(Cavan): I move that the Bill be now read a Second Time.
Under the Local Government (Planning and Development) Act, 1963, provision is made for appealing decisions of a planning authority to the Minister for Local Government. The decisions which may be appealed to the Minister fall into five broad categories (a) those relating to permission to develop property or to retain a structure in respect of which planning permission was not obtained, and in relation to the unauthorised use of property; (b) decisions by a planning authority taking the form of a notice served by authority on a property owner in relation to the preservation of amenities, be they trees, flora or fauna, or the creation of amenities, such as rights of way; (c) certain decisions relating to the payment of compensation by the planning authority; (d) the relaxation of building restrictions and (e) decisions of a procedural character, that is to say, dealing with services of notices of a property owner extending the time for bringing a claim for compensation.
The Act also provides that if any question arises in any particular case as to what is or is not a development or an exempted development, the question should be referred to and decided by the Minister. In this Bill Fine Gael propose to take all these powers of appeal from the Minister for Local Government and to give them instead to a new board to be known as the Appeals Board. The board, to be established under section 4, is designed to ensure impartiality, confidence and competence and to improve the operation of the Planning and Development Act throughout the country. When the present Act was going through the Dáil the Fine Gael Party, by numerous amendments, sought to have these powers of appeal vested in the courts. That view was not accepted by the Dáil and we had to be content to wait and see how the Act would work out in practice. It is now clear beyond shadow of doubt that the appeals provisions of the Act are not working satisfactorily; on the contrary, the appeals procedure is the object of widespread criticism, suspicion and distrust, and it is difficult to see how it could be otherwise.
Under the Act of 1963, provision is made for the hearing of appeals on oral evidence by any party. It is further provided that any such oral hearing may be conducted by a person appointed for that purpose by the Minister. Such person, normally an officer of the Minister's Department, is empowered to furnish a report to the Minister before the Minister gives his decision. Even with the best will in the world the Minister for Local Government cannot properly exercise his appeal powers under the Act if for no other reason than that the volume of work to be discharged by the Minister on appeals alone is too great. In the year ended 30th September, 1965, 979 valid appeals were submitted to the Minister. In the following year, 1,125 were submitted and in the year ended 30th September, 1967, 1,322 were submitted. During the year ending 30th September, 1965, 437 appeals were decided by the Minister. In the following year, 862 appeals were decided by the Minister and for the year ending 30th September, 1967, 991 appeals were decided by the Minister.
Some of these appeals were probably more important than others but in every case in which a citizen decides to appeal to the Minister, it must be taken that the matter involved is of considerable importance to that person. It is quite impossible for a Minister with his many duties—as Minister in charge of his Department, as a Deputy with constituency duties, as a member of a political Party and a Member of the Government—and while carrying on his functions in relation to these various activities, to bring a judicial mind to bear upon as many as 991 planning decisions in the space of one year. It must be obvious that in many cases the Minister will act upon the report of the civil servant dealing at official level with the planning appeal and merely rubber stamp it, dealing personally, so to speak, only with those cases in which special representations have been made to him. It is a delusion to think that decisions in planning appeals are at present the product of a Ministerial examination of the reasons why the planning authority made the decision in the first place, or of the arguments for or against the decision put in by the parties to the appeal.
Fine Gael believe that it is wrong that the Minister, who is a politician and the political head of the Department of Local Government, should be entrusted with giving judicial decisions in planning appeals, decisions which can add enormously to the value of property or, indeed, detract enormously from such value. As a politician, the Minister is subject to political pressure from many angles and it would be asking too much of human nature to expect the Minister not to be influenced by such pressure. In my opinion, it is asking too much of the present Minister for Local Government, who is the honorary secretary of his own Party, and who acts as Director of Elections from one end of the country to the other, and who, I think, would not be offended if I described him as being one of the people regarded as a director of strategy within his own Party, not to be unfairly influenced by the pressure which must be brought to bear on him as a result of his activities in the various fields I have mentioned.
The next question I should like to pose is: is there a demand for the Bill which I am now recommending to the House? I say there is a widespread demand for it. There is widespread dissatisfaction about the present system of appeals. As recently as last September, the Association of Municipal Authorities in Ireland, at its Congress in Tralee, passed this resolution unanimously:
That the Minister for Local Government be asked to amend the Planning and Development Act, 1963, so as to provide that planning appeals should be heard by the judiciary instead of the Minister for Local Government.
That conference is composed of representatives from all political Parties, including the Minister's Party. It is composed of representatives from practically all the municipal authorities in the State, and that was its recommendation and its demand. The executive of this Association of Municipal Authorities, as recently as last week in the City Hall in Dublin, also expressed dissatisfaction with the present planning arrangements and suggested that they should be preserved as a reserved function. The resolution I am relying on is the resolution unanimously passed after having been on the agenda circulated for a couple of weeks by the annual conference of the Association of Municipal Authorities in Ireland.
In order to make appeals affecting the property rights not alone of developers but also of adjacent property owners, and the public, real appeals in which the issues will be decided upon a mature consideration of the proper planning and development of a particular area and the other provisions laid down in the Act of 1963, Fine Gael propose in the Bill to establish an independent board which will devote its full time to dealing with planning appeals. It will be provided with such a staff as will be necessary to enable the board to function effectively. Lest one board should not be sufficient to deal with the number of appeals—which on present indications appear to be growing year by year: it will be noted that the total number of appeals dealt with in the year ending 30th September, 1967, was twice the number dealt with in the year ending 30th September, 1965—power is being given in the Bill to the Minister to increase the number of members of the board so that a second board will be available to deal with appeals. The second board would have the same powers and act in all respects in the same way as the permanent board to be appointed by the Bill.
In the complex society in which we live, it is obviously necessary that the State should play an ever-increasing role in public affairs. The stage has been reached, however, where the steadily increasing autonomy of the Government and the Civil Service has quite literally become a law unto itself. Most ministerial decisions made in the exercise of discretionary powers vested in them by various statutes are not subject to the authority of the courts, nor can they be effectively made the subject of an inquiry even by Parliamentary Question, by debates on the Adjournment, or in the course of debates on Estimates for various Departments. We have reached the stage in this country where the permanent head of a Department has refused to produce his files for audit purposes to the Comptroller and Auditor General. That is an indication of the stage to which the autonomy which the Civil Service claims to exercise has travelled. That is the sort of thing to which I say this Bill will put an end.
Decisions of Ministers are too numerous to permit of any scrutiny in order to avoid injustices which may arise in many cases. To continue to allow this great and increasing power of the Government—most frequently exercised by its Civil Service—to be exercised arbitrarily against an individual citizen or business company— and by "exercised arbitrarily" I mean exercised according to their own will—is at complete variance with our sense of justice and fair play. Most European countries have some form of protection against arbitrary decisions by the executive Government. In France they have what is known as the Conseil D'État. In Sweden, in Finland, in Denmark, in Norway and in New Zealand, they have in one form or another an officer corresponding to the Ombudsman about whom we hear so much in modern times. In England recently they introduced the Parliamentary Commissioner as the result of a demand from the public for someone to stand between the rights of the citizens and the powers of the executive.
In this country we have never publicly recognised the need for any officer who would have supervisory authority over decisions of Ministers in those areas in which Ministers exercise a discretionary administrative power. It is true, however, that in certain fields, we have recognised the necessity for entrusting decisions to judicial or quasi-judicial officers. Under the income tax code, we have the Special Commissioners of Income Tax who sit publicly, give their decisions and are independent. Under the Land Acts, we have the Lay Commissioners of the Land Commission who have evolved a system which, on paper, would never appear to work satisfactorily in that appeals are taken to the Lay Commissioners from administrative decisions already taken by themselves, but in practice, the Lay Commissioners of the Land Commission, sitting and acting judicially, have given the utmost satisfaction to those appearing before them.
A feature of cardinal importance in the case of the Lay Commissioners of the Land Commission is the fact that they are quite independent of the Government and of the Minister in their constitution and the terms of their appointment. That is probably why they have always been able to exercise their powers judicially, irrespective of the wishes of a particular Minister or of the pressure sometimes sought to be exercised by groups organised in relation to a particular holding of land.
Under the Social Welfare Acts, we have the appeals officers. We have the acknowledgement by the Government and the Minister for Social Welfare that appeals officers are necessary. While these appeals officers are not all that could be desired, in that they are permanent officials of the Department of Social Welfare, they still act independently of the Minister and give independent decisions, having heard the submissions and the evidence. Much more important is the decision of the Government in relation to the Redundancy Act of 1967. When the Bill was introduced, it provided that appeals be taken to an appeals officer under the Social Welfare Acts, but it is very much to the credit of the Minister for Labour that he accepted an amendment by Deputy Jones of this Party providing for an appeals tribunal of the sort I am now advocating. We believe that as a result of that amendment, the Redundancy Bill of 1967 left the House a much better instrument than when it came in.
It is an interesting coincidence, perhaps, that it was the same Deputy who, as shadow Minister for Local Government in 1963, strongly advocated an appeals board in relation to the Planning and Development Act which I now urge. He took the view then that it was wrong that appeals should be decided by a Minister just as in 1967 in the case of the Redundancy Bill he took the view that it was wrong that important decisions under that measure affecting workers and employers should be made by a civil servant. He did not succeed but he endeavoured to persuade Deputy Blaney to amend the Planning Act. He succeeded in persuading the Minister for Labour to amend the Redundancy Bill. I trust that the present Minister will follow the reasonable example of the Minister for Labour and accept this Bill.
In this Bill, Fine Gael proposes that the new Board shall consist of a chairman, who shall be a judge of the Circuit Court, the High Court or the Supreme Court and two other members, one to be drawn from a panel of members nominated by the Minister for Local Government and another to be drawn from a panel to be constituted by the Local Appointments Commissioners. The persons drawn from the panels must be a qualified civil engineer, a qualified architect or a qualified town planner.
The purpose of appointing a judge of one of the courts to act as chairman and to give the decision having heard the parties to the appeal is to give a new confidence to the public in planning appeals. In our society no better system of obtaining fair play and justice for all concerned has been devised than the machinery of appointing judges who are absolutely independent in the exercise of their judicial powers. The system of judicial appointments in this country has worked well and has given general satisfaction to the community. No doubt in individual cases, individual persons will harbour a sense of grievance because a particular judge has not seen things their way. There must be a loser in every contest before a judicial person but the public has an unshakeable belief in the impartiality and incorruptibility of our judges and it is for this reason that Fine Gael proposes that a judge should be chairman of the Board, that the decision of the Board shall be the decision of the judge, who will have the benefit of the assistance of two highly qualified persons, one appointed by the Minister and another from the Local Appointments Commissioners Panel.
It may be said that a judge is not a particularly qualified person to hear and determine appeals under the Planning Acts. The same can be said of a Minister but in any event this is entirely an erroneous view because judges have been lawyers of considerable practice and extensive experience in human affairs, in matters affecting the business community, in matters affecting property rights, during their careers before being appointed judges. A judge as chairman of the Board will bring to the Board all that wealth of experience together with that particular impartial approach as between planning authority and citizen and as between citizen and citizen and he will make decisions in the light of the requirements of the Oireachtas as laid down in the Planning Act of 1963 and the development plan made by the planning authority.
In order to ensure that the decisions of the Appeals Board are the best possible, the two additional members of the Board as assessors are proposed in the Bill. The panel to be nominated by the Minister will provide the highly expert knowledge and approach which the Minister's higher officers at the present time give to the Minister in the reports that they submit on individual planning appeals. In addition the member from the Minister's panel will provide a necessary degree of co-ordination from the Department's and planning authority's point of view and provide the liaison between the Department and the planning authority on the one hand and the planning board on the other so that those concerned with planning on what I might call the "official" side, will have constant liaison with the Board and vice versa.
On the other hand, in order to ensure impartiality and that the "official" view will not predominate on the Board, it is proposed that the third member of the Board will be drawn from a panel to be appointed by the Local Appointments Commissioners. Such a person will have the same qualifications as a member on the Minister's panel and will be a technical expert like the Minister's member, but will be able to take an independent line representing what I might call the non-"official" public interest point of view. We, of Fine Gael believe that such a Board will be a highly competent Board, and that from the very inception of its work, will inspire the members of the public coming before it with every confidence in its competence and impartiality.
In order further to strengthen the confidence of the public in the impartiality of the Board, a provision is being made in sub-section (8) of Section 4 of the Bill, that an ordinary member of the Board shall not, while holding his office as a member of the Board, be capable of holding any other office or position of emolument or be a Member of either House of the Oireachtas, or be interested in any company or partnership concerned in dealing with, or developing, land. The purpose of this provision is to make sure that no decision of the Board will fall under any suspicion that any member of the Board was or could in any way be motivated by personal interest or private gain.
The last element in the constitution of the Board for the purpose of ensuring its impartiality and inspiring public confidence in its deliberations is that the Board will keep a record of its decisions and provide a copy of every decision for the public and power has been given in the Bill to the Minister after consultation with the Board to make regulations in relation to the keeping of records of decisions and the publication of the principles applied by the Board in reaching decisions. The purpose of these provisions is to ensure that the public will know well in advance of making any planning application or taking an appeal from a planning authority's decision, the principles upon which the Board operates. These would emerge over a period of time from the decisions which the Board will give. Furthermore, as the Board would have to publish its decisions and as these will be readily accessible to the public the decisions will not only have to be fair but to appear so to the public.
In proposing to the House that the Board be established along the lines envisaged in the Bill, it is not to be understood that every appeal, however relatively unimportant it may be, will be the subject of a full-scale inquiry before the Board. This is not at all envisaged. Many appeals will be dealt with without oral hearing as at present but in every case, the Board will formally and actually make the decision itself. The Board will not rubber stamp the recommendations of any of its officials but will bring its own mind to bear upon the particular appeal and deal with it on paper. For this reason, the Board is being integrated into the Act as far as practicable and only a minimum of amendments are being made to the provisions of the 1963 Act dealing with appeals.
It may be argued that the system proposed by this Bill for dealing with appeals will add to the cost of appeals. I want to say here and now there is no such intention behind this Bill. It is of cardinal importance that it be clearly understood by the House that appeals should be continued to be dealt with, even by way of oral hearing, by the Board on an informal basis; the judge will not sit with a wig and gown as he does in Court nor will there be any of the formality associated with the proceedings that is required in Court hearings. Access to the Board should be available to any member of the public, to an engineer or architect or building contractor on his behalf. Right of audience should not and will not be restricted to members of the legal profession. Procedure before the Board must be as simple as possible and in this the Minister will by virtue of the power which he has under the Bill to make regulations after consultation with the Board to ensure that appeals to the Board will continue to have the advantage of being inexpensive and informal with the added advantage of being expert, expeditious and manifestly impartial. The time has been reached to take politics out of planning appeals and planning appeals out of politics.
I say that because town planning has come to affect the everyday life of the man in the street. It can make or mar him financially. It can add enormously to the value of his property or it can reduce it drastically. It is not reasonable or fair that decisions with such effect should be made by the political head of a Department behind closed doors without the necessity for giving his reasons for so doing.
Another amendment which is being made in the law is contained in section 7 of the Bill. This will enable a person to object to planning permission being given to appear as a party at an appeal in the kind of case where the planning authority has refused planning permission and the developer has appealed the refusal. At present if A applies for planning permission and B opposes if the planning authority refuses permission, A appeals to the Minister and there is an oral hearing, B who is vitally affected by this decision has no right to appear at the oral hearing and tender evidence and cross-examine witness. Section 7 proposes to amend that. In such a case an adjacent owner of property, who may have a vital interest in the outcome of the appeal and in upholding the planning authority's refusal, should be entitled to go to the hearing before the appeals tribunal and be heard. As the law stands he is not so entitled and the object of section 7 is to correct that.
I think there is a widespread demand in the country for a change in the method of appealing under the Planning and Development Act, 1963. It is badly needed. The present system does not command confidence. It is open to abuses and pressure from one quarter or another. I am confident that only by accepting this Bill and the principle of taking appeals away from the Minister and handing them over to an independent judicial tribunal—who will hear evidence in public if necessary, and more important, give its decision and the reasons for its decisions in public—will the present unsatisfactory state of affairs be rectified. I strongly recommend the Bill to the House.
