and makes a report and recommendation, yet the board decides to depart from it. I accept the board has that right, but where it departs from the inspector's report, procedures should be in place which set down clearly a stated reason as to why the board is doing so.
The effect of the amendments would be to create a chain of reportage from the inspector, whose report is available, through to when the file goes to an individual member of the board. I am suggesting that if that board member makes a recommendation to the board as a whole, which is at variance with the inspector's report, the individual board member should state that by way of a written report. Similarly, when the board comes to decide the issue, it should state the reasons for departing from the inspector's report.
I agree with Deputy Gilmore. I have tabled an amendment which is almost identical. The only difference between his amendment and mine is that I added the words "and electronic" when talking about the record. We have dealt with that issue before, however. For all the reasons adduced by Deputy Gilmore, I support the amendment.
There certainly is merit in the amendment, but I would like to know how far we can legislate for the activities of An Bord Pleanála. We dealt with this matter before when we discussed a situation where the planner's decision is not in keeping with health and safety or other reports on the file. Can we legislate to oblige An Bord Pleanála to provide reasons when its decision differs from the inspector's recommendation? If we can do that through legislation it would be great because I am all for openness and transparency. When the board's final decision differs from the professional advice it has received, it should have to explain to third parties or anyone else who inquires, how it arrived at such a decision which is contrary to the inspector's report. I wonder if we can legislate for that?
Amendment No. 441 would require the board member assigned to deal with the planning appeal to prepare a written report on the appeal for submission to the board, which would then be attached to the file. However, it is important to note that in practically all cases, files requiring a formal board decision contain reports, including the inspector's recommendations. The file, including the report, is examined by a board member who presents the file to the other members of the board. In light of the experience we have had, I do not think there is any need for a further report from the board member presenting the file summarising the planning issues and containing a further recommendation for decision by the board.
We are trying to streamline the planning system a bit more and I do not think the procedures outlined in the amendment would achieve that. The amendment would add another layer of bureaucracy to the system.
Amendments Nos. 442 and 443 would require a written record and, in the case of amendment No. 443, an electronic record of all decisions of the board to record who was present and who voted for or against a proposal. The amendment would allow a board member who disagreed with a decision to write to the chairperson and/or the Minister setting out why he or she disagreed with the decision. We discussed this in the Seanad, and I tabled an amendment which requires a record those present at the meeting and the numbers voting for and against the decision. That is set out in section 95(7). I am opposed to naming those who vote each way because I do not believe it would add substantially to our knowledge and I do not accept that members who disagree with decisions should be encouraged to complain in writing to the chairperson or the Minister, who is generally excluded from consideration of any individual file at present. This would be a retrograde step. The board acts as a collective decision-making body and the practice of writing letters to somebody if one disagrees with the decision would break up that collective responsibility, and that would not be a good idea.
Amendment No. 447 would require the board to fix a note on the file where it does not accept the recommendations of the inspector explaining why the recommendation is not being accepted. Similarly, amendment No. 448 asks that a departure from the inspector's recommendation would be given in a decision. We discussed this before. There seems to be a misunderstanding about the role of the board and the role of inspectors. The board, when reaching its decision in any case, must consider the inspector's report. That is one element of what the board must consider. The board must also consider the proper planning and development of the area, submissions which were made regarding the appeal and views of the planning authority which may be received by it. The board follows the main thrust of the inspector's report in about 90% of the cases - the instance of this is that high. If the board were obliged to accept the inspector's report in every case, there would be no point in having the board. It would be just as well to have the inspector and let him do it.
In the interests of transparency, the Bill provides in section 34(10) that the board must give the main reasons and considerations for its decision. In future, therefore, when the board disagrees with the recommendation of the inspectors, the reasons should be clear and on file.
As the Deputy mentioned, we discussed in great detail amendment No. 282, which had to do with local authorities and deviations from decisions, reports, etc., and I undertook to look at it again to see if we can make it even more transparent for the local authorities on Report Stage. Obviously we would apply equally to An Bord Pleanála anything which we would decide regarding making it more transparent for the local authority. When I look again at the section to which amendment No. 282 refers, I will look at this and see if I can bring forward a proposal on Report Stage to make it a little clearer. The use of the word electronic, which was raised by Deputy Dukes, will be dealt with along with the more general aspects of it.
Amendment No. 475 in the name of Deputy Dukes is associated with these amendments. That amendment would require the board to keep a minute of any meetings convened under the section to which this provision relates. I accept the principle involved in that and I will draft an amendment in that regard for Report Stage.
The intention of amendments Nos. 447 and 448 is not that the board must accept the inspector's report in every case. All the amendments seek to achieve is that an explanation should be given in the 10% of cases to which the Minister referred where the board's decision differs from the inspector's report. That is reasonable.
I undertook to look at that before Report Stage.
This group of amendments are quite important because there is an issue of accountability involved here. When the chairperson of An Bord Pleanála attended the committee, we were informed by the Clerk to the Committee in advance and certainly by the chairperson of An Bord Pleanála that we could not ask him questions about individual decisions. That is fair enough, and the board obviously insists that it must act independently and is not answerable for individual decisions. That is all the more reason the legislation should provide for a clear trail of reports, recommendations, decisions, etc., taken by the board. I agree with Deputy McCormack, that we are not asking that the board should automatically accept the inspector's report. If it did, there would not be any no need for the board and the inspector could do it all. What we seek is reasonable.
The inspector's report is not like a submission to An Bord Pleanála from a member of the public. The inspector's report is the primary document on which the decision is being made. The inspector is the person who will have inspected the site, examined the file, looked at the issues raised by the planning authority, etc., and he is the person who has been assigned by the board to examine the issue and make the recommendations.
The individual member of the board who gets the file is critical to the process and, as I understand it, in the overwhelming majority of cases the individual member of the board effectively makes the decision. It is only on rare occasions that the board, as a whole, departs from what the individual member decides. Therefore, the individual member is critical to this process. In a process which takes four months to complete, it is not adding to bureaucracy to provide that the person who makes the effective decision should put down on paper the basis on which the decision is made, either simply stating that he or she accepts the report or recommendation of the inspector or, if he or she is departing from the inspector's report, providing a record of why that is being done. The same should then apply to the board.
Similarly, it is not unreasonable that the identity of the members of the board who vote one way or the other on a decision should be recorded. If a decision goes to the Supreme Court and there is a split decision, we know which judges decided which way. I do not see why it should be any different for An Bord Pleanála. I accept entirely the point the Minister made about the board member disagreeing, writing to the chairperson, etc., and that is not an aspect of the amendment which I intend pressing. I will table the amendments again for Report Stage and the Minister indicated he will return to this then.
If we table a parliamentary question to the Minister about An Bord Pleanála, the Minister will state that he cannot answer it because it is a matter for An Bord Pleanála. While the chairperson and members of An Bord Pleanála were willing to attend the committee and speak frankly notwithstanding the constraints on them, nevertheless there is no place where the members of An Bord Pleanála can be asked about a particular decision. Bray Head is a controversial issue in the area. I could not ask about the decision in that regard although, in fairness, the chairperson of the board anticipated that I wanted to ask about it and addressed the issue anyway when he attended the committee. There is no way of questioning the board about individual decisions. Therefore, it is all the more important that the basis on which it makes decisions should be on record.
I agree with what Deputy Gilmore has said. It is common sense but there is a little more to it than that. As Deputy Gilmore stated, An Bord Pleanála inspectors are important people and they carry out a number of vital functions. They are widely regarded, therefore, as people whose opinions count for a great deal.
We are discussing confidence in the appeals process, a concept which is somewhat under threat at present. As the Minister is aware, the Irish people have a great propensity for believing conspiracy theories. Like Deputies Gilmore, McCormack and me, the Minister will be aware that questions have been raised in cases where decisions made by An Bord Pleanála do not coincide with the reports submitted by inspectors. There is no way those questions can be dealt with unless reasons are given for making of such decisions. In approximately 99% of cases, such conspiracy theories are wrong and I recall an occasion when we waited with baited breath for a document that was going to rock the foundations of the State but it never appeared.
Conspiracy theories seem to follow this pattern. Approximately 99% of them are without basis and there is a perfectly good explanation for what is happening. However, until one becomes aware of that explanation, there will always be a margin of doubt. We should do everything in our power to remove that margin of doubt from the appeals process because it is central to both development and the conditions in which people live. I will be interested in seeing what the Minister will propose on Report Stage.
I wish to reply to two of the points raised by Deputy Gilmore. As Members stated, the inspector is very important but the board member who presents the file to the other members of the board is also very important. However, he or she cannot make a decision on a file. I accept Deputy Gilmore's point that that person's recommendation would carry huge sway with the other members of the board but it is only a recommendation and it must be voted on.
With regard to a departure from an inspector's report, we have gone a long way in the Bill towards trying to make the position more transparent. If a departure is made from an inspector's report in the future, the individual responsible will be obliged to provide reasons for doing so. However, if we can find a way to make it more transparent we will bring forward an amendment on Report Stage.
Amendment, by leave, withdrawn.
Section 95 agreed to.
Amendments Nos. 442 to 444, inclusive, not moved.
Amendments Nos. 445 and 446 are related and may be taken together by agreement.
I move amendment No. 445:
In page 107, subsection (6)(b), line 35, after “authorisation” to insert “and that determination shall conform to the terms of that authorisation”.
Section 96(6) deals with the board giving a mandate to a member "finally to determine points of detail relating to a decision on a particular case". It would be worthwhile to add the qualification that, when a member is charged with such a responsibility, the board does not intend to deal with the case again. However, it would be appropriate to ensure that the action the member takes conforms with the authorisation given by the board.
This amendment, which again represents a belt and braces approach on the Deputy's part, is not necessary. However, for the purposes of absolute certainty I will accept it.
Amendment agreed to.
Amendment Nos. 446 to 448, inclusive, not moved.
Section 96, as amended, agreed to.
Amendments Nos. 449 and 566 are related and may be taken together by agreement.
I move amendment No. 449:
In page 107, subsection (1), line 44, after "Whenever" to insert "the Minister or".
These amendments involve two of the changes the Government is seeking to make to the Bill to ensure that consideration of infrastructure projects is handled speedily by all decision making bodies. They are intended to underpin the rapid delivery of infrastructure projects under the NDP. As it stands, the Bill provides that the chairman of An Bord Pleanála can divide the workload of the board to permit it to work in divisions. By working in divisions, the board can deal more efficiently with the larger number of decisions which are now being made. This procedure has also been used in the Supreme Court and has helped it to deal with a higher number of cases.
Amendments Nos. 449 and 566 provide that the Minister can order the board to work in divisions. They apply to planning appeals and referrals and the new work the board will undertake in relation to compulsory purchase and the other ministerial functions which are being transferred to it under Part XlV.
Amendment agreed to.
Amendment No. 450 not moved.
I move amendment No. 451:
In page 108, subsection (1), between lines 4 and 5, to insert the following:
"(c) the Chairperson may at any stage before a decision is made by the Board transfer any appeal, referral or other planning matter from a division to the full Board for decision on the basis of its size, complexity or significance.".
Section 97(3), which was inserted by the Seanad in response to an amendment similar to that tabled by Deputy Gilmore, covers what amendment No. 451 is seeking to achieve.
Amendment, by leave, withdrawn.
Section 97, as amended, agreed to.
Amendments Nos. 452 to 454, inclusive, are related and may be discussed together by agreement.
I move amendment No. 452:
In page 108, subsection (1)(a), line 20, to delete “section 107” and substitute “section 105 or 107”.
These amendments expand the list of peopleworking for the board who must comply with the prohibition on disclosure of information and people to whom an attempt to improperly influence a decision of the board must not be made. They bring the language of the section in line with section 100. Given that we are concerned with possible offences, it is important that the sections are clear and do not leave any loopholes.
The board can employ or use the services of people under a number of different sections and these amendments provide that any member or full-time employee of, consultant or adviser to, part-time employee or person from among the staff of the Department under section 107 appointed by the Minister to work for the board are covered by the same disclosure rules. Canvassing will not be allowed under the sections in question.
Amendment agreed to.
Section 98, as amended, agreed to.
I move amendment No. 453:
In page 108, subsection (1), line 38, to delete "an officer of, or consultant to, the Board" and substitute "an employee of, or consultant or adviser to, the Board or a person whose services are availed of by the Board by virtue of section 105(2) or 107”.
Amendment agreed to.
I move amendment No. 454:
In page 108, subsection (2), lines 42 and 43, to delete "officer of or consultant to, the Board" and substitute "an employee of, or consultant or adviser to, the Board or a person whose services are availed of by the Board by virtue of section 105(2) or 107”.
Amendment agreed to.
I move amendment No. 455:
In page 108, subsection (2), line 45, after "further" to insert "and shall disclose the communication to the Board".
Amendment agreed to.
Section 99, as amended, agreed to.
Sections 100 to 108, inclusive, agreed to.
I move amendment No. 456:
In page 112, between lines 3 and 4, to insert the following subsection:
"(2) Any consultant or adviser engaged by
the Board shall disclose any conflict of interest that may arise in connection with the work which he or she is contracted to perform.".
My purpose is to add a new subsection, which would require consultants or advisers employed by the board to declare any conflict of interest that might arise in order to apply the same requirements to them as to the staff of the board.
I accept the principle involved, but I am advised that it is probably better to provide for this in section 133 which deals with disclosure of interest. I will table an amendment on Report Stage to give effect to the Deputy's request.
Amendment, by leave, withdrawn.
I move amendment No. 457:
In page 112, subsection (2), line 6, after "relates." to insert "Each report under section 103 shall indicate on what matters the consultant advised the Board. Any reports provided by a consultant to the Board shall be made available for public inspection at the Board’s office on the third working day after the relevant decision was made by the Board. Consultant’s reports in this context shall also include any legal opinions the Board may have received.”.
The amendment provides that the annual report of the board would indicate on what matters consultants had advised it and that any reports provided by consultants to the board would be made available for inspection.
In accordance with the revised section 131, which was substituted by the Seanad, all documents relating to planning appeals and the board's decisions on CPOs and local authority development requiring environmental impact assessment will be made available for public inspection and purchase within three working days of the decision. That will also apply to documents prepared by consultants. Section 131 was revised in the Seanad in response to the debate on the availability of An Bord Pleanála's documents. Since 1995 all An Bord Pleanála planning files have been available for public inspection in accordance with planning regulations. The Deputy's amendment is covered by section 131.
Amendment, by leave, withdrawn.
Section 109 agreed to.
I move amendment No. 458:
In page 112, line 10, to delete "except that it will not apply to appeals under section 166(4)(b).”
I tabled this to establish why this exception is made? Perhaps the Minister might explain that.
The section states that chapter III of this Part applies to appeals and referrals under the Bill, except those under section 166(4)(b). The amendments seeks to delete this provision. Section 166 gives power to planning authorities to erect cables, wires and pipelines, other than water or sewerage pipes, across a person’s land with his or her consent. It restates section 85 of the 1963 Act. Planning authorities still use that section approximately 50 times per annum, but there has not been any appeal regarding its usage in recent years, according to the board’s statistics. Where an owner withholds his or her consent the planning authority may appeal to the board as this is essentially an appeal by a planning authority in a private matter between it and a member of the public. The procedures in this chapter relating to an appeal by a member of the public against a decision of the planning authority do not make sense. For that reason I ask the Deputy to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 110 agreed to.
I move amendment No. 459:
In page 112, subsection (2), line 17, to delete "subsections (3), (4) and (6)” and substitute “subsections (3) and (4)”.
Amendment agreed to.
I move amendment No. 460:
In page 112, lines 44 to 49, to delete subsection (4).
Under this section the Minister can vary the time which the board has to decide an appeal. It is set at 18 weeks under the legislation whereas it used to be four months. Under section 111(4) the Minister can make regulations varying the time in respect of different classes of appeals. If a period is set down in law for the board to make an appeal the Minister should not be permitted unilaterally to change that.
This power has not been used since its introduction in the Planning Act, 1992. The Deputy could have a point in asking why it should be provided for when it is not used but it would be useful to provide for a future reduction of the 18 week period. I do not envisage it being lengthened but depending on the prevailing circumstances I am reluctant to delete this provision because it is important. For instance, because of IT and new procedures or a reduction in the number of planning appeals it would not be appropriate that primary legislation would have to be passed to reduce the 18 week objective. It is a sensible provision, which I would like to retain.
If the provision is retained is the Minister barred from fixing a shorter period in which appeals could be heard? What is the maximum time allowed? At the end of the statutory period for dealing with appeals An Bord Pleanála is more frequently seeking to extend it for another similar period. If this legislation is passed without Deputy Gilmore's amendment, can the Minister of the day provide for the board to process appeals over a shorter period?
If the amendment was accepted, the 18 week objective would be removed and, therefore, the board could take much longer on appeals if it so desired. The legislation does not prevent the board from deciding planning appeals in less than 18 weeks but that is the objective which the board is supposed to meet. It was meeting it up to two or three years ago. Three years ago 92% of cases met this objective. That figure reduced to approximately 40%. Extra people were employed and the membership of the board was increased. The figure is in the 50s at this stage. The amendment would mean that objective would be removed entirely.
It is not good that only 50% of decisions are made in the time allocated. The right of extension is too loose. Can anything be done to strengthen the right to extend the appeal period beyond 18 weeks, never mind reducing it?
We have taken a number of different measures, including increasing the membership of the board and staff levels in direct response to the requests. We have responded positively and the Department of Finance has made provision for increases in staff numbers. It has not been able to fill the vacancies as quickly as we would have liked but that reflects the current labour market. It would not be realistic to reduce the 18 week objective because of the volume of appeals before the board. It strives in so far as it can to meet the objective. The percentage of decisions meeting the 18 week objective is rising and it must rise even further but we cannot improve on it too much.
I do not agree with the Minister's position.
Amendment put and declared lost.
Amendment No. 565 is related to amendment No. 461. I propose to take both amendments together.
I move amendment No. 461:
In page 112, between lines 49 and 50, to insert the following subsection:
"(5) Where the Minister considers it to be necessary or expedient that-
(a) appeals from decisions (of a specified class or classes) of planning authorities under section 34, or
(b) referrals of a specified class or classes, relating to development of a class or classes of special strategic, economic or social importance to the State, be determined as expeditiously as is consistent with proper planning and sustainable development, the Minister may give a direction to the Board to give priority to the class or classes of appeals or referrals concerned, and the Board shall comply with such direction.”.
This is part of the Government strategy to ensure strategic decisions are made speedily by courts or, in this case, the board. These amendments are equivalent to the earlier ones we discussed in relation to the courts but in this case they relate to An Bord Pleanála.
The amendments to section 111 in relation to general appeals and referrals and to section 204 in relation to the board's new powers on compulsory purchase provide that if a class of strategically important developments is coming up for consideration by the board, the Minister for the Environment and Local Government may direct the board to give priority to that class of developments, for example, road schemes. The Minister may not instruct the board to handle decisions on a specific development quickly, only certain types of developments where these are of special strategic economic or social importance.
These amendments are critical for the speedy provision of infrastructure projects under the national development plan.
My query relates to amendment No. 565 to section 204. The Bill transfers to An Bord Pleanála certain functions currently held by the Minister, particularly in relation to roads. Am I right that the Minister is transferring to An Bord Pleanála his power to approve road and motorway schemes? At present, a motorway or major road scheme is handled by the National Roads Authority. When the scheme is designed it is referred to the Minister, the Minister holds an inquiry and considers the outcome of the inquiry. That function will now be performed by An Bord Pleanála. Is it the Minister's intention to transfer any other ministerial functions to the board aside from those relating to roads? Is it confined to roads?
In relation to the first question, the Deputy is right. The motorway schemes and so forth will be transferred. The other functions being transferred are CPO functions, functions in relation to certification of EIAs and tolling schemes. The latter is dealt with in a separate set of amendments.
It is not section 204. The transfer section is in Part 14. I am a little concerned about the Minister's proposal to transfer these functions. Basically, he is transferring to An Bord Pleanála every awkward decision that is likely to come across his desk, such as approval of road and motorway schemes. The certification of EIAs relates to, in layman's language, waste facilities, incinerators and the like.
Is the Minister not transferring certification of EIAs to An Bord Pleanála?
The EPA has responsibility for EIAs in relation to waste management.
So where will certification of EIAs arise?
Water and sewerage schemes. It could also apply to large housing schemes or urban developments such as Temple Bar.
There is a problem with what the Minister is doing. The procedures that already exist for——
If the Deputy does not mind, Deputy Dukes is not present. Both he and Deputy Gilmore oppose that section of the Bill.
I will raise it then rather than in the context of section 204.
If that duty was transferred to An Bord Pleanála, where does the function of the National Roads Authority lie?
It proposes the schemes, as it does at present. The authority proposes the schemes and if people object to them, I have a duty to hold a public inquiry. I appoint an inspector to do that. When the public inquiry is completed the inspector writes up a report, deals with the various issues and the files arrive at my office in the Custom House. I then go through the procedure again.
The Minister intends to transfer that to An Bord Pleanála?
It is a rather invidious position for the Minister. He or she has a policy making function but at the end of the day, no matter what way it is dressed up, he or she ends up as judge and jury in the matter. From an environmental point of view in particular, it is important that there is transparency in the system. People should feel that once something is proposed or promoted by a Government or Minister, and it is Government policy that there be a proper road infrastructure in the country, the Minister is not the final arbitrator as to where that road should or should not be.
I would sooner have an elected representative making those decisions, because he or she is answerable to the public, rather than An Bord Pleanála. It is an anonymous body as we have seen in previous amendments. I am reluctant to accept the Minister's counsel on this.
We decided a long time ago that Ministers and politicians should be removed from the planning appeals process. That is what we are dealing with here.
I would not consider that a planning appeals process. It is the ultimate step in whether a road or bypass will be adopted after the earlier procedures and inquiries have been completed. I would sooner have that decision made by an accountable person, the Minister or some other elected person, rather than by a board that is not accountable to the public or to the Minister.
Amendment agreed to.
Section 111, as amended, agreed to.
I move amendment No. 462:
In page 113, subsection (1), between lines 12 and 13, to insert the following:
"(e) in the case of an appeal under section 36 by a person who made submissions or observations in accordance with the permission regulations, be accompanied by the acknowledgement by the planning authority of receipt of the submissions or observations,”.
Amendment agreed to.
I move amendment No. 463:
In page 113, subsection (1)(f), line 17, after “referral” to insert “which shall not be less than one calendar month from the date of the decision by the local planning authority”.
The time limits for making appeals or referrals to the board are set out in the sections concerned. What the amendment seeks to do is covered in the appropriate sections. One example is section 36(1)(d).
Amendment, by leave, withdrawn.
Amendments Nos. 465, 466 and 470 are related to amendment No. 464. Amendments Nos. 464, 465, 466 and 470 can be discussed together. Is that agreed? Agreed.
I move amendment No. 464:
In page 113, lines 24 to 30, to delete subsection (3).
This is about an appellant having to state the full grounds on which the appeal is based in the initial referral and then not being permitted to elaborate on that except to respond to other matters that are submitted as part of the appeal. That is restrictive. There are circumstances where an appellant may, after the initial referral, wish to submit additional information on foot of the appeal. There are circumstances where an appellant may, after the initial referral, wish to submit additional information on foot of the appeal. I recall that when this provision was introduced some years ago, it was to deal with the kind of situation which arose when somebody sent in a one line letter the day before the appeal was due to be submitted saying they wished to appeal against a decision and then whenever they got around to it, they sent in the material concerned. I agree with tightening that up and placing a requirement on the appellant to state the grounds on which he is appealing in the initial referral. However, the restriction which prevents an appellant from adding to that at a later stage is over-restrictive and needs to be looked at again.
In relation to appeals by the applicant, sometimes an applicant gets a planning decision but is not happy with a condition of that decision. At present if an applicant appeals a condition of a planning decision, An Bord Pleanála can start at the beginning and deal with the entire application. Why is that necessary if the planning authority has made a decision and the applicant is not satisfied with a condition of that decision? Why can An Bord Pleanála deal not deal with the applicant's appeal against the decision on its own merits without the applicant having to take the risk of the planning appeals board interfering with or changing the decision already made by the local authority?
Like Deputy Gilmore, I appreciated the reason this kind of provision was included in planning law but when one sees it in operation, one or two things seem a little anomalous. The Minister probably does not agree with me quite so much on this but it is very useful to have an oral hearing for major issues. The anomaly seems to arise from the fact that if an appellant, whether the original applicant or another person, is dealing with a case where there is an oral hearing, it is possible to amplify on the original submission to An Bord Pleanála during the course of an oral hearing.
Having been at a few such hearings, I found that the chairman of the oral hearing is quite punctilious in making sure people say all they want to say about the matters at issue. I will not say it gives a particular advantage but it gives more comprehensive treatment to appellants in the case of an oral hearing. I appreciate the reason this provision is there but we all know it can take some time for An Bord Pleanála to give a conclusion on an appeal.
There are some difficult cases, which do not end up in an oral hearing, where, given the nature of things, more knowledge becomes available to the parties concerned in the interval between the appeal being lodged and a decision being given by An Bord Pleanála. I am a bit uncomfortable about the fact that unless there is an oral hearing, the people concerned cannot bring that new knowledge to bear, whether it is the applicant who is the appellant, a third party or otherwise.
I wonder if we should provide some mechanism which would allow persons, if they come across new information or a new insight into the problem before the matter is determined by An Bord Pleanála, to make it available to the board. I am thinking along the lines of allowing persons to make further observations but of giving An Bord Pleanála the right to disregard them if the board believes they are not of substance.
In any case where people seek my advice on making an appeal to An Bord Pleanála - I am sure my colleagues do the same - I say to them to make sure they include everything, including the kitchen sink, because unless there is an oral hearing, they will not get a second chance. While one can never forecast exactly which issue will get an oral hearing, one has a pretty good idea which ones will not. In that case, such advice is particularly pertinent.
Would the Minister consider making a provision of that kind allowing An Bord Pleanála to decide whether the matter being added is of sufficient importance to merit consideration? I do not know how one would do that given the time delay because, of course, An Bord Pleanála cannot officially admit that it will not deal with the issue within the time limits laid down, although we know that is what happens in many cases. I am not taking sideswipes at anybody; I am just articulating the fact that there seems to be a difference of treatment between different classes of appellants which has more to do with whether or not there is an oral hearing than anything else.
I appreciate that Deputies who have spoken referred to the previous situation where up to 1992, when this provision was originally included in the Local Government (Planning and Development) Bill, a game of table tennis went on most of the time. Everybody waited until the last minute to submit his appeal. The grounds for appeal were circulated to the opposite side, they submitted their observations which were sent to the person who appealed and it went on for a considerable length of time. Since the amendment in the 1992 Act, that has been done away with and, by and large, there has not been a huge problem, although we have all had experience of this at some stage.
The difficulty which arose before and which would arise by doing what Deputies Dukes, Gilmore and McCormack suggest is that An Bord Pleanála would have to circulate the grounds of an appeal to other parties to give them a chance to respond to it. If people were permitted to give further grounds of appeal at a later date, those grounds would have to be circulated. That would inevitably slow the process down. I note the point Deputy Dukes made that if some startling new information came to light, could we handle that in some way. All I can say in relation to that is that if it is startling new information, the provisions of sections 116 and 117 allow the board to request further information. That is as far as I can go in that direction.
Would the Minister consider going one step further which might meet the requirement? If we have a situation where people can submit information after the date on which the appeal is submitted, we can get into the ping-pong business because everything has to go back to the other side. If, for example, there is a critical issue in relation to the planning history of the site and somebody discovers a critical document, drawing or a long lost decision that has been buried in some file which needs to be submitted and is genuinely something which could be critical to the decision, would the Minister consider a provision which would enable somebody to apply to the board for the admission of material? They would obviously have to state the case to the board.
The problem is with section 112(4)(b) which basically states that the board shall not consider any documents, particulars or other information other than documents it seeks itself. Even if something absolutely critical to an application turns up after the closing date for the appeal and no matter what anybody thinks of it, the board has no choice. That information does not get past the administrative officer; it is sent back.
There should be some provision where a case can be stated to the board and it would then be a matter for the board to decide to open it up. That gives the board control and it is not then in the hands of either party to engage in the ping-pong business. The board is in control of what is or is not admitted.
I appreciate what the Minister said about sections 116 and 117. However, their starting point is a little different. These sections provide that where requests by the board for submissions, observations or the submission of documents are not complied with, the board has the power to terminate the issue. Under section 116 the board can determine the appeal or refer it. Under section 117, if the documents are not provided the board can dismiss or otherwise determine the appeal. That is coming at it from a slightly different angle.
If a provision could be included in one or both of these sections where the board could act other than in the way provided for here it might satisfy the requirement. Sections 116 and 117 require the board to be of the opinion that it needs something else. The board may be, like the rest of us, inspired from time to time by the Holy Spirit. However, it will not always see from the same angle what the applicants or the interested parties might see. It might meet the case to have provisions in sections 116 or 117 that allowed people bring things to the attention of the board so that it might make a request.
As I said, I appreciate what the Deputies are trying to do. I remember the old system and I do not think it would serve anyone well to go back to it. I presume the Deputies are not suggesting that it would permissible to raise startling new information that become available after the four week period in which an appeal must be made.
That is the point. That extra four weeks is the modified version of ping-pong. That is the period during which people are informed of what is facing them in the appeal.
I do not want to encourage this, but the point about the way the system is at the moment is that, after the four weeks and the appeal is made, there is a four week period where, if somebody discovers some startling new information, they can submit it through a third party. It is only a back door, but I do not want to allow anything more than that in this kind of scenario. That is catered for in section 115(3). I do not think it would serve the board well to reopen the pre-1992 situation, which is the danger.
Amendment, by leave, withdrawn.
Amendments Nos. 465 and 466 not moved.
Section 112, as amended, agreed to.
I move amendment No. 467:
In page 114, line 2, to delete "fourteen days" and substitute "2 weeks".
Amendment agreed to.
I move amendment No. 468:
In page 114, paragraph (a), between lines 16 and 17, to insert the following:
"(iv) a copy of any submission or observation received during the course of the application prior to the decision of the local planning authority;".
This amendment proposes to add to what may be submitted to the board a copy of any submission or observation received during the course of the application prior to the decision of the local planning authority. In other words, the submissions and observations made to the planning authority would be made available to the board, in addition to the decision of the planning authority, the drawings and so on.
The planning appeals process has never required submissions made to the planning authorities to be passed onto the board when dealing with an appeal. This is because, in many cases, points made at the local authority stage are overtaken by events by the time the appeal comes to the board. The board considers cases ab initio. It is up to the appellants and persons making observations to make their views known to the board at appeal stage. Otherwise, the board could be lumbered with all sorts of submissions, only some of which would be relevant. That does not aid the efficiency of the decision making process. For that reason, I ask the Deputy to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 113, as amended, agreed to.
I move amendment No. 469:
In page 114, subsection (2)(a), line 24, to delete “four” and substitute “4”.
Amendment agreed to.
Section 114, as amended, agreed to.
Sections 115 and 116 agreed to.
I move amendment No. 470:
In page 116, lines 35 and 36, to delete subsection (2) and substitute the following:
"(2) Nothing in this section shall be construed as affecting any other power conferred on the Board under this Act to require the submission of further or additional information or documents.".
Amendment agreed to.
Section 117, as amended, agreed to.
Section 118 agreed to.
I move amendment No. 471:
In page 117, subsection (3), line 46, after "referral." to insert "In the event that the Board decides not to hold an oral hearing on a particular appeal or referral it shall refund any oral hearing fee to anybody who requested an oral hearing.".
This amendment seeks to provide that in cases where the board decides not to hold an oral hearing it will refund the fee submitted by the applicant for the oral hearing to the board. At the moment, when somebody appeals a decision, they submit a fee to appeal and, if they seek an oral hearing, they submit a further fee for that. However, if the oral hearing is not held the fee is not refunded. I have always considered that a pretty mean provision. If the board decides not to hold an oral hearing it should refund the fee. It will still have the fee for the appeal.
The basis for the fee, as the Deputy pointed out, is not for the appeal itself but for the consideration the board has to give to a request for an oral hearing. It is payable for the board's consideration of whether there will be an oral hearing, not for the hearing itself. On the basis of past experience, the proposed refund of the fee would be likely to lead to a very significant increase in the number of requests for oral hearings, as people would have nothing to lose by requesting a hearing. It is in the interests of an efficient planning system that appeals should be dealt with, where possible, by written submission. It is important to note the board does not dismiss requests for an oral appeal lightly. It has to do work in relation to the details of the file, the background of the case and so on. It is reasonable to have a fee for that.
Amendment put and declared lost.
Section 119 agreed to.
I move amendment No. 472:
In page 118, lines 1 to 3, to delete subsection (1) and substitute the following:
"(1) The Board or an employee of the Board duly authorised by the Board may assign a person to conduct an oral hearing of an appeal or referral on behalf of the Board.".
This amendment aligns the wording of this subsection closer to the wording of section 131(1) and clarifies that it is intended that an authorised employee of the board, for example, the chief planning officer, can assign an inspector to hold an oral hearing, and not just that authorised employees can hold hearings. The wording is somewhat ambiguous, as currently drafted. The amendment does not introduce any change of substance.
Amendment agreed to.
Amendment No. 473 is in the names of Deputies Gilmore and Dukes. Amendments Nos. 592 and 609 are related and may be taken together by agreement.
I move amendment No. 473:
In page 118, between lines 14 and 15, to insert the following subsection:
"(3) Where an oral hearing relates to a development which is within a Gaeltacht the person conducting the hearing shall
(a) conduct the hearing through the medium of Irish, and
(b) arrange for the provision of translation facilities for the benefit of persons who do not understand or speak Irish.".
The amendment is self-explanatory. This is a provision regarding an oral hearing which relates to a development within the Gaeltacht. I propose that the person conducting the hearing shall do so through the medium of Irish and arrange for the provision of translation facilities for the benefit of persons who do not understand or speak Irish. The amendment is confined to developments within a Gaeltacht area.
I clearly agree with Deputy Gilmore. There are other cases where this is done. Various employment appeal hearings must be structured in such a way that if the persons concerned speak Irish they are entitled to express themselves as Gaeilge. The courts tried to do this. If I am not mistaken, the Minister has been active in encouraging local authorities to provide facilities generally for people. Kildare County Council has on all its letter headings a statement "Is féidir gnó a dhéanamh trí Ghaeilge" and so on. Given the importance of planning matters, this amendment should commend itself to the Minister since it is four square with official policy of this and previous Governments.
I agree with the thrust of the amendment and the thinking behind it. I have been informed that in relation to oral hearings in the Gaeltacht, the board's practice is to appoint an inspector fluent in Irish and English so that Irish and English speakers are facilitated. The present arrangements made by the board are generally regarded as satisfactory. This matter arose in the Seanad also and I introduced an amendment to section 105(1) of the Bill which obliges the board to ensure it has sufficient numbers of staff competent in Irish to deliver a service through the medium of Irish. This caters for what the Deputies are seeking. I will point out a slight anomaly in adopting the amendments as they stand. A considerable portion of Galway city is a Gaeltacht area and if the amendment were accepted, hearings would have to be conducted through Irish. As most of the people who attend these appeals would not have a word of Irish, we would be accused of trying to keep people out of the system.
That is why paragraph (b) is included.
That is the reason earlier amendments drew attention to what was happening and to the impact of physical development on the erosion of the Gaeltacht. They amply illustrate that the Gaeltacht is in decline and the extent to which development is occurring, particularly west of Galway city. We spent much time discussing the Constitution this morning. The Constitution tells us that Irish is the first language of the country. If it is the first language it ought to be the first language in which appeals are conducted in the part of the country which is officially an Irish speaking area. If it turns out that parts of the Gaeltacht are no longer Irish speaking areas, which there are, that issue must be dealt with another way. Gaeltacht areas are either genuine Irish speaking areas or not and, if they are, the appeals should be conducted in Irish.
If, as the Minister said, An Bord Pleanála is capable of doing this and it is what happens in practice, I can see no objection to copperfasten it in the legislation.
Conducting an appeal in Irish and using translation facilities, as is proposed in the amendment, does not seem to be a sensible way of doing things because nobody there has a word of Irish. When there is an appeal in Rathcairn, County Meath, everyone will understand what is going on as Gaeilge and the board can cater for that. Not all Gaeltacht areas are in west Galway. For example, Dunnes Stores in Galway city is in a Gaeltacht area and there would be little point in conducting an appeal in Irish there when everyone speaks English. The board caters for conducting the hearings through the medium of Irish where appropriate. The Deputy spoke earlier about political correctness regarding women and about the National Women's Council, gender balance and so on. The reality is that areas deemed to be Gaeltacht areas, or which were deemed to be in the past, are effectively no longer Gaeltacht areas.
If it is any comfort to the Minister, if I were one seduced by political correctness, which I am not, I would follow a procedure followed by a party colleague of the Minister's. I recall many years ago when a colleague of the Minister's felt moved to break into Irish when talking to me about VAT on hurleys. That is political correctness. I could do that but it is ridiculous. I take the Minister's point, but some people living in Gaeltacht areas do not have the slightest interest in the Gaeltacht. They live in such areas because houses are more affordable. Businesses are located in Gaeltacht areas - the Minister just mentioned one - because it suits them. It is not that they particularly want to locate in such areas but they should accept the function of the Gaeltacht. It is like the discussion we had earlier - there have been discussions throughout the country on planning issues - about people building a house in a rural area beside a piggery and then they complain about the smell. As they knew what they were getting into, I have little sympathy for them.
However, being a realist and recognising that the Minister has a point, I would be happy if the Minister proposed an amendment to subparagraph (a) of the amendment which would provide that the hearings should be conducted through the medium of Irish save where there is agreement among the parties. That would mean if, for any reason, Dunnes Stores or a resident of a Gaeltacht area in Galway city were involved in an appeal and they did not want it heard through Irish, they could request that it be heard in English. If all parties agree to that there would not be a problem. It is important to establish the principle that because there are Gaeltacht areas, the reasons they exist in the first instance and that we have objectives, we should follow a consistent policy to ensure that business is done through Irish. If the labour relations machinery, the employment protection machinery and the courts can do it, I see no reason in the wide earthly world, as the Chairman might say, that An Bord Pleanála cannot do it too.
The Deputy seems to be missing the point. It is not a question of An Bord Pleanála not being able to conduct appeals through Irish, rather that parties to the appeal may not want the business conducted through Irish. If An Bord Pleanála conducts an appeal through Irish, it will deal with the people involved through Irish. Generally speaking, the board will try to facilitate somebody from a Gaeltacht area who wishes to conduct his or her business through Irish. I am not sure that Deputy Dukes's proposal would meet the objectives of his amendment.
There is perhaps another way of accommodating Deputy Dukes's suggestion, namely, that an appeal would be conducted through Irish if any of the parties to the appeal were to request that. There would be a difference between holding the actual appeal in Irish and allowing such a facility. If, for example, an appeal were to be held in Carraroe, that appeal should be conducted through Irish. If such an the appeal were to involve officials from Galway County Council, an industrialist and owners of holiday homes in the area who would not have an interest in Irish, they were all to arrive at a hearing which would be conducted in English in the Óstán Ceathrú Rua and a couple of local people were to arrive in and be permitted to make their case in Irish, that would be a nonsense in the heart of a Gaeltacht area. If hearings in Gaeltacht areas were to be conducted through Irish, people would know what they would be dealing with or the parties involved could reach agreement among themselves.
There would not be a problem with that happening in Carraroe. I do not disagree with what the Deputies are trying to achieve but if an appeal were to be conducted in Galway city and somebody were to demand that it should be heard in Irish, knowing that 95% of the people present would not have a clue what was being said, difficulties would arise. I agree that we should try to frame this objective in positive rather than defensive terms on Report Stage. It would not be possible to allow an appellant or third party to decide he or she wanted the appeal conducted through Irish while somebody else would want it conducted through English. We could probably draft an amendment which would give an appellant in a Gaeltacht area the right to decide he or she wanted the appeal conducted tré Ghaeilge.
The appellant could be the applicant and the applicant could be someone who does not have any interest in the Gaeltacht but wants to build a big mansion overlooking the sea to which all local people might be opposed.
The Minister is saying that he is prepared to give consideration to the interests and wishes of people who want these matters conducted through Irish whereas Deputy Gilmore and I are saying that we are prepared to give consideration to the interests and requirements of people who wish them to be conducted through English. That would be the proper way to view these matters in a Gaeltacht area.
If we had pure Gaeltacht areas.
The Minister is not entitled to have an opinion on that because the policies of successive Governments and the law in regard to Gaeltacht areas dictate otherwise. As far as administration is concerned, Irish is the language spoken in Gaeltacht areas. Deputy Gilmore and I are prepared to give consideration to people who find themselves in a Gaeltacht area and are not capable of conducting their business through Irish. The general rule should be that business in a Gaeltacht area is conducted through Irish except where certain considerations lead us to agree otherwise.
We are all on the one side in regard to this issue except that I tend to be somewhat more practical about it than the Deputies. Galway city is an example of a place where 95% of people are English speakers and where the Gaeltacht is nothing more than a line on a map. If I opt to use the word "shall" in an amendment, we will end up with oral appeals being conducted through Irish where the majority of the people, the applicant or the appellant will require translations. That does not strike me as being a particularly sensible or efficient way of conducting business. I will reconsider this issue and if the Deputies can come up with a solution prior to Report Stage, I would be delighted to hear from them. I would not have any difficulties in regard to areas such as An Ceathrú Rua, Connemara, Rath Cairn, Rinn etc. which are actual Gaeltachts.
I appreciate that the Minister is trying to be helpful. Deputy Gilmore would probably agree that we would be quite happy to amend subsection (3)(a) of the amendment to read “conduct the hearing through the medium of Irish, save by agreement between the parties”. If it were a case that the parties to an appeal in a particular part of Galway city did not have a word of Irish, they could agree to hold the hearing in English. However, if somebody who does not live in that part of the city were to state that the area is a Gaeltacht area and that the matter should be dealt with as Gaeilge, he or she is perfectly entitled to do that. That is the reason Gaeltacht areas exist. I know there is all manner of folklore about how Gaeltachts were added onto in the past but that is not our concern here.
The Minister greatly underestimates the cultural and linguistic interface which is Galway city. There is a type of pidgin Irish peculiar to Galway, and perhaps the hearings could be conducted through that medium.
Amendment, by leave, withdrawn.
I move amendment No. 474:
In page 119, lines 22 and 23, to delete subsection (8).
Amendment agreed to.
Section 120, as amended, agreed to.
Amendment No. 475 not moved.
Section 121 agreed to.
I move amendment No. 476:
In page 120, subsection (2)(b), line 3, to delete “fourteen or more than twenty eight days” and substitute “2 weeks or more than 4 weeks”.
Amendment agreed to.
I move amendment No. 477:
In page 120, subsection (4), between lines 22 and 23, to insert the following:
"(c) Where the Board specifies the content and publication of a newspaper notice it shall also require the applicant to erect a site notice with the same content in order to alert the public that people may make submissions on the proposed development within a specified time period and on payment of the appropriate fee to the Board so as to enable the Board to consider such submissions or observations before it determines the matter.”.
Section 127(4) enables the board to require any party to an appeal to give additional public notice, including notification in a newspaper. An amendment like this was tabled in the Seanad. As a result of that, I introduced an amendment to that section to clarify that the board's power can extend to requiring a site notice to be erected. This meets the main concerns of the Deputy's amendment. I understand the board usually requires this measure. The thrust of the amendment is already included in the legislation.
Amendment, by leave, withdrawn.
Section 122, as amended, agreed to.
Amendment No. 478 is consequential on amendment No. 480. Amendments Nos. 478 and 480 will be discussed together.
I move amendment No. 478:
In page 120, subsection (1), lines 23 and 24, to delete "Subject to subsection (2), the Board shall in the following circumstances” and substitute “The Board shall”.
This section relates to the powers of the board to dismiss appeals which are vexatious, frivolous or are made with the intention of delaying development or extracting money from the developer. Amendment No. 480 seeks to provide that the board, when deciding to dismiss a vexatious appeal, will have to give its reasons and considerations for the decision. This is the same as the new express requirement in this Bill for the board to give reasons and considerations for its decision on an appeal, for example. The board already does this but the amendment will state expressly the requirement. The amendment will also have the effect of deleting the requirement that the board is limited to considering the proper planning and development of the area. When considering a vexatious appeal, by its very nature it will not relate to planning. This limitation from the 1992 Act did not appear to be appropriate.
Amendment agreed to.
I move amendment No. 479:
In page 120, subsection (1)(a)(ii), lines 30 and 31, to delete “delaying the development or”.
We are dealing here with a situation where the board can dismiss appeals on the basis that they are frivolous, vexatious or without foundation. One of the conditions under which the Bill proposes that the board can dismiss an appeal without considering it is where the board is of the opinion that the appeal is made with the intention of delaying the development. One could make the argument that most appeals opposing developments are made with the intention of preventing developments from taking place. I appreciate the provision is getting at what are vexatious appeals and I believe the term "vexatious" would probably take account of the type of circumstances envisaged here.
However, appeals could be legitimately made with the intention of delaying the development. For example, if a planning application is submitted in the latter stages of a local authority's consideration of its development plan and an issue arises over the proper planning and development of the area which is being considered as part of the development plan, if it is the view, for example, of the appellant that the development should be delayed for some reason until after some new provisions are considered as part of the development plan, there might be perfectly legitimate grounds why an appellant would appeal the decision by making the argument that the development should be delayed. I do not think the appeal should be dismissed in those circumstances. Perhaps the type of circumstances with which this measure is intended to deal can be picked up anyway by the vexatious and frivolous criteria included in the legislation.
If I thought these issues could be dealt with under the vexatious criteria I would have left it at that. On the example the Deputy cites, why should an appellant or third party have the right to decide whether a planning decision should be delayed pending the outcome of a development plan? That is a decision more proper to the local authority itself. We are not talking here about genuine appeals because obviously every appeal leads to some delay, even if the appeal is not upheld. The provision is designed to try to prevent appeals made solely to delay developments. We have seen this happen. Delayed developments can increase the cost the developer will eventually incur before he obtains permission to begin a development. There is a direct link between the extortion of money from developers and this type of delay because developers who see their costs escalating while waiting for a decision on an appeal are often tempted to pay someone to drop the appeal. There is evidence this is happening and this type of behaviour is not acceptable.
However, I take the Deputy's point. I will not delete the wording proposed by the Deputy but perhaps I will make it a little more explicit that this is not designed to get at genuine appeals. If the Deputy is willing to withdraw his amendment, I will table an amendment to amendment No. 479.
I move amendment No. 1 to amendment No. 479:
In page 120, lines 30 and 31, to delete "the intention of delaying the development or" and substitute "the sole intention of delaying the development or the intention of".
Amendment to amendment agreed to.
Amendment No. 479, as amended, agreed to.
I move amendment No. 480:
In page 120, lines 42 to 44, to delete subsection (2) and substitute the following:
"(2) A decision made under this section shall state the main reasons and considerations on which the decision is based.".
Amendment agreed to.
Section 123, as amended, agreed to.
Sections 124 to 126, inclusive, agreed to.
Question proposed: "That section 127 stand part of the Bill."
I hope tomorrow to present to the committee an amendment to a much later section which deals with regulations generally. This will seek to specify the sections under which regulations will have to come before the House and be voted on and, therefore, by exclusion to specify those that do not have to be voted on. I am not making a general statement about regulations other than that at this stage I know the Minister will agree a greater number of regulations than are proposed at present.
Question put and agreed to.
Question proposed: "That section 128 stand part of the Bill."
I intended to oppose this section but as this issue has already been discussed on an amendment there is no point in repeating the argument.
Question put and agreed to.
I move amendment No. 481:
In page 123, subsection (1), line 23, after "referrals," to insert "the making of an application under section 36(5),”.
Amendment agreed to.
I move amendment No. 482:
In page 123, subsection (4), line 45, after "effect." to insert "An appeal shall not be dismissed solely on the grounds that the increased fee has not been paid unless the appellant is personally informed of the increase and allowed pay the full amount of the fee.".
People do not always know when the fee for lodging an appeal with An Bord Pleanála has been increased. If somebody submits an appeal with the incorrect fee the appeal should not be dismissed. What is the current fee for an appeal? I think it is more than £100.
It increases periodically. If the fee increases, say by £5, and a person who is genuinely not aware of the increase sends in the incorrect fee, the appeal should not be dismissed on that basis.
There is a notification period of not less than four weeks before the fees come into effect. That could be extended to about eight weeks. Most local authorities state the current fee on their literature. There is a case to be made for allowing further notice. It would be unfair and unjust for appeals to be dismissed on the basis of an incorrect fee. If we go the route proposed by the Deputy, how long does one allow people to send the incorrect fee? The system could be improved if further notice were given on fee increases so people will be fully informed, local authorities will have an opportunity to change their literature and so on.
I move amendment No. 1 to amendment No. 482:
In page 123, line 44, to delete the word "four" and substitute the word "eight".
Amendment to amendment agreed to.
Amendment No. 482, as amended, agreed to.
Section 129, as amended, agreed to.
Amendment No. 483 is in the name of the Minister. Amendments Nos. 484 to 487, inclusive, are related and may be taken together by agreement.
I move amendment No. 483:
In page 124, subsection (1)(a)(i), line 7, to delete "to the appellant".
These are textual corrections which do not introduce any change of substance.
Amendment agreed to.
I move amendment No. 484:
In page 124, subsection (1)(a)(ii), line 13, to delete "the hearing of".
Amendment agreed to.
I move amendment No. 485:
In page 124, subsection (1), lines 14 to 36, to delete paragraph (b).
This amendment is more than textual. I think I will withdraw it.
We had the substance of this argument already on an amendment.
Amendment, by leave, withdrawn.
I move amendment No. 486:
In page 124, subsection (1)(b), line 18, to delete “appellant’s”.
Amendment agreed to.
I move amendment No. 487:
In page 124, subsection (1)(b)(iii), line 36, to delete “the hearing of”.
Amendment agreed to.
Section 130, as amended, agreed to.
I move amendment No. 487a:
In page 124, between lines 47 and 48, to insert the following subsection:
"(3) A report prepared on behalf of the Board in connection with an appeal under the provisions of the law in force immediately before the commencement of this section shall upon such commencement be made available to the public at the offices of the Board.".
Since 1995 all inspectors' reports must be made available at the office of the board for inspection by the public within three working days of the board's decision. This is a requirement of the planning and development regulations, 1995.
Amendment, by leave, withdrawn.
I move amendment No. 488:
In page 124, subsection (3)(a), line 52, after “determine” to insert “within 3 working days following the relevant decision”.
Sitting suspended at 4 p.m. and resumed at 4.20 p.m.
I move the following consequential amendment:
In page 124, line 52, after "determine" to delete ", and" and substitute ".".
Amendment to amendment agreed to.
Amendment No. 488, as amended, agreed to.
Section 131, as amended, agreed to.
Amendment No. 490 is cognate with amendment No. 489 and they will be taken together by agreement.
I move amendment No. 489:
In page 126, subsection (7)(a), line 30, to delete “£1,000” and substitute “£10,000”.
These amendments bring the value of the declarable amount of shares into line with the Ethics in Public Office Act. It should be noted that the 1976 Act required declarations of shares the nominal value of which was £500 or over. This Bill requires a declaration of total value - £500 in 1975 is the equivalent of about £5,000 today. Given that an estimated 500,000 adults bought an average of £3,000 worth of Eircom shares, the situation could arise where neither many members of the board nor many local authority officials would be able to consider small, local telecom structures given their shareholding. This is not the intention of this section. It should also be noted that a special code of conduct on planning will have to be adopted by the members and staff of planning authorities and An Bord Pleanála under the Bill. In addition, the local government Bill will contain comprehensive provisions in relation to ethics and local authorities.
Amendment agreed to.
Section 132, as amended, agreed to.
I move amendment No. 490:
In page 129, subsection (8)(a), line 43, to delete “£1,000” and substitute “£10,000”.
Amendment agreed to.
Section 133, as amended, agreed to.
Sections 134 and 135 agreed to.
This is a new section. Acceptance of amendment No. 491 involves the deletion of section 136 of the Bill. Amendment No. 492 is an alternative to amendment No. 491 and they will be discussed together by agreement.
I move amendment No. 491:
In page 132, before section 136, to insert the following new section:
136.-Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.".
We have already discussed amendment No. 491 which replaces section 136 in its entirety. Deputy Dukes wishes to add a statement clarifying that if permission has been granted for development under the Planning Acts which are being repealed by this Bill no offence is committed. I agreed the clarification is necessary and it has been covered by the amendments I tabled in relation to the definition of unauthorised development in section 2, particularly amendment No. 33. It is now clear that enforcement action cannot be taken against developments which received permission under the 1963 Act and, therefore, the Deputy's amendment is unnecessary.
Amendment No. 491 is the type of amendment I like to see. It reduces the number of words and makes the purpose clear.
Amendment agreed to.
Amendment No. 492 not moved.
Section 136 deleted.
Amendments Nos. 494 and 497 are related to amendment No. 493 and they will be discussed together by agreement.
I move amendment No. 493:
In page 133, subsection (4)(b), line 5, to delete “may” and substitute “shall”.
This amendment seeks to delete "may" and substitute "shall" so that any person served with a warning letter in connection with an enforcement action will be required to make submissions, not just have the option of doing so. It is not enough to say that he may make submissions about what he is doing, he should be required to answer from the outset.
We have had many discussions about "may" and "shall". The wording as it stands deals with the situation in a more suitable manner. The amendment would provide that someone served with a warning notice about possible infringements of the planning code must make submissions or observations in response to the letter and will have one week only to do so instead of the four weeks currently allowed. The local authority would have another week to decide whether to enforce.
When I set out the new enforcement provisions, I deliberately set out a timeframe within which decisions on enforcement must be made, particularly to give assurances to the third party complainants, but those time limits must be reasonable. We must give opportunities to the developers who are alleged to have breached the planning code to prepare a response or put their house in order. These are only allegations in the first instance. The warning letters are intended as a device to try to stop unlawful development at the earliest opportunity without going through the expensive process of serving enforcement notices.
As for the 12 week time limit for the planning authority to decide on enforcement action, it is often difficult for local authorities to prosecute actions in court successfully. They must have a reasonable length of time to decide on an enforcement action. We must give them enough time to establish the facts and prepare an enforcement order that will stand up to challenge. The timeframe presented here is reasonable.
I hear what the Minister is saying but I have in mind three specific cases from my own area, two of which are cases where the local authority should long ago have taken enforcement proceedings and a third where the local authority has taken enforcement proceedings on a totally mistaken basis. It works both ways.
The Minister will be familiar with the story of the philologists discussing linguistic equivalence. A Spaniard asked if there was an equivalent in English to mañana and the response was there was nothing that conveyed quite that sense of urgency. This is what one feels about enforcement by local authorities. I do not criticise anyone in particular when I say this but we have all had the experience of speaking to a local authority about some structure that is being built which should not be built. It can take months to get any movement by a local authority. Eventually one is advised that it would cost several tens of thousands of pounds to take the case to court and that it might be advisable to resolve the matter without going to all that trouble. Meanwhile, people who are blatantly flouting planning laws get away with it and structures which should not have been built are allowed to remain.
I was slightly encouraged to see that the enforcement chapter of the Bill has a greater sense of urgency than has been in the law until now. I recognise that the Minister has set out to see that this is so. We must become downright savage about enforcement. It is very rare to find a bona fidecase of someone who unknowingly carries out a development which is flagrantly in breach of the law. I accept that occasionally people build porches or kitchen extensions and afterwards discover that they have infringed the law. However, quite often such people are descended upon like a ton of bricks. The old story is often true, that the bigger the crime the easier it is to get away with it. Anything we can do to put more pressure on people who deliberately flout planning laws and on local authorities to enforce the law should be done.
The Minister may tell me that "shall" is the wrong word here, that it would be oppressive and that four weeks would be preferable to one week. I would like to see a greater sense of urgency in all aspects of application of the law. I do not intend to die on the ditch for these amendments. However, where representations are made that something has been done which should not have been done, it is wrong that the person who is alleged to have contravened the law is merely given the option of making observations. The following is a likely example of what might happen in such a case. A person is given planning permission to build a house and he builds it near a neighbour. He also builds a garage. The neighbour then finds that the person has a plumbing business and has installed machinery in the garage for cutting copper pipes and so on. The neighbour complains about unauthorised use of a garage but when the planning officials come to inspect the premises they do not find the plumber cutting copper pipes. They decide it is perfectly normal for him to store a large stock of copper pipes and cutting equipment in his garage. The complainant is then forced to accept the infringement of the planning laws, which he cannot prove, and bad feeling is caused between neighbours.
There have been even worse cases of people opening unauthorised entries to a type of activity which is itself unauthorised and which is still going on two years later, in spite of enforcement notices. Adjoining landowners and residents are obliged to endure all kinds of nuisance but still nothing is done although the law is clearly being flouted. This happens under the law as it stands and is utterly unacceptable. Nevertheless, we say a person against whom infringements of this kind are alleged "may make submissions". I know that one is innocent until proven guilty but a structure is either authorised or not. A use of land is either authorised or not. If it is not and a complaint is made about it, the person whose conduct is being complained about should not be given the option of explaining himself or herself. He or she should be required to do so, and the sooner the better.
The area of greatest weakness in the entire planning system is enforcement. The person making a complaint in relation to an enforcement issue must be persistent in order to get the complaint through. This arises from the lack of resources and personnel in local authorities. Enforcement is the Cinderella of most planning departments, particularly now when there are large volumes of applications to be dealt with and increasing responsibilities being handed to planning departments under this legislation. A complaint about an enforcement issue is the last thing a planning authority wants to hear. That impression is given very often, even to the complainant. Very often the complainant must be extremely persistent before the planning authority will send someone to inspect the complaint. When the complaint is inspected the lack of enthusiasm with which the complaint is pursued sends a message that people responsible for developments which are marginally unauthorised will be allowed to get away with it.
There are two ways of dealing with this matter. One is by ensuring that there are laws and procedures to deal with enforcement. The second relates to personnel. At the time of the last local election the Minister and his party announced their intention to institute a local warden service. I thought this a very valuable proposal. A wide range of laws and by-laws must be enforced by local authorities. We have litter wardens to deal with the laws on litter, traffic wardens to deal with traffic matters, park rangers to deal with by-laws relating to parks and conservation officers to deal with architectural heritage legislation. It would be daft to have a general law enforcement structure which distinguished one garda for traffic matters, another for burglaries, another for offences against the person and so on. We have a police force which is responsible for the enforcement of law in general and, as matters become more complex, it has specialised divisions. There is a case for instituting an enforcement branch or inspectorate in the local authority service. This could provide a pool of personnel who would be, in effect, the local authority police to inspect planning complaints, identify breaches of planning regulations where a complaint has not been made and deal with parks matters, litter and the enforcement of various local authority laws and by-laws. Enforcement will not happen unless people are appointed to see that it does. At the moment there are no such people.
I do not disagree with anything the Deputies have said regarding the lack of enforcement of planning or any other area. We are dealing specifically with planning. That is why I outlined at the beginning of this process, and not just when the Bill was published, that this was one of the areas of particular concern which we would try to strengthen. I do not deny what Deputy Dukes said about lack of enforcement up to now, but a new regime is being put in place to try to remedy the serious deficiency that exists in the planning system. This section obliges local authorities to follow up, within a given timeframe, genuine complaints made by members of the public concerning breaches of planning control. Local authorities will be able to retain the fines imposed by the courts for such breaches and this will help them to finance the enforcement role they will undertake. There are also provisions regarding the right to refuse planning permission, subject to the consent of the High Court, to any developer who seriously fails to comply with previous planning permissions. We have increased the fines from £1 million to £10 million for convictions on indictment. There is a fine of £1,150 on summary conviction and in the case of an unauthorised structure the Bill provides for a minimum fine of £10,000, or the cost of the structure if it is less, on conviction on indictment and a minimum fine of £500 for a summary conviction. We are also including facilities for the introduction of heavy financial penalties for applications for permission to retain unauthorised development.
There is very strong legislative provision for enforcement. As Deputies rightly pointed out, lack of enforcement is a serious weakness in the planning system. Deputy Gilmore mentioned what is happening in his local authority in Dún Laoghaire. Increasingly more and more local authorities are adopting that type of approach to planning. The functions are divided and one section deals with current applications, another with forward planning and a third with enforcement.
The amendment seeks to insert the word "shall", a person shall reply to the notice that is served. We are giving them an opportunity if they wish - they may or may not - to reply to the notice that is served on them and make the case that it is not unauthorised or in breach of the planning laws. Irrespective of whether they do so there is a timetable to which the local authority must adhere. Under the new regime it must make a decision on the action it is taking and inform the person who made the complaint of it. Before this it was a case of persisting with the complaint and eventually the local authority might say it was a row between neighbours, it would cost a lot to go to court and its time would be better used making planning decisions. I accept what Deputies said in that regard.
Under section 137 if a person makes a representation in writing to a planning authority stating there is unauthorised development, where the authority is satisfied it is a complaint of substance it shall issue a warning letter under subsection (1) as soon as may be but not later than six weeks. That will give it an opportunity to investigate the complaint and ensure it is genuine. Irrespective of whether the person replies, the council must follow this procedure. We have all had the experience of making complaints to councils about unauthorised development and being told it would be looked after, but nothing happened. That will not happen under this Bill because the local authority will be obliged to inform the person of the decision it has made in the case.
I was delighted with Deputy Gilmore's contribution on the local warden service. We put forward this idea in our election manifesto. It will be in place on a pilot basis in five local authorities. As the Deputy said, it should enhance the service given by local authorities. Without pre-empting the pilot schemes I expect them to be a success. They will give greater credibility to local authorities. We can spend much time passing legislation giving responsibility back to local authorities, but if they do not pursue matters it is a futile exercise. In the past local authorities did not have the facilities to pursue issues and local government was brought into disrepute. The local warden service will be successful.
The point Deputy Dukes makes in his amendment is covered under the Bill. It is well catered for as the local authority must inform the person who made the complaint of the decision and people can pursue that.
Amendment, by leave, withdrawn.
Amendment No. 494 not moved.
I move amendment No. 495:
In page 133, subsection (4)(d), line 12, after “may” to insert “at any time”.
I am more anxious about this amendment bearing in mind that we are talking about a warning letter issued under subsection (4). The local authority has had a period of six weeks in which to decide whether there is a prima facie reason to believe there is a problem. It has concluded there is a problem and has issued a warning letter. It is proposed under subsection (4)(d) that the warning letter shall “state that officials of the planning authority may enter on the land for the purposes of inspection.”
It would put the fear of God into transgressors if it stated they could enter on the land at any time. We want to convey to them that we do not need their consent, and there is not much point in them being present to offer excuses, for the local authority to enter onto their land to find out what is going on. I do not know if this can be done within the law as it stands but we are dealing with a potential transgression. It is not stated that local authority officials may enter land for the purposes of inspection with the agreement of or following the giving of notice to the owner. The fact that they may enter at any time adds urgency to the matter.
I will accept the Deputy's amendment if he will agree to amend it to read "at all reasonable times." While generally there is no problem about entering land, there is about entering a person's house. This matter is dealt with in section 229.
The amendment to the amendment is agreed.
I move amendment No. 1 to amendment No. 495:
In page 133, subsection (4)(d), line 12, after “may” to insert “at all reasonable times”.
Amendment to amendment agreed to.
Amendment No. 495, as amended, agreed to.
I move amendment No. 496:
In page 133, between lines 19 and 20, to insert the following subsection:
"(5) A person who makes a written representation to a planning authority pursuant to subsection (1) shall not be subject to legal liability solely by reason of so making the representation.”.
I wish to ensure that a person who makes a written representation, an enforcement complaint, to a planning authority will not be subject to legal liability solely by reason of so making the representation. A person who makes a complaint that there is unauthorised development should not end up being sued by reason of making the complaint to the planning authority.
There is no reason to make this amendment as a person who makes a genuine complaint about suspected unauthorised development has nothing to fear. I am advised that the provision caters for a situation where a person makes a mischievous or malicious complaint. In such cases the usual rules apply. A person has a right to his or her good name. I speak from personal experience. Shortly after lodging an appeal with An Bord Pleanála I received a letter from senior counsel for the planning applicant who threatened all sorts of dire consequences. When I consulted a solicitor and barrister I was informed that I was perfectly within my rights to lodge an appeal provided I was not being malicious. I did not hear from the gentleman concerned again. A person has to be allowed to vindicate his or her good name. This provision maintains the balance.
What is a genuine complaint? A person can be factually wrong in making a complaint but it may not be malicious. He or she could be a very concerned citizen making a complaint about development for which he or she suspects planning permission was not obtained. We are dealing with written complaints to the local authority which are not necessarily published. A person who maliciously makes a false complaint to the local authority and publishes or circulates his or her complaint may leave himself or herself open to being held liable but the making of a complaint in itself should not open up liability.
It will not provided there is some basis to it. A person who decides that he or she does not like a garage next to a house and writes a vicious letter in which he or she states that it is an unauthorised development and that the house owner is a bowsie is not entitled to protection, but if he or she has reason to believe, having conducted a search in the local authority, that planning permission was not obtained and makes a complaint it will be deemed to be genuine. One cannot provide protection for those who decide to make a complaint just because they do not like somebody or a particular development. There will now be an obligation on local authorities to follow up on complaints. They will have to decide which are genuine but there should not be complete immunity - the amendment would have this unintended effect - to make any complaint one likes. I do not think we would get away with that. A person who has reason to believe that planning permission was not obtained and can stand over this will have nothing to fear.
Amendment, by leave, withdrawn.
Section 137, as amended, agreed to.
Amendment No. 497 not moved.
Section 138 agreed to.
I move amendment No. 498:
In page 134, subsection (2), line 11, to delete ", if appropriate,".
Subsection (2) reads: "Where the planning authority decides not to issue an enforcement notice, it shall notify any person to whom the warning letter was copied under section 137 and, if appropriate, any other person who made a representation under that section of the decision in writing within 2 weeks of the making of that decision.” I am proposing the deletion of the words “if appropriate”. I assume it is a drafting matter but if one were to delete the words “if appropriate” the subsection would still have the same effect.
I hope I will not have to reintroduce it on Report Stage but for now I will accept the amendment.
Amendment agreed to.
I move amendment No. 499:
In page 134, subsection (3)(a), line 14, after “notice” to insert “under subsection (1)”.
The amendment clarifies that the enforcement notice referred to in the section is that served under subsection (1). It does not make any substantive change.
Amendment agreed to.
I move amendment No. 500:
In page 135, subsection (5)(e), line 14, to delete “six” and substitute “6”.
Amendment agreed to.
We now proceed to amendment No. 501. Amendment No. 501a is an alternative while amendment No. 501b is related. I propose that they be discussed together.
I move amendment No. 501:
In page 136, subsection (12), line 11, to delete "ten" and substitute "10".
Amendment agreed to.
Amendments Nos. 501a and 501b not moved.
Section 139, as amended, agreed to.
Amendment No. 501c not moved.
I move amendment No. 502:
In page 136, subsection (2), line 29, to delete "under this section" and substitute "in accordance with subsection (1)”.
The purpose of this amendment is to clarify the section and the enforcement notice issued, namely, section 139. This is a point I meant to make in relation to Deputy Dukes's previous amendment. Section 140 is an accelerated procedure for the service of enforcement notices, where necessary. It covers one of the other points the Deputy made. I am sorry I did not advert to it at the time.
Amendment agreed to.
Section 140, as amended, agreed to.
I move amendment No. 503:
In page 137, lines 37 to 39, to delete subsection (7) and substitute the following:
"(7) Where an enforcement notice has been served under section 139, it shall be a defence to a prosecution under section 136 or 139 if the defendant proves that he or she took all reasonable steps to secure compliance with the enforcement notice.”.
The original wording of this subsection states that it shall be a defence of a prosecution under section 136 that a person took all reasonable steps to comply with an enforcement notice. However, a prosecution under section 136 does not require the prior issue of an enforcement notice and this restatement of the subsection clarifies that the defence of taking reasonable steps only applies where an enforcement notice has in fact issued.
Amendment agreed to.
Section 141, as amended, agreed to.
I move amendment No. 503a:
In page 137, subsection (1), lines 44 and 45, to delete "proceedings for a summary offence" and substitute "summary proceedings".
I have been advised that this amendment is a better way to express the summary proceedings issue. I do not know whether the Minister is——
We will take further legal advice on this. It is a very important amendment and we want to make sure we have the best possible advice on it. If the Deputy withdraws the amendment we will come back to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 504:
In page 137, lines 48 and 49, and in page 138, lines 1 and 2, to delete subsection (2).
When we were drafting the Bill I provided that any person could be authorised by way of regulation to take enforcement action - that is similar to the Waste Management Act, 1996. I am advised by the Attorney General, however, that there is a significant difference between the types of offences provided for under the planning code and the Waste Management Act, particularly with regard to the penalties involved, and that in these circumstances the best authority to prosecute summary offences is the planning authority through its officers. The removal of this power will not affect the general power that local authority officers have to prosecute offences on behalf of the authority. I propose this amendment, therefore, to delete the power to make regulations.
Why does subsection (1) include the provision "whether or not the offence is committed in the authority's functional area"? How can a planning authority bring proceedings for a summary offence in the functional area of another planning authority, or is this our urban councils again?
Again we are back to the position where some of the local authorities are very small, like small urban authorities, and the county council has the planning function in their functional areas. This will allow the county council to prosecute an offence in a UDC area.
The Minister is saying that if the UDC does not have a planning function, theplanning functions in that area fall within thefunctional area of the county council. Is that right?
That is right in one sense, but it could happen that a local authority in general, a small urban council, might have a planning function but might have a staff of only one. A major planning issue in the particular area may arise and this gives the county council the right to prosecute on behalf of the urban district council. It is purely a matter——
In that case it is taking action on an offence that is, strictly speaking, not within its functional area?
Amendment agreed to.
Amendment No. 505 is in the name of the Minister; amendment No. 506 is related they may be taken together, by agreement.
I move amendment No. 505:
In page 138, subsection (5)(a)(1), lines 26 to 30, to delete “, or from the date on which a declaration under section 5 is made by a planning authority or a decision on a referral under section 5 is made by the Board, whichever is the later”.
These amendments relate to the period within which enforcement action may be taken. My amendment seeks to delete the provision which permitted the prosecution of offences up to seven years from the date of a decision by the authority or the board on a referral under section 5 on what is or is not development or exempted development. The Law Society, in its submission which was also sent to Deputies, pointed out that the provision as it stands could allow for the seven year time limit to be circumvented as it could be automatically extended for another seven years if a declaration under section 5 was requested from a planning authority. Seven years in total is sufficient time for the prosecution of planning offences and any uncertainty should be removed from the provision. I propose, therefore, to delete this provision.
Deputy Dukes's amendment would have two effects. First, it would restrict the period in which offences other than those relating to breaches of the planning code under this Part of the Bill could be prosecuted to a maximum of five years. I am of the view that prosecution periods for all offences under this Bill should be the same. It is important that we have consistency, something we have talked about in relation to the various periods for development plans.
Second, his amendment would provide that if the register was not kept correctly in every detail by the planning authority, no enforcement action could be taken and it would put the burden of proof on the authority to show that it was properly kept. I agree with the Deputy's sentiment that the register should be properly kept but this amendment is not the way to achieve that. His amendment would introduce a major loophole in the law for developers who wished to defeat any enforcement action. Even a minor mistake on the register would cause an enforcement action to fail. I accept that is not the Deputy's intention but it would be entirely contrary to the wishes of third parties who could see well-founded enforcement actions being defeated on a technicality and, for that reason, I cannot accept his amendment.
Amendment agreed to.
Amendment No. 506 not moved.
Section 142, as amended, agreed to.
Sections 143 and 144 agreed to.
I move amendment No. 507:
In page 139, lines 48 to 50, to delete subsection (5) and substitute the following:
"(5)(a) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land which is the subject of the application is situated.
(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section where the rateable valuation of the land which is the subject of the application does not exceed £200.
(c) The Circuit Court may, for the purposes of paragraph (b), in relation to land that has not been given a rateable valuation or is the subject with other land of a rateable valuation, determine that its rateable valuation would exceed, or would not exceed, £200.
(d) Where the rateable valuation of any land which is the subject of an application under this section exceeds £200, the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court by order.”.
This amendment is intended to clarify the jurisdiction of the Circuit Court to hear planning injunction cases. Jurisdiction will be based on the rateable valuation of the property and the amendment also states that the Circuit Court will have the power to determine a rateable valuation where none has been set and that if the value is higher, the matter may be transferred to the High Court. The amendment makes no substantive change to the court's jurisdiction which is currently based on the £200 rateable valuation but it introduces certainty on the matter for persons seeking planning injunctions.
How will the Circuit Court go about assigning a valuation? I know our judges are very learned people but they seem to get more versatile as time goes by.
I presume that in the small number of cases where this might arise they would take advice from the Valuation Office. In relation to the broader question the Deputy raises about rateable valuations, it will be much easier and, hopefully, much more transparent when the new Bill is law for people to decide on rateable valuations, judges included if it comes to that. I imagine they will seek the advice of the Valuation Office.
How long would they have to wait for it?
Amendment agreed to.
Section 145, as amended, agreed to.
Section 146 agreed to.
Amendment No. 508 is in the name of Deputy Dukes; amendment No. 509 is an alternative and they may be taken together by agreement.
I move amendment No. 508:
In page 140, lines 37 to 45, to delete subsection (2).
Will the Minister explain this section because it is not entirely clear to me what is intended by it
Prior to the drafting of this Bill, many people adverted to the abuse of the retention provision. We are all aware of cases where, despite the issuing of notices from the council which might not have been speedily enforced, people proceeded with an unauthorised development. The council took action against such a person, the case ended up in court, in 999 out of a 1,000 cases the first thing a judge asked was if there was a planning application before the local authority for the development and, if there was, as there invariably was by the time the cases went to the court, the judge generally said that the outcome of the planning application should be awaited.
The provisions in section 147 are designed to try to ensure it will not be a defence for the person concerned to say in court that he or she has applied for permission. It makes it much clearer that if one proceeds with an unauthorised development, one commits an offence and we are trying to avoid that person finding a way around that. That is a layman's guide to the seciton. I do not know if that clarifies it.
Amendment No. 508 proposes the deletion of a subsection and amendment No. 509 proposes that a grant of rather than an application for retention permission should be a defence. The greatest cause of frustration in this area is that enforcement actions by local authorities have been stymied by people applying for planning permission or retention permission at the last minute. I am trying to eliminate that. It is not a defence that we should allow.
I appreciate what the Minister said. Is subsection (2) necessary in light of subsections (1) and (3)? If the Minister wants to retain subsection (2), I will not object to that. I tabled amendment No. 509 to draw out what the Minister had in mind in regard to subsection (2). It is nonsensical that a case could end up in court where a local authority had gone through this procedure. The defendant could appear and we would have to provide that it would not be a defence for the defendant if he or she could show that the local authority granted him or her permission to retain the development concerned. What would a local authority be doing in granting retention permission in circumstances like that?
I accept what the Deputy said. Local authorities will probably use their discretion in such cases. If a local authority considers it is likely that if a development had gone through the normal channels it would have been granted planning permission, such a case would not be high on the list of cases such an authority might pursue through the courts. If a person built an unauthorised development, he or she would have broken the law and he or she should pay for doing that, even if that person gets planning permission for the development at a later date. A number of developers have undertaken unauthorised developments and in nine out of ten cases a local authority would not order that such a development should be knocked down. The provisions in this section are one way of ensuring the retention provision, which is in place for legitimate reasons, is not abused by developers.
Amendment, leave, withdrawn.
Amendment No. 509 not moved.
Section 147 agreed to.
Sections 148 to 150, inclusive, agreed to.
I move amendment No. 510:
In page 141, subsection (1), line 29, after "economy." to insert "Before making any such order, the Government shall consult the relevant planning authority or planning authorities.".
This amendment proposes that we insert in law a requirement that the Government, planning agencies and the bodies referred to in section 150 would consult the relevant planning authorities before making such an order. I have heard the Minister speak on this matter. It is inconceivable that the Government would designate an area before doing so, but it would be reassuring if that requirement was explicitly stated in the Bill.
I am in favour of strategic development zones, although not everybody is. This is a good procedure. I am under some pressure to contemplate a similar procedure for housing, although I have not yet had time to do so. We may return to that when we receive the spatial strategy. Under that strategy issues will arise about the development of corridors, nodes and towns, about which I am not enthusiastic at present, but that is another day's work.
We should bear in mind that planning authorities will have to do a number of things. They will have to adopt a development plan, a rolling three year investment plan and all the matters we talked about the other day. They will have their own development plan. If we have strategic development zones of this kind, that potentially could result in a substantial change or addition to a county development plan. In the way it is being conceived, we could find cases where a planning authority went through the process of drawing up its development plan and during the life of that plan subsequently found this other proposal was being made.
If a strategic development zone is to work, as contemplated in the Bill, it could be quite a substantial installation. We are talking about something that would be comparable in size and effect to the current chemical industry concentration in Cork Harbour or something of that kind. We are not talking about a mere bagatelle of a development but something that potentially is rather large. If this works, strategic development zones will take the form of large industrial estates.
I hope the Minister will consider ways of encouraging local authorities, who will not have drawn up their waste management plans by then, to consider strategic development zones of their nature and for other reasons as being potential locations for thermal treatment plants. That would make a good deal of sense. Plants of that kind should be located in industrial estates for many reasons.
If strategic development zones work, they will be large enterprises and will be a substantial addition to the activity taking place in a planning authority's area. We should make specific provision for consultation with the planning authorities about them.
I agree with that point. We have moved beyond the stage in this country's economic development where there is a necessity for the type of nationally designated strategic development zone for which this Bill appears to provide. The Government initiates the process; it makes an order designating sites as strategic development zones and the planning authorities proceed to make the planning scheme for them. Will the Minister indicate the type of development he envisages? Obviously this provision has been included in the Bill for a reason. What developments does the Government have in mind for which the strategic development zone provisions of this Bill will be necessary?
Would it not be better to deal with the strategic development zone issue as a local or regional issue rather than an issue for designation by Government? The type of strategic development zone that might appropriately arise now, given how the country is developing, might be on a smaller scale than this provision implies. In other words, the new county development boards, for example, might identify possibilities for strategic development zones in towns which have not been doing particularly well. This process might be more appropriately initiated through bodies such as county development boards, although these boards do not appear to be included in the list of development agencies.
The time has passed for initiating developments such as the large industrial development that occurred around Shannon Airport. I doubt that we will see that scale of large concentrated industrial development again. I do not consider it appropriate or necessary, given the type of development we have seen in more recent years. In fact, there is a case for arguing for the integration of business parks, science parks and so forth with residential and other development.
I listened carefully to the Deputies. It is important to look at the genesis of this in view of their comments. If local authorities are given the right to designate strategic development zones on their own initiative, there will one, two or ten in every local authority area throughout the country. That is the reason the strategic development zones are generated by a different means, that is, through a development agency.
If the Government, by order and from time to time, designates one or more sites under this Part as a strategic development zone, it would do so at the behest of the development agencies. It would not be initiated by the Government but be carried out in response to a need perceived by, for example, the IDA, SFADCo, Údarás na Gaeltachta or other agencies. The zones are designed to be strategic and to have a national significance in relation to investment in factories and other inward investment.
Deputy Gilmore referred to science and business parks. We do not know where the next stage of development might be or what might be the area of growth in the future. It might be important, as it is in the IT area, to develop clusters of industries around the science or business parks. The amendment under discussion provides that there be discussions with the local authority before designation takes place. As the Deputy correctly anticipates, this cannot and could not work without some consultation or contact with the local authority. It will be necessary because these sites will have to be serviced by water, sewerage, electricity and so forth. For that reason contact will automatically take place.
I am not happy, however, to formalise that in the Bill. It cannot happen without the co-operation of the local authority so it is not necessary to provide for it. The Deputies will appreciate that we are talking about strategic development zones. For that reason, it is more proper that the initial decision and designation should be in the hands of the Government rather than local authorities.
Deputy Dukes spoke on Second Stage about housing in the context of strategic development zones. There was much merit in his comments and I am considering bringing forward an amendment on Report Stage to make it explicit that STZs could be used for the purpose of housing development. I am advised that as the Bill stands, they can be used for that purpose. However, it is important that it is explicit so I am considering an amendment on Report Stage. It might save the Deputy the trouble of bringing one forward.
I am delighted to hear it. If the Minister wishes to relieve my burden, he is more than welcome. We can probably do something worthwhile in that regard.
I accept that there is a need for pre-designation consultation with the local authority for the reasons outlined by both the Deputy and myself, that is, the provision of services. However, given that these are strategic development zones, there will not be one in every parish in the country. There is merit in the suggestion that there should be consultation with either the regional assemblies or the regional authorities before such designations are made. They will probably be carried out against the background of the national spatial strategy being in place. I am prepared to look again at this on Report Stage. It must be looked at in a slightly broader context than the local authority context.
With regard to the housing, I look forward to the Minister's proposal. It could be quite useful. There will have to be explicit consultation with the local authorities about the housing. They are, after all, the housing authorities.
As a matter of prudence and apart from the formality of it, although that is also a compelling argument for that, I advise the Minister to provide explicitly for consultation with the local authorities about this, not because I believe they should have an excessive say but because it would be a major addition to the development plan. It will require co-operation from the local authorities for it to happen and that should be done at the level of the planning authority concerned. It is fine to say we might consult the regional assemblies or regional authorities. However, without being disparaging of either, they do not have any powers. There is nothing they can deliver, whereas the local authorities can. It might be politic to make a specific provision for consultation with local authorities. I need not remind the Minister that he gave specific constitutional recognition to local authorities. It would sit well with that to accept the amendment.
The Deputy is rapidly convincing me.
I am delighted to hear it.
Part of the reason we want to take this course for strategic development is to ensure we can deliver rapidly in these areas once we have gone through the procedure. I was afraid the Deputy was proposing a formal pre-designation consultation with local authorities which would take time. However, he seems to be talking in terms of asking a local authority if it has any views on a proposed strategic development zone in its area rather than having a formal consultation period. Is the Deputy trying to ensure there is contact at local authority level and that local authorities make their views known? I cannot imagine a local authority refusing to do so but I accept the Deputy's point.
I cannot imagine it either. As regards the Minister's comfort and convenience, the danger is that local authorities will ask him for a strategic development zone in their areas.
We have already received some applications.
I can understand that. IDA Ireland, Enterprise Ireland, SFADCo or Údarás na Gaeltachta might approach the Minister or the Minister for Enterprise, Trade and Employment and with an idea to build a centre of excellence for an industry or sector. They might be looking at two or three suitable sites, one or more of which may straddle one or more local authorities, and may have a preference for a particular site, given its location, the type of activity it has in mind and its requirements in terms of energy and water supplies, sanitation, road access, etc. The process could be straightforward or complex. It would also need broadband communications if it is in the IT sector.
Such a project would be a substantial addition to the amount of infrastructural investment in that local authority bailiwick over a couple of years but it would not happen without telling the local authority in advance. It would help the local authorities to feel well disposed towards it if they were consulted about it, although they probably would be anyway. I am not saying the relevant planning authority or authorities should formally give their consent, rather I am talking about consultation. It would make for a better atmosphere between the development agencies, the Government and the local authorities if the Minister said they will be consulted.
I am convinced by the case the Deputy is making. The amendment will probably need to be changed because it states that "the Government shall consult the relevant planning authority". It may be more appropriate for a Minister or the relevant development agencies, such as the HFA or the NBA, to do that, particularly in terms of the housing amendments we have tabled. I accept the principle of the amendment and I will draft an amendment on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 511:
In page 141, subsection (3), line 36, after "relevant" to insert "national,".
I do not want to make too many arguments about this because I said regional authorities and regional assemblies are not considerable bodies in planning terms. The relevant national bodies are enumerated in section 150.
Amendment, by leave, withdrawn.
Section 151 agreed to.
Amendment No. 512 not moved.
Question proposed: "That section 152 stand part of the Bill."
Why are we putting this Part for strategic development zones in the Bill? They sound like an interesting idea and we all think we know what they mean. They are 21st century economic developments. Why do we need to do this?
Under section 152, the Government can decide to designate an area or a site as a strategic development zone. The development agency then has two years in which to prepare the draft planning scheme. I did not trace all the stages but the process takes a further six months because it scheme must be on display for 12 weeks, during which people can make observations, and the planning authority has another ten weeks in which to make a decision on it. This means the process takes two and a half years. The planning application must then be made. Could this not be done in the normal way under the review or variation of development plans?
The only practical effect of it appears to be that individual applications cannot be appealed to An Bord Pleanála. That is an attraction for the individual project in that it can be processed in a shorter space of time. However, the process is lengthy and I wonder if it is necessary or worth it. We talked earlier about directions being given to An Bord Pleanála to prioritise certain types of appeals. I wonder whether it would not be better to have these developments processed in the normal way, through the regular mainstream planning system? Provision should be made for speeding them up so that the board will be directed to deal with a project of critical economic importance as a priority. In that way, one would not experience the kind of delays that have been of concern in the past.
We are doing all those things, including speeding up the process with the board. The Deputy rightly identified, however, that the core advantage is that once the procedure has been completed one can be certain of obtaining planning permission within a month, if the project complies with the parameters of the scheme itself. A considerable time ago, there were stories of various firms - large multinationals and some of our own companies - deciding to locate elsewhere because of the alleged delays in our planning system. Basically, the Deputy is correct, although I would not agree with him fully concerning the timescale he mentioned for the strategic development zones' procedure. Irrespective of that, however, this procedure provides absolute certainty concerning planning permission once a strategic development zone has been established.
The reason the procedure for designating a strategic development zone is slow and cumbersome, as the Deputy said, is that we have an obligation to protect people's rights, indicate third party rights, and ensure that everybody has their say. The short answer to the Deputy's question is that we are front-loading the consultation period specifically for these areas. We are applying certainty to the planning conditions that will apply in a particular area, and that can be valuable in attracting inward investment.
Question put and agreed to.
Amendment No. 513 has already been discussed with amendment No. 129.
I move amendment No. 513:
In page 143, subsection (2)(b), line 1, before “submissions” to insert “written”.
Amendment agreed to.
Amendments Nos. 514 and 515 are related and may be discussed together by agreement.
I move amendment No. 514:
In page 143, subsection (2), between lines 4 and 5, to insert the following:
"(c) that the prescribed authorities referred to in subsection (1)(a) are required to furnish their observations within 8 weeks.”.
This amendment is designed to encourage people who have to make observations to do so within a reasonable period. Amendment No. 515 requires that those observations should be passed on to those who need to see them. I do not know if the Minister has concerns about the length of the period.
My concern is that the wording of the first amendment would make it compulsory for the prescribed bodies to make observations, even if they did not wish to.
Would the replacement of the words "are required to" by the word "may", deal with the Minister's problem?
I think it would be better to leave it as it is, Deputy.
Section 153(1)(a) refers to “the Minister, the Board [An Bord Pleanála] and the prescribed authorities”.
Section 153(2)(b) states:
that submissions or observations with respect to the draft scheme made to the planning authority within the stated period will be taken into consideration in deciding upon the scheme.
That is the coup de grâce.
Amendment, by leave, withdrawn.
Amendment No. 515 not moved.
Amendment No. 516 has already been discussed with amendment No. 77.
I move amendment No. 516:
In page 143, subsection (4)(b), line 27, to delete “ten” and substitute “10”.
Amendment agreed to.
I move amendment No. 517:
In page 143, subsection (5), lines 33 and 34, to delete "where approved, the planning scheme shall be deemed to be made" and substitute "where it is decided to make the scheme, the scheme shall have effect".
The existing text in subsection (5) refers to deciding to make a scheme, a scheme being approved and a scheme being deemed to be made. This amendment rationalises the text and there is no change of substance.
Amendment agreed to.
Amendment No. 518 has already been discussed with amendment No. 150.
I move amendment No. 518:
In page 143, lines 37 to 40, to delete subsection (6).
This amendment is important and I would like it to be put to the committee. When we discussed amendment No. 150, I indicated that I would resubmit it on Report Stage. I accept we debated this matter when discussing amendment No. 150, but this is all about front-loading the consultative process and avoiding appeals at the stage where individual projects are being considered. If we are going to do that, it seems pretty important that the decision should be made by the elected members of the local authority. I do not accept the idea that if the members do not make the decision within ten weeks that power will fall to the manager. That idea first appeared in the legislation on Travellers and there was probably some justification for it, given the historical experience of trying to get agreement on Travellers' halting sites. However, it is now beginning to appear more and more. It is not something that I like because it can be used in a distorted way within a local authority. If there is to be a grand plan for a strategic development zone, after which individual planning applications within that zone cannot be appealed to An Bord Pleanála, the decision has to be made by the elected members of the local authority for that to have any authority.
Where the elected members did not make the decision to approve the strategic development zone that would seriously undermine the democratic authority of such a scheme. If the decision falls to be made by the manager, this section effectively means that once the development agency draws up a planning scheme it has to be adopted. The consultation process is a bit of a cod because if the elected members fail to adopt it, it falls to the manager to do so and, presumably, he has to do it.
Yes. It is only to get the members to make a decision within a ten week period. They can make the decision to refuse it, amend it and pass it or accept it as it is. They have ten weeks to do so. That is a reasonable period.
Why let it fall to the manager?
Somebody has to make a decision in this life. They should make decisions and I presume they will.
Why do we not have a provision in all legislation stating that if a Minister does not make a decision, the Taoiseach or maybe the Chairman makes it?
One does not need that with this Government; we are all great at making decisions.
Sometimes one can get away with not making a decision.
One can always make a decision not to make a decision. Again, this relates to timescales, certainties and so on. Rather than allow people to sit on their hands and play to the gallery——
The Minister has a very poor view of local authorities.
I have a very realistic view of local authorities. I am a very strong advocate of local government but there are flaws and weaknesses in it. There are people at local level who are more than willing to make decisions but there are others who are not. There are those who will play to the gallery left, right and centre if they get the opportunity and those who will not and will act responsibly. This is very important. I cannot foresee a situation where members of a local authority will say they do not want a strategic development zone in their area. At the same time, if members do not revoke, refuse, amend or pass a scheme within a set time, they do not deserve to take the decision.
That is a matter for the electorate.
It is a matter for the Bill.
Section 153 (5) states that the "authority shall, by resolution". It has a statutory duty to do this. The authority shall decide to make a scheme, modify it or reject it. If it does not do any of those things within the ten week period and subsection (6) is not included, what would happen?
Limbo. No decision would be taken.
Could the Minister not find a commissioner somewhere to send in under some other Act?
We could do that under this Bill also. I would prefer the manager to make the decision.
Amendment put and declared lost.
I move amendment No. 519:
In page 143, subsection (7)(a)(i), line 47, to delete “a submission” and substitute “written submissions or observations”.
Amendment agreed to.
Amendment No. 520 not moved.
Section 153, as amended, agreed to.
On a point of order, earlier when the Chairman's curate was in charge, we adumbrated the possibility of having a break for about 15 or 20 minutes around now. Would that be possible?
If everyone agrees, I have no problem with that.
Sitting suspended at 5.55 p.m. and resumed at 6.20 p.m.
Amendments Nos. 521 and 522 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 521:
In page 145, subsection (2), line 5, to delete "shall" and substitute "may".
As I interpret this section, once a planning scheme has been submitted for a strategic development zone the planning authority has no discretion - it must give planning permission. The purpose of the amendment is to give the planning authority discretion. There may be reasons which may not relate directly to the planning scheme which might cause a planning authority to refuse planning permission.
Amendment No. 522 relates to whether or not an appeal should be made to the board. If the planning authority has no option but to grant permission then the only possible appellant to the board would be an objector, unless the applicant had grounds relating to the conditions which were attached to the permission. For example, the applicant, who might quibble some of the conditions, may wish to appeal to An Bord Pleanála but would be unable to do so.
I agree with the procedure whereby the State and its development agencies are in a position to give a sense of certainty to potential investors in the country and I see that this mechanism is a way to do that. However, there are practical difficulties. For example, a planning authority may say that an applicant is entitled to planning permission for his building but his design is awful and totally out of character with everything else in the neighbourhood. In such circumstances my understanding is that the planning authority does not have the discretion to refuse permission. There is a similar problem with An Bord Pleanála.
Amendment No. 521 would substitute the word "may" for "shall" regarding a planning authority's obligation to grant permission in an SDZ. Section 154 provides that a planning authority shall grant permission in an SDZ, but that is only where the proposed development meets all of the criteria set out in the planning scheme. The planning scheme will have already gone through the full rigours of the planning system via the elected members’ adoption of the scheme.
The guarantee of permission where the development is fully compliant with the planning scheme is the essential element, the certainty that is provided by the SDZs. Where the development does not or cannot meet the criteria by way of conditions being attached the authority has no discretion either. It must refuse planning permission.
There is no appeal to the board by a third party or an applicant because the applicant is trading the certainty of getting permission in this kind ofan area for his right to appeal. The local authority will have gone through an extensive public consultation process with a possible appeal to the board, if that is decided on before any further steps are taken. All the planning issues will have been resolved fully in advance. If I accept the amendment I may as well abolish the concept of the SDZs.
The Deputy mentioned cases of bad design. The local authority is obliged to take that into account in the decision process on SDZs. Section 152 refers to the planning scheme for the development zones. Section 152(2) states that "A draft planning scheme under this section shall consist of a written statement and a plan indicating the manner in which it is intended that the site is to be developed and in particular". The subsection sets out a number of paragraphs elaborating on this. Paragraph (c) refers to “proposals in relation to the overall design of the proposed development, including the maximum heights, the external finishes of structures and the general appearance and design”. All of those matters are to be dealt with during the consultation process. It is essential for the SDZs.
Amendment No. 522 is related in that it would provide for an appeal against a decision of a planning authority to grant permission in an SDZ in accordance with the planning scheme. This amendment would go against the intent of the SDZ designation to provide certainty and quick decision making. The public will have been involved in the whole process. The planning scheme may be appealed to the board. A further appeal, as envisaged by the amendment, would negate the pre-planning process. Again, I strongly oppose the amendment because it would remove the certainty the development zones provide regarding the time within which one will get a decision. This is not a unique concept; it is how things operate in the docklands area.
Amendment put and declared lost.
I move amendment No. 522:
In page 145, lines 13 to 15, to delete subsection (3).
Amendment put and declared lost.
Section 154 agreed to.
Section 155 agreed to.
Amendment No. 527 is related to amendment No. 523 and they may be taken together. Is that agreed? Agreed.
I move amendment No. 523
In page 145, lines 45 to 47, and in page 146, lines 1 to 47, to delete subsections (3) and (4).
This section is concerned with environmental impact assessment. Deputy Gilmore raised the issue of the resources available to local authorities. There is a serious question about the extent to which local authorities are equipped to make well advised judgments or critical assessments of environmental impact assessments or environmental impact statements. There are few local authorities, if any, which have qualified ecologists on their staff. In fact, a number of local authorities have few enough technical qualified staff to deal with the increasingly complex range of issues which face them.
Environmental impact statements and environmental impact assessments have frequently been controversial. It is only fair to point out en passant that some of the criticisms about the delays in the planning system have to do with the fact that environmental impact statements are often not done well or are done by persons who do not take account of all the necessary details. Where they become controversial, they become the cause of a delay in a project.
However, when we look at the contents of such statements and assessments we can only be confirmed in the belief that it is essential that they be part of the planning process, and that is the origin of amendment No. 523. Subsections (3) and (4) allow An Bord Pleanála in certain cases to dispense with the requirement for an environmental impact statement. The only cases in which that cannot be done is in relation to the interests of another member state of the European Communities or another state party to the Transboundary Convention. Where such a state says that it has an interest in the matter, one cannot dispense with this environmental impact statement.
I am not convinced that, where the law otherwise requires the preparation of an environmental impact statement, we should do away with that requirement. Environmental impact assessments and environmental impact statements are conducted for specific reasons and they were precursors of, and are closely associated with, the concept of sustainable development. I do not see how we can pretend - I know it is not in the Title of the Bill but it is in all our hearts - to be serious about the concept of sustainable development if we dispense in any case with the need for an environmental impact statement or an environmental impact assessment where the law otherwise provides for it. No case has been made for doing so. If certain people can make an application of the kind envisaged here and get a dispensation from An Bord Pleanála, it may be more convenient for them.
The Minister seems to recognise my concern because subsection (3)(b) states:
The Board shall, in granting an exemption under paragraph (a), consider whether - (i) the effects, if any, of the proposed development on the environment should be assessed in some other manner, . . .
I do not know what that other manner might be. There are provisions for environmental impact assessment specifically to consider the effects on the environment of certain kinds of proposed development, and it would be rather futile at this stage to be considering some other unspecified means of assessing the impact of a development on the environment. I cannot see any case for subsections (3) and (4) and I propose their deletion.
I support the amendment. The function the Minister proposes to give An Bord Pleanála in this case will seriously undermine its credibility. The Minister is proposing to give An Bord Pleanála the power to grant developers exemptions from the obligation to undertake an environmental impact assessment. The board is essentially an appeals board. If we stand the order in which development is considered on its head, it will place the board in a difficult position. One can imagine a situation where in the case of a particular development the board makes a decision on the basis of an direct application from a developer that no environmental impact assessment is required. The matter then goes to the planning authority. If there is then an appeal and environmental issues are at the centre of the appeal, the board would be completely wrongfooted. If the board were given this kind of prejudicial function in its own role as an appeals body, its credibility and authority would be undermined seriously.
I have some sympathy for the amendment. We often blame Europe for various things and I am afraid I must adopt that particular line in this matter. This is transposing the EIA directive into Irish law for the first time. We must include these provisions under the directive.
What is the specific reference in the directive?
Article 2, subsection (3), states:
Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.
In this event, the Member State shall:
(a) consider whether another form of assessment would be appropriate and whether the information thus collected should be made available to the public;
(b) make available to the public concerned the information relating to the exemption and the reasons for granting it;
(c) inform the Commission, prior to granting consent, of the reasons justifying the exemption granted, and provide it with the information made available, where appropriate, to their own nationals.
The Commission shall immediately forward the documents received to the other Member States.
I am grateful to the Minister for having read that out. My reaction is that it is clear that we do not have to do it. The directive states that member states may, in exceptional circumstances, etc., therefore we do not have to do it.
But one must provide for it in law in order that it can be done.
No. The directive states that member states may, in exceptional circumstances, etc., and, therefore, we do not have to do it. It is an option which is given to member states.
The principle of subsidiarity.
I do not want to argue with the Minister's advice but if I were him, I would think strongly about that. That provision is not untypical in European directives.
Or in Irish law. Irish law often states that one "may" do something or other.
No. The Bill is littered with the word "may". My thought is a little different. That is the typical result in a European directive where two, three or four weak kneed member states did not want to go the whole distance. It is the kind of fudge which is typical in European directives, especially in the days when unanimity was required for some of these things. That was inserted in order to get an agreement, but it was inserted because some member state or member states wanted the liberty not to have to apply this rigidly in all circumstances. It is an option which is given in the legislation. If the Minister would reflect on it from that point of view between now and Report Stage, he would be doing us all a good service and I would be grateful.
I will reflect on it from the legal point of view. As I said at the outset, I have some sympathy with the amendment but my advice is that we must ensure that all provisions of the EIA directive are transposed into Irish law as required. As a result, it is necessary to include this provision. However, I will have a look at it because I do not disagree with Deputy Duke's point of view.
I will table the amendment again on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 524:
In page 146, subsection (4)(b), lines 41 and 42, to delete “the appropriate period” and substitute “the period for making a decision”.
Section 34(8) of the Bill was substituted by a revised subsection in the Seanad which no longer uses the term "the appropriate period". This amendment merely reflects that change.
Amendment agreed to.
Question proposed: "That section 156, as amended, stand part of the Bill."
Part X of the Bill consolidates EIA law and places it in primary legislation for the first time. Having examined the text, we may be obliged to introduce a number of minor amendments on Report Stage to ensure that there are no gaps in the legislation. I wish to give notice to the committee that such amendments, if they arise, will relate solely to procedural matters.
We must also ensure that we do not introduce unnecessary gaps in the legislation.
Exactly. There would be a major gap if we removed sections 3 and 4.
Question put and agreed to.
Sections 157 and 158 agreed to.
Amendments Nos. 525 and 526 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 525:
In page 148, subsection (1), line 42, after "of" to insert "any".
This amendment is stylistic in nature. As it stands, section 159(1) states: "A local authority which is a planning authority shall cause an environmental impact statement to be prepared in respect of development proposed to be carried out within its functional area". The amendment proposes to insert the word "any" before the word "development" in order to make it clear that the first part of the sentence relates to the second.
We accept the fact that the sentence in question is not as tidy as it should be. The key clause was contained in the Bill, as published, but it was inadvertently removed when this subsection was substituted in the Seanad. That caused some confusion and was, perhaps, the reason the Deputy felt it necessary to improve the language used in the section. However, the difficulty with his amendment would be that EIA would be required for any development carried out by a local authority. I presume that is not what is intended because that would be far too onerous and could not be accepted. It is for that reason we are proposing the insertion of the phrase "to which section 160 refers" after the word "development". In my opinion it covers the same point.
The Minister's text could be read in the same way he believes the text I have put forward could be read. The word "development" is entirely non-specific.
Yes, but acceptance of my amendment would mean that the subsection will read "development to which section 160 refers".
The Minister is correct, that makes it more specific. I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 526:
In page 148, subsection (1), line 42, after "development" to insert "to which section 160 refers".
Amendment agreed to.
Amendment No. 527 not moved.
Section 159, as amended, agreed to.
Sections 160 to 162, inclusive, agreed to.
I move amendment No. 528:
In page 153, subsection (1)(a), line 1, to delete “Prescribed development” and substitute “Development”.
The purpose of this amendment is to delete the word "Prescribed". As a result, section 163(1)(a) will read “Development proposed to be carried out by a local authority . . . shall be carried out in accordance with this section and any regulations made under this section.”
I do not believe the Deputy intends that all minor works carried out by local authorities should be subject to the provisions in this section. It is essential that those provisions are confined to prescribed works and removing the word "Prescribed" might have the effect of applying them generally to all local authority works.
Am I correct in presuming that such works would be prescribed under subsection (2)?
They will be prescribed under subsection (1)(b). It is a Part X procedure. I am informed that the Deputies may have a point so I will reconsider the position before Report Stage.
The rule of thumb which should apply to local authorities in respect of Part X should be the same as that which would apply in respect of private development. I am familiar with a case where a local authority added a two storey extension to a house as part of a refurbishment scheme. It advertised the original refurbishment scheme under the old Part X procedures and obtained approval for it. However, the authority subsequently changed what it was planning to do - originally it had been planned to build a one storey extension - and added a two storey extension to the house in question. This meant that the house overlooked those beside it. In such circumstances, if the development had been private in nature planning permission would not have been forthcoming from the local authority. The view of the local authority was that the development was not prescribed because the value of the work was under £50,000. This is a controversial matter and representations have been made to the Minister of State, Deputy Molloy, in respect of it. In my opinion, local authorities must ensure that the rules governing their developments and those carried out by private interests are consistent.
I am not familiar with the case to which the Deputy refers but I do not disagree with his assertion. Local authorities should follow the spirit as well as the letter of the law.
This is not intended as a personal attack on the Minister, but I asked him who is responsible for prescribing works and he referred to section 163(1)(b). Section 163(1)(a) refers to regulations made under the section while section 163(1)(b) does not relate that to the regulations, not obviously anyway. Will the Minister do the prescribing without anybody else getting an opportunity to see the prescription?
We said that we would bring regulations before the committee.
The Minister did, but section 163(2) states "The Minister may make regulations providing any or all of the following matters", and it does not include these prescriptions. It refers to "any or all of the following matters", not "more than the following matters" and the matters are provided for in paragraphs (a) to (d). None of the prescriptions is provided for in these paragraphs.
We also have power to make general regulations. This subsection provides the power to make those regulations.
We will hear more about that some day surely.
Anon. I will examine this because there could be a certain contingency in this regard. It is worth examining again.
Amendment, by leave, withdrawn.
I move amendment No. 529:
In page 153, subsection (2), line 17, to delete "may" and substitute "shall".
This is the old chestnut.
The Deputy has a reasonable batting average with the "mays" and "shalls".
Amendment agreed to.
I move amendment No. 530:
In page 153, subsection (2), lines 21 to 23, to delete paragraph (b) and substitute the following:
"(b) requiring local authorities to-
(i) (I) notify prescribed authorities of such proposed development or classes of proposed development as may be prescribed, or
(II) consult with them in respect thereof,
(ii) give to them such documents, particulars, plans or other information in respect thereof as may be prescribed;".
This amendment is one of a group relating to the transposition of the Seveso directive which was inadvertently left out. The amendment provides that regulations can be made to allow local authorities to consult the Health and Safety Authority in regard to development where a risk to public safety could arise. The language is the same as that in amendment No. 233, which amended section 33.
This one of the Seveso group of amendments. Some cases have been brought to my attention where the scenario envisaged by the Seveso directive arises, in other words, risk exists. The developments took place before there was concern about such risk and they would not be contemplated if proposed today. Has there been consideration of how to address that? There are some difficult cases.
The honest answer is not at the moment. All the provisions in this group of amendments relate to future development. It is probably inevitable after a period that we will have to examine some existing developments and that has implications, for example, in terms of compensation and so on.
Amendment agreed to.
I move amendment No. 531:
In page 153, subsection (3)(b), between lines 46 and 47, to insert the following:
"(iii) where the proposed development relates to a Gaeltacht, state the likely impact, if any, that the development would have on the linguistic balance of the community,".
I think the Minister is considering this for Report Stage. I will withdraw it.
Do I detect a lack of trust?
Amendment, by leave, withdrawn.
I move amendment No. 532:
In page 154, subsection (4)(a), line 10, to delete “planning” and substitute “local”.
Amendment agreed to.
Amendment No. 534 is related to amendment No. 533 and they may be discussed together by agreement.
I move amendment No. 533:
In page 154, subsection (4)(c), lines 21 to 23, to delete “the next following meeting after receipt of the manager’s report, provided that members have at least one week to consider the report” and substitute “8 weeks after receipt of the manager’s report”.
A resolution under paragraph (b) must be passed not later than eight weeks after receipt of the manager’s report. Section 163(4)(c) states that it must be passed not later than “the next following meeting after receipt of the manager’s report”. The meeting could take place shortly after the manager’s report. If it took place the following week the members of the authority would not have a great deal of time.
The Minister has been quite concerned - rightly from his point of view, although not so perhaps from our point of view - with ensuring that people have enough time to consider reports, etc. that are submitted to them. The paragraph, as drafted, could produce a scenario where councillors must decide quickly and they might not make a good decision.
I agree with Deputy Dukes's remarks. My amendment seeks to achieve the same end. "The next meeting" is quite unreasonable. By all means, set a time within which a decision must be made but——
I will accept Deputy Dukes's amendment, but I will include the timescale proposed by Deputy Gilmore.
Yes, six weeks. We will amend Deputy Dukes's amendment to read "6 weeks after the receipt of the manager's report".
I move amendment No. 1 to amendment No. 533:
In line 4, after "substitute" to delete "8 weeks" and substitute "6 weeks".
Amendment to amendment agreed to.
Amendment No. 533, as amended, agreed to.
Amendment No. 534 not moved.
Amendment No. 536 is related to amendment No. 535 and they may be discussed together by agreement.
I move amendment No. 535:
In page 154, subsection (5), lines 27 to 32, to delete paragraphs (b) and (c).
Article 130.3 of the 1994 planning and development regulations excluded four types of works from the requirement of Part X of the regulations. Section 163, which replaces Part X of the regulations, included two of these types of works. Amendment No. 536 will incorporate all four in the legislation. Amendment No. 535 is consequential. We have gone back to what we had originally and we are consolidating the regulations in primary law.
I refer to subsection (6)(d) as proposed to be inserted by amendment No. 536. Is it the case that it does not have to apply to any development in respect of which an environmental impact statement is required? Is that the impact of subsection (6)(d)?
It goes to the board instead. The situation is exactly the same as it is at present. We are framing in primary law what exists in regulations.
At present planning authorities conduct Part X consultations, even where an environmental impact statement is required.
Part IX comes to the Minister and he makes the decision. Part X has the other procedures. The four different types of works excluded from Part X of the regulations, which is now section 163, are maintenance and repair, emergency works, works required by a court order or by statute and a development which requires an environmental impact statement, which is the former Part IX. We are not changing the situation.
Amendment agreed to.
I move amendment No. 536:
In page 154, between lines 32 and 33, to insert the following subsection:
"(6) This section shall not apply to proposed development which-
(a) consists of works of maintenance or repair, other than works which would materially affect the character of a protected structure or proposed protected structure,
(b) is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action,
(c) consists of works which a local authority is required by or under statute or by order of a court to undertake, or
(d) is development in respect of which an environmental impact statement is required under section 159 or under any other enactment.”.
Amendment agreed to.
I move amendment No. 536a:
In page 154, between lines 32 and 33, to insert the following subsection:
"(6) An appeal shall lie to the Board from a decision under this section.".
I propose that there should be a right of appeal of a Part X decision to An Bord Pleanála.
We had a long discussion on this and, in this case, I stand by the rights of democratically elected representatives to make their decisions and to not have them open to appeal. The board provides an appeal service in cases where planning decisions are taken by the executive arm of local authorities. The current system under Part X where members make the decision provides sufficient balance.
There are two points about that. One is that members do not have to make a positive decision regarding Part X. They can simply note the manager's report, in which case it takes effect. Arguably they have the power to reject, but they are not required to make a positive decision. The other is that there is a strong case for lining up what is effectively a form of planning permission for local authorities carrying out development with private developers and for keeping the procedures consistent. I do not see why there should not be an appeal to An Bord Pleanála.
A point can be made about delays. I will give one example. There was a development in my constituency to demolish a scheme of flats and to replace them with houses. It underwent the Part X procedure and, following completion of that, a complaint was made to the Minister's colleague, the Minister of State, Deputy Molloy. An attempt was made by some local representatives, myself included, to have the matter mediated at local level to try to progress matters and hammer out an agreement between the appellants and the local authorities. That did not succeed and it was referred to the Minister's colleague who ordered an environmental impact statement. The process delayed the demolition of the new housing scheme by a year and a half. We would have been better off if there had been a right of appeal to An Bord Pleanála about the development. No matter what the delays in An Bord Pleanála, it would not have taken that length for it to be dealt with. We would be better off with an appeal to An Bord Pleanála. There are occasions when there are grounds for examining what the local authority proposes to do. At the moment the appeal goes to the Minister and it can often take much longer to be dealt with than if it were dealt with by the board.
Deputy Gilmore said the appeal will go the Minister. Will the Minister change that or is there anything in the Bill to change that? The Minister is divesting himself of certain powers and functions under later provisions of the Bill. I have a good deal of sympathy for what Deputy Gilmore said. In addition to the arguments he advanced, would it be correct to say that, in the absence of a provision of the type Deputy Gilmore proposes, more issues may end up in court that need not end up there? While an appeal to An Bord Pleanála may take a long time, cases which go to court can take longer to process. If we were to follow Deputy Gilmore's suggestion, would we achieve a speeding up of what is a small number of issues which arise in this regard?
In any system there will always be one or two exceptions or cases where, as in the case cited by Deputy Gilmore, the relatively quick process of Part X does not operate. However, that is not a good reason for changing the system. The basic and fundamental principle is of local authority members making a decision on local authority development and there being no appeal against that. That is the fundamental point. Although there are signs that people are becoming increasingly vociferous in their opposition to local authority development, so far the Part X procedure has not generated widespread controversy. There have been objections at different times, but I am not sure that will remain the case. There are increasing signs that people do not want any type of local authority development beside them and they object to them to try to delay them. If democratically elected local authority members make a decision on a local authority development, there should not be an appeal in that case.
As anyone who is a member of a local authority will know and Deputy Dukes made this point earlier, an appeals system is built into the system as a whole whereby people can put their case to local authority members who listen to it and try to convey that to the management of the local authority. In the normal course of events, local authority developments cannot be appealed to the Minister. In the case to which Deputy Gilmore referred, the issue of the EIA arose. I am not familiar with the case and I do not know the details. However, it is probable that the development breached the EIA thresholds so it was correct that it should not take place. However, I do not know the details. The Part X procedure allows democratically elected members of local authorities to make a decision and it should not be open to appeal.
I disagree and this matter will have to be disposed of by putting the question.
Amendment put and declared lost.
Section 163, as amended, agreed to.
I move amendment No. 537:
In page 154, subsection (1), line 34, after "section 34” to insert “or under Part IV of the Act of 1963”.
It was always intended that the obligation to take estates in charge would include existing estates which have never been taken in charge. There was ambiguity in the text and this amendment clarifies that the provisions apply where permissions have been granted under the 1963 Act.
Is that an unqualified duty?
Amendment agreed to.
I move amendment No. 538:
In page 154, subsection (2)(a), line 50 to delete “section 38” and substitute “section 39”.
Amendment agreed to.
I move amendment No. 539:
In page 154, subsection (2)(a), line 51 to delete “section 40” and substitute “section 41”.
Amendment agreed to.
Section 164, as amended, agreed to.
I move amendment No. 540:
In page 155, subsection (1)(a), lines 34 to 38, to delete subparagraph (ii).
Section 165(1)(a) states that the Minister may, by regulations, provide that the provisions of this Act shall not apply in certain cases, specifically where the carrying out of a development is required to be authorised by or under any enactment etc. I do not know what this means.
The provision is intended to prevent development having to undergo two different sets of procedures. This section restates section 2 of the Local Government (Planning and Development) Act, 1993, the necessity for which arose from the Mullaghmore case. The section provides that regulations may be made which exempt the State from obtaining planning permission in two circumstances, the first being development in connection with public safety or order, the administration of justice or national security or defence. The second circumstance relates to development required or authorised to be carried out by or under any enactment. The Deputy's amendment would result in the deletion of that category of development.
The Deputy raises a valid point, namely that where works are covered by another statutory process, it is probably more appropriate to exempt them from the need to obtain planning permission in the normal way rather than granting them an exemption under this provision. However, that leads on to a separate issue; our exemptions in section 4 do not cover the possibility that an exemption is warranted because of an authorisation under another enactment which has adequate public consultation. I will consider this matter and return to it on Report Stage. The basic aim of this provision is to prevent the necessity of having to undergo two separate processes.
Am I correct in thinking that section 165(1)(a)(i) is the provision invoked by the Government to provide housing for refugees and asylum seekers?
That is covered by section (2)(a).
Amendment, by leave, withdrawn.
I move amendment No. 541:
In page 156, lines 28 to 49, to delete subsection (2).
This amendment proposes the deletion of subsection (2), including 2(a) which we have just discussed. I really want us to consider whether there is a better way to achieve these objectives. I am aware that situations will arise in which rapid reaction will be called for and, in limited circumstances, we would not have to undergo the entire public consultation procedure which accompanies public authority development. We should be wary of giving the Government the power to decide that something constitutes an emergency and, thereby, give it the power to override normal procedures.
Perhaps we should consider defining "accident or emergency". Under the corresponding provision in existing legislation, the Government has stated - and there is a valid case to be made for it - that the arrival of relatively large numbers of asylum seekers into this country constitutes an emergency which must be dealt with speedily. I can imagine that the same provision might be used if, God forbid, another big chunk of the coastline in County Wexford disappeared and rapid remedial works were necessitated requiring the pouring of huge loads of concrete.
That would be more likely to happen in County Kerry.
If concrete were available, we could use it.
Having to undergo these processes would mean that the best would be the enemy of the good and a situation could deteriorate further. Perhaps we should be more specific about the type of situations we envisage.
Obviously, it would be desirable to be more specific but there is always the danger that unforeseen circumstances could arise where six, seven or eight month delays could be encountered or where emergency legislation would have to be passed. The provision contained in the 1993 Act has been in existence for seven years and this is the first time it has been used. The provision is currently the subject of judicial review so I do not want to say too much about it. I believe the provision is necessary and I would not like to try to foresee the various circumstances in which it would be required. One tries to keep these matters as tight as possible but an unforeseen or unspecified emergency situation could arise.
I agree that the more one specifies particular circumstances, the more one excludes others.
Amendment, by leave, withdrawn.
Sections 165 and 166 agreed to.
Amendment Nos. 542 and 544 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 542:
In page 157, line 31, to delete "A" and substitute (1) Subject to subsection (2), a”.
As it stands, the Bill provides that a claim for compensation must be made within six months of the refusal of permission. This is the case under the 1990 Act. I am advised, however, that in the interests of justice we should give the courts the power to extend that period. This would allow people who are unable to claim compensation within that period because they are unwell or unaware that they were entitled to compensation to do so. Amendment No. 544 intends to achieve this. Amendment No. 542 is consequential on that amendment. It provides that the generous six month time limit is subject to this new power to extend the period for making application.
I am not clear why this is the case. Is this new?
It is and it is not. It was included in the 1963 Act, deleted in the 1990 Act and we are now advised to include it again in the interests of justice.
Has any case arisen since 1993?
What will be the time limit on applications for compensation?
It will still be six months, except that a person will be allowed to go to the courts and state a case why he or she did not seek compensation within the six month period.
Amendment agreed to.
I move amendment No. 543:
In page 157, paragraph (b), lines 36 and 37, to delete “on which the notice takes effect” and substitute “of the decision of the planning authority or the Board, as the case may be”.
Amendment agreed to.
I move amendment No. 543a:
In page 157, after line 41, to insert the following:
"(e) in the case of a claim referred to in section 182, the date of the approval of a scheme under section 83 or the date of complying with a notice under section 86, as the case may be,”.
Amendment agreed to.
I move amendment No. 544:
In page 158, between lines 7 and 8, to insert the following subsection:
"(2) The High Court may, where it considers that the interests of justice so require, extend the period within which a claim for compensation under this Part may be brought, upon application being made to it in that behalf.".
Amendment agreed to.
Section 167, as amended, agreed to.
I move amendment No. 544a:
In page 158, to delete lines 23 to 33, and substitute the following:
the removal or alteration of a structure consequent upon a notice under section 45.
the discontinuance with, or the compliance with conditions on the continuance, of the use of land consequent upon a notice under section 45.
the approval of a scheme under section 83 or the compliance with a notice under section 86.
the action by the planning authority under section 166.
the making by the planning authority of an order under section 190.
Amendment agreed to.
Section 168, as amended, agreed to.
Sections 169 to 171, inclusive, agreed to.
I move amendment No. 545:
In page 159, subsection (2)(b), line 42, to delete “14 days” and substitute “2 weeks”.
Amendment agreed to.
Section 172, as amended, agreed to.
I move amendment No. 546:
In page 160, subsection (3), to delete lines 21 to 26 and substitute the following:
"(b) if the development area forms part of the land comprised in the compensation statement, or includes part of that land together with other land not comprised in that statement, shall be so much of the amount of compensation specified in that statement as is attributable to land comprised in that statement and falling within the development area.”.
The amendment seeks to correct a printing error. Lines 21 to 26 of paragraph of (b) should be in one block of text rather than two. The present layout suggests that paragraph (a) is subject to the second Part of paragraph (b), which is not the case.
Amendment agreed to.
Section 173, as amended, agreed to.
Section 174 agreed to.
I move amendment No. 547:
In page 162, between lines 14 and 15, to insert the following subsection:
"(5) Save that compensation under section 174 shall be payable in any case of a decision under Part III involving a refusal of permission to develop land or a grant of permission to develop land subject to conditions, where that decision is justified by reference to paragraph 9 of Part I of the First Schedule or paragraph 5 of the Fourth Schedule or paragraph 9 of the Fifth Schedule where the applicant acquired the lands in question before the commencement of this Act or where the lands, in question were zoned for the use for which permission is requested prior to the commencement of this Act.”.
This is the introduction of a saver to apply in certain circumstances. It seeks to reverse the ruling out of compensation in certain cases where the applicant acquired the lands in question before the commencement of this Act or where the lands in question were zoned for the use for which permission is requested prior to the commencement of the Act. This is another Seveso Directive problem. There are a number of cases where, prior to the adoption of the directive, certain activities were carried on which are now being restricted because things changed afterwards. They did not change because of people involved in the development but for reasons completely outside their control. They are now both being restricted in the type of development they carry out and, under the provisions of the Bill as it stands, they are being denied access to compensation. This seems unfair on two counts.
This amendment would open up payment of compensation to persons who are refused permission on the basis that the proposed development would cause a hazard for people in the event of a major accident where the lands were acquired before the Bill comes into operation. As the Deputy has pointed out, this relates to the Seveso Directive on the control of major accident hazards. I cannot accept the amendment because it will open up the possibility of people speculating in land in the hope of getting compensation for a refusal of permission. All they would need to do would be to buy the land at any time before the Act is enacted in the hope that permission will be refused when they would be entitled to compensation. A case could be made for compensation if such reasons for refusal were innovative. In fact, the 1990 Planning Act provides that refusal of permission, where a proposed development would endanger public safety, shall be a non-compensatable reason for refusal. The provisions of this Bill are just a refinement of that principle and do not warrant a special case for the payment of compensation. The Seveso Directive applies not to existing developments, but to future developments.
That is not where I am coming from. I can understand the Minister might be advised that this provision would be used by people who want to buy land speculatively in the expectation that permission would be refused, which is not what I am about. There are a number of cases now where people who acquired land before we got all this wisdom and before these measures were taken find that they are being prevented from development because of something that happened since they acquired the land and over which they had no control. These people are being prevented from receiving compensation.
I do not wish to be indiscreet but I will give one example which I hope will not cause problems for anyone. In Cork city there is a gas storage unit in Tivoli Docks. There are a number of fairly old and in some cases picturesque residences nearby. These are well within the distances that are now regarded as being within the blast hazard from a gas storage depot. If one were to acquire any one of these residences and knock them down to build something else in their place - they would not get permission because they might be listed as historic buildings at this stage - they would be prevented from doing so because of the effects of the Seveso Directive. Yet people are living happily within the area concerned. This is because a gas storage depot or facility was put in place before we knew about these hazards. Second, I am told there are substantial arguments between professionals in the private sector and assessors in the public sector about the nature, degree and seriousness of the risk in many of these cases. I do not know where the right of this lies because I am a complete layman, that is, a total ignoramous in these matters, but it seems to me that where there is a sustainable argument, that should give us cause to reflect. I do not know whether the problem of speculation is that insurmountable. The Minister only needs to table an amendment including a saver with today's date on it and the problem will be solved. It would mean that where land was acquired after today's date this would not apply. That would prevent the possibility of anyone benefiting from speculation.
I would have to give it more consideration than that, Deputy.
I understand the Minister's point and I will give him a further note on the matter.
Amendment, by leave, withdrawn.
Section 175 agreed to.
Section 176 agreed to.
I move amendment No. 548:
In page 163, subsection (1)(a), line 17, after “otherwise” to insert “than by a deliberate act of the owner or of the occupier with the agreement of the owner”.
I may be at cross purposes with the text. I find difficulty in coming to grips with the concept of things which have been demolished by fire or otherwise. Would that include flood, earthquake and so on? We are talking about special provisions for structures which substantially replace structures demolished or destroyed by fire. The language is a little entertaining. What is the difference between a structure demolished by fire or a structure destroyed by fire or are the two related?
Furthermore, the Minister must be certain that the destruction or demolition was not a deliberate act by the owner or occupier at the time. I understand there is a hesitation regarding the definition of the circumstances in which structures are demolished or destroyed. Can the Minister explain what is behind this?
I am not sure how the planning authority can be aware that someone deliberately burned down a building. Even if someone is found guilty by the court, compensation might have been paid prior to that. Problems may arise if compensation were refused unless there was proof. I sympathise with the intent of the Deputy's amendment. If he is willing to accept a change in the wording I will accept the amendment. I wish to delete "a deliberate act" and substitute "an unlawful act" which would make it clear that the destruction of buildings is being referred to.
I move amendment No. 1 to amendment No. 548
In line 2, to delete "a deliberate" and substitute "an unlawful".
Amendment to amendment agreed to.
Amendment No. 548, as amended, agreed to.
Section 177, as amended, agreed to.
Section 178 agreed to.
I move amendment No. 549:
In page 163, subsection (1), line 39, to delete "notice" and substitute "decision".
Amendment agreed to.
I move amendment No. 550:
In page 163, subsection (1)(b), line 48, to delete “notice” and substitute “decision”.
Amendment agreed to.
I move amendment No. 551:
In page 164, lines 6 to 8, to delete subsection (2).
Amendment agreed to.
I move an additional amendment.
In page 163, line 47, to delete "subject to subsection (2).”
In the Government's grouped amendments Nos. 671 and 551 the reference to subsection (2) of section 179 should be deleted as it is no longer necessary following the changes already agreed to section 43. Therefore, the words "subject to subsection (2)” in section (1)(b) are no longer correct.
Additional amendment agreed to.
Section 179, as amended, agreed to.
Sections 180 and 181 agreed to.
I move amendment No. 551a: