asked the Minister for the Environment if he will amend section 14 of the Local Government (Planning and Development) Act, 1976, to remove the powers of An Bord Pleanála to grant permission or approval on appeal to applicants in cases where such approval or permission contravenes materially the development plan or any special amenity area order of the relevant local authority; and if he will make a statement on the matter.
Ceisteanna—Questions. Oral Answers. - Planning Permission.
4.
(Dublin South-East): In dealing with appeals, An Bord Pleanála are required to have regard to the same criteria as those prescribed for the planning authority, including the requirement that regard must be had to the provisions of the development plan or the provisions of any relevant special amenity area order. This does not mean that the provisions of the plan or order have to be adhered to in every case — even where, for example, the circumstances relevant to a case have changed materially since the plan or order was made. The planning authority may themselves grant a permission which materially contravenes their plan in certain circumstances and it would be inappropriate that the board should have a lesser discretion. I do not, therefore, intend to amend section 14 of the 1976 Planning Act in this regard.
Would the Minister not agree that in the case of a local authority who have the advice of professional planners available, and where every five years they establish a development plan, it is simply belittling local representatives to allow the planning board to override a development plan and that great care should be taken to ensure that local representatives are seen to have powers? In this case there is obviously a diminution of those powers.
(Dublin South-East): I appreciate what the Deputy is saying but, irrespective of what personal feelings there might be, we must act in accordance with the law and the law as outlined in my reply stands. I suppose that the sensitivity of local representatives is something that must be taken into consideration, but it must be done within the framework of the existing law. I do not agree that this would be interpreted as a diminution of the authority of local representatives.
Perhaps the Minister would develop further the thinking in that part of his reply where he said that, as a planning authority have power to contravene materially their own development plans, it would be inappropriate for the appeal lobby not to have similar power? On reflection, would the Minister agree that that statement is not well founded, that it is one matter for a planning authority to modify a development plan but that the functions of the board should not necessarily be similar but should deal with appeals within the context in which the appeal is put forward?
(Dublin South-East): I appreciate what the Deputy is saying and in the interest of clarification I am prepared, if the House so wishes, to have an in-depth hearing on the matter. The basic criteria for dealing with planning applications are set out in section 26 of the 1963 Act. These criteria, which apply equally to the planning authority involved and the board, involve consideration of the proper planning and development of an area having regard to the development plan and to any relevant special amenity order made. A planning authority, as I have said, may grant permission which contravenes materially their own plan provided they follow the procedures set out in section 26, subsection (3), of the 1963 Act, as amended. This requires an authority to publish notice of their proposals, to consider any objections or representations received within 21 days after the notice is first published and to pass a special resolution requiring that a decision to grant permission be made.
Similarly, section 14 (8) of the 1976 Act makes it clear that while the board must have regard to development land and any relevant special amenity area order it may decide to grant permission or approval even if the proposed development contravenes materially the development plan or any such order.
Following its normal procedure the board will make a decision only after all parties, including the planning authority, have been given an opportunity of making submissions in writing or orally. Section 14 (8) was included in the 1976 Act to put it beyond doubt that the board would have full discretion in dealing with appeals and would not be constrained to an unreasonable extent by the provisions of development plans or special amenity area orders. In dealing with appeals the Minister operated in this way and granted permission even where a material contravention was involved. It is difficult to accept that legislation should be enacted under which the powers of the appellant tribunal would be very significantly less than those of the authorities from whose decisions appeals were being made. I can elaborate further if the House wishes but I believe the matter is clear. We are acting within the law and I do not see any contradiction at all.
I appreciate that the actions of An Bord Pleanála are within the present law but the Minister was good enough to read out the very stringent conditions that apply to variations from development plans on the part of a planning authority. No similar provisions apply on the same scale or in the same order to An Bord Pleanála. Does it not seem that it would be worth reconsidering the power of An Bord Pleanála to ignore the development plan because the same safeguards do not exist where it does so, while for the planning authority it does? In view of the visibly unhappy consequences of the exercise of this discretion in many cases is there not now a case for reconsidering the law recognising that all that has been done so far is within the law?
(Dublin South-East): The Deputy put his finger on the problem. There is a case for re-examining this. Having had the experience for eight years on a Dublin local authority I am conscious of tensions that have developed which underline exactly what the Deputy has said. I will take a personal interest in pursuing the matter as the Deputy has outlined and give it every possible consideration.
I am grateful to the Minister.
Does the Minister agree that there is an actual inconsistency arising by reason of the fact that the local authority in making their development plan must put it on public display for a couple of months while An Bord Pleanála can materially change that plan without the necessity of putting it on public display, thereby depriving members of the public of an opportunity of seeing that plan on public display and raising objections to it?
(Dublin South-East): I take the Deputy's point. Whatever can be done to improve the situation will be done.
The Minister was kind enough to read out the background to the affair. Do I take it that the law was changed under the Local Government (Planning and Development) Act, 1976 to strengthen the hand of the planning board as opposed to the situation that existed under the 1963 Act? Has this diminished the standing of development plans which local authorities prepare every five years? Will the Minister consider reviewing subsection (8) so that we can revert to the situation that obtained under the 1963 Act?
(Dublin South-East): I can give an assurance that the situation will be examined but I cannot give an assurance that a law will be changed. I would be giving inaccurate information to say that that will happen but the matter will be examined.
Will the Minister agree to make a statement to the House when the examination is completed, whatever the outcome will be?
(Dublin South-East): I will look into that.
I should like to draw the Minister's attention to the fact that the Minister for the Environment, Deputy Burke, on the Order of Business this morning gave a commitment to bring in legislation to legalise the extension of the extended years' remission in relation to the withering of planning permission. Therefore, the House will have to deal with an amendment to the 1976 Act within the next couple of weeks. I should like to draw the Minister's attention to a recent court decision, referred to in planning circles as the "Pine Valley decision" which impinges directly on the question of a higher authority contravening materially a development plan. I should like to bring to the attention of the Minister the information conveyed to the House yesterday in relation to the enormous number of appeals going to An Bord Pleanála largely by people who attempt to get the development plan changed effectively by the back door because they know that when they apply for planning permission to the relevant local authority they will not get permission because it is outside the frames and the development control standards of that authority. Does the Minister agree that the crucial point here is, contravene materially and not alter slightly? Will the Minister give the House an assurance that he will issue to An Bord Pleanála, as he is empowered to do, a guidance circular requesting the board to respect the spirit of development plans, which is the democratic point raised by Deputy Collins, or, alternatively, alter the legislation in the next two or three weeks?
(Dublin South-East): The first part of the Deputy's question which relates to a statement by the Minister is a separate matter. The second part relates to the Pine Valley case. The right of a Minister for Local Government who dealt with appeals prior to 15 March 1977 to grant permission in material contravention of a plan was questioned in that case. In February 1982 the Supreme Court held that the Minister did not have such power. It should be emphasised, however, that the Minister had no notice of that case and was not a party to it and was not given an opportunity of arguing the point at issue. It is not accepted that the Pine Valley judgment made by a court of three judges rather than the full court is the end of the matter and because of the serious implications of the judgment the earliest opportunity will be availed of to have the matter reviewed in the Supreme Court. In relation to the final part of the question by the Deputy I can give him an assurance that the matter will be examined further. I can assure the House that I will bring this matter to the attention of the Minister.
Does the Minister accept that his repeated analogy between the local authority and An Bord Pleanála is a little unjust because the former, the local authority, are publicly accountable while the latter are not in the same way? In fact, both bodies operate by different sets of criteria. Does the Minister accept that his repeated statements that the existing situation, even though there is implicit dissatisfaction expressed by the Minister with some aspects of it, is in conformity with law is a bad rationale for not improving the law, if that needs to be done? Does the Minister accept that there is growing dissatisfaction with the unusual nature of some of the decisions made by An Bord Pleanála? In that regard the Minister should be looking again at the manner in which the board have been operating and, perhaps, re-evaluate it in the light of the number of years experience now at the disposal of the Minister?
(Dublin South-East): There is no disagreement. The three points were raised earlier. I do not think that my analogy in regard to the position existing between local authorities and An Bord Pleanála is unjust. On the question of conformity with the law, that is the way the matter must be. I am, like other Members, aware of the growing dissatisfaction.
Did I understand the Minister to say that the Pine Valley case was a decision by the Supreme Court with which the Government were not satisfied and would seek to overturn by a legal process in the Supreme Court? What procedure is there for demanding that the Supreme Court should overturn themselves? Is it appropriate for any Government to seek to interfere with the constitutional process in that way?
(Dublin South-East): The Pine Valley case is a separate question. I am prepared to read out what I said before in relation to that case for fear that there was any misinterpretation of what I said. The right of the Minister for Local Government who dealt with appeals prior to 15 March 1977 to grant a permission in material contravention of a plan was questioned in the Pine Valley case. In February 1982 the Supreme Court held that the Minister had no such power.
It should be emphasised, however, that the Minister had no notice in that case, was not a party to it and was not given an opportunity of arguing the point at issue. It is not accepted that the Pine Valley judgment made by the court of three rather than the full court is the end of the matter. Because of the serious implications of the judgment the earliest opportunity will be availed of to have the matter reviewed.
That is what I thought the Minister of State said, but it is a most extraordinary statement to make in the House. The Supreme Court decided a constitutional issue and I understood that it was the end of the matter. It would seem impertinent of any Government to seek to modify that not by constitutional amendment but by going to the Supreme Court and demanding that they reverse it themselves because the Government do not like the decision. I am not a practising lawyer but I have never heard of such procedure before. It is astonishing that the Minister should propose this course of action to the House.
(Dublin South-East): I do not share the Deputy's view. What I said, and I will say it for the third time, was that the earliest opportunity will be availed of to have the matter reviewed by the Supreme Court, lest the Deputy would imply that there would be any question of endeavouring to change the views of the Supreme Court. That would be a total misinterpretation of what I said.
If the Minister objects to the decision which the Supreme Court have made because there were only three judges and not five and he is going to ask them to review it, what does that mean except to ask them to reverse it? If that means anything, that is what the Minister of State has put to the House.
(Dublin South-East): I do not agree that what I have said is in any way endeavouring to coerce a decision from the Supreme Court. The Deputy knows very well, as does everyone else, what the term “review” means. It means “reappraise” perhaps, not “change”. It means to reappraise, to reconsider. It is not axiomatic that it means change. The Deputy's interpretation is not mine.
Is it proposed to go to the Supreme Court and ask them to review something but not to change it? Why should we waste the State's money doing that? Either the Minister of State proposes to change it or he does not. If he is not proposing to change it let him stay away from there. If he is proposing to change it I think he is acting impertinently towards the Supreme Court.
(Dublin South-East): The Deputy is wrong in his interpretation. With respect, I do not feel that it is correct.
We have set a record in this House. We have done three questions in three-quarters of an hour.
I am astonished at the reply. Is the Minister of State saying that his intention is to have his Department seek an opportunity to have the Supreme Court review a decision they have given already? Is that what the Minister of State has said? If that is the case, is he satisfied that that is the proper procedure to be adopted by his Department, that the executive should seek to go back to the Supreme Court and ask that court to review a decision which the court have already given? Is the Minister seriously saying that that is what he proposes to have his Department do?
This is restraining civil servants.
(Dublin South-East): I do not see any necessity to consider restraining civil servants.
(Interruptions.)
(Dublin South-East): It is very difficult when one question comes across and midway through the answer someone else asks a question and then a third one is asked. I have given my interpretation quite clearly. If the Deputy is not satisfied with that, that is his own prerogative. If he has any dissatisfaction with the reply I have given in relation to the Pine Valley case, then the best advice I can give to Deputy Molony would be to particularise a question relating to the Pine Valley case.
A supplementary question asked by Deputy FitzGerald indicated that there was some question about what the word "review" meant. I am asking the Minister of State to clarify what he has said. I think I understood him to say quite clearly that it is the intention of his Department to look for and find the earliest opportunity to ask the Supreme Court to review the decision it has already given. I think that is exactly what the Minister said. I am so astonished by this that I am asking the Minister to confirm that that is what he said. There is no separate question.
(Dublin South East): I appreciate the fact that the Deputy is astonished. He will find the accurate record of what I said in the Official Report. I will say for the fourth time that whether it is anyone's intention deliberately or otherwise to misinterpret that or have a personal interpretation on it——
It is not.
(Dublin South-East): May I finish? I did not interrupt the Deputy. It is his prerogative to interpret the words spoken in this House, but I am absolutely satisfied with the information I have given to the House in relation to the question I have been asked to answer.
The Minister of State has said clearly that his Department propose to ask the Supreme Court to review their decision. He says that is a clear statement. It is clear to me that it means to ask them to look at that decision again and to change it. That seems to me an impertinence to the court.
(Dublin South-East): The Deputy interprets the “change” factor. I do not know why. It is wearisome.
What does the Minister of State mean by "review"?
(Dublin South-East): I am sorry but it is the Deputy's personal interpretation.
Deputy Shatter is asking to be heard and I seem to be discriminating against him.
I would like to clarify the position. Is the Minister suggesting that the Supreme Court will be asked to review the actual decision delivered in the Pine Valley case? Is the Minister saying that in the event of a similar case arising, his Department will seek representation in the court and make submissions in the Supreme Court that they should take a different view in a different case with the same problem? Can the Minister of State clarify that aspect of it? If the Minister of State is suggesting that the Pine Valley decision is now to be reopened in the Supreme Court he will find himself in extreme difficulties in that regard.
I think that is what he meant.
Ceist a cúig.
Could we have an answer to that?
Would the Minister care to answer it?
(Dublin South-East): I feel I have answered it on a few occasions here.
Is it proposed to appeal the Pine Valley case on another case and to get the Supreme Court to overrule themselves?
(Dublin South-East): If a question is tabled by Deputy Shatter in this case I am quite sure that he will get the information he desires.
I think he was trying to be helpful.
(Dublin South-East): I appreciate that very much and also the help given to me by other Deputies.
I will pursue it further.