asked the Minister for the Environment if progress has been made on the drafting of new planning legislation to prevent a repetition of tragedies like that of Coolattin Woods, County Wicklow; and if he will make a statement on the matter.
57.
Ceisteanna—Questions. Oral Answers. - Planning Legislation.
16.
asked the Minister for the Environment if the review of the planning legislation, which he indicated on 28 April, 1987 was under way, arising from claims for compensation by developers, has yet been completed; if so, the findings and if any amending legislation will now be introduced; if not, when the review is likely to be concluded; and if he will make a statement on the matter.
I propose to take Questions Nos. 16 and 57 together.
A comprehensive review of the planning compensation code is under way at present in my Department with a view to seeing what amendments are desirable and possible but it is not yet completed. As I indicated in my reply to Deputy McCartan of Tuesday, 28 April 1987, this whole area of compensation is a very complex one with major constitutional issues involved. Clearly all of the issues involved will have to be teased out before any amendments to the law can be brought forward. At this stage, I cannot be specific on the timescale needed to conclude the review but proposals for new legislation are unlikely to be introduced in the current Dáil term.
Arising from the Minister's reply, is he aware that he told this House on the occasion of the introduction of a Private Members' Bill by the Labour Party, and I quote him, "that proper constitutional legislation will be introduced shortly" and if he is further aware that since the time of the introduction of that Bill a number of statements on this issue of compensation that could be regarded as clear hints have been made by members of the Judiciary? How can he square up the answer he has given this afternoon with the very clear commitment he made in his reply to the Labour Party Bill?
The commitment is still clear and unequivocal. I would still like to do this in the immediate future if I could but because of the complexities in the constitutional area we must be very careful. In regard to things one would like to do and send forward for an opinion, one often finds subsequently that that is not recommended for constitutional reasons. Rather than introduce legislation that is going to be struck down subsequently, I prefer to get it right even if that takes some extra time. I think the Deputy should appreciate that more than anybody else.
Indeed, I am anxious to operate constitutionally. Following the discussion we had on the occasion of the Coolattin Woods matter when it was before the Dáil, it was pointed out to the Minister that we felt the Bill before him was within the Constitution. If he feels there is a constitutional impediment, can he now say that he is seeking clearance from Government to bring in a referendum that would remove such a constitutional impediment? Finally would the Minister like to comment on the statements made by members of the Judiciary that the interpretation of the common good in modern terms does not need a constitutional referendum?
Any matter that would be the subject of a constitutional referendum would have to be decided some place other than this. It is not intended at this time to have a constitutional referendum along the lines suggested by the Deputy but it would be of interest to the Deputy to know that a special interdepartmental working group has been established to consider and make recommendations in the area of trees and woodlands about possible legislation that would help in the better preservation and protection of our woodlands. As the Deputy knows, to date the company involved in the felling of timber at Coolattin have not applied to the Department of Energy for the felling licence necessary to fell the trees at Tomnafinnogue Wood. That is not to say that they might not do it in the immediate future, but at the same time I have to say that the working group dealing with this are very conscious of the urgency. But they are also conscious of the need to get it right and I hope the Deputy will support that point of view.
With specific reference to the constitutional complexities relating to the drafting of legislation, would the Minister not agree that any advice he is likely to get in this area from the legal adviser of his Department, or indeed from the Attorney General, will be that legislation that would interfere with the traditional interpretation of compensation is likely to be unconstitutional and that that collective view is in marked contrast to the public statements of respected and eminent members of the Supreme Court? Would the Minister therefore not consider, as a predecessor of his saw fit to do, introducing a Bill in this House where the balance of doubt may be open to interpretation, and signal in the convention that is appropriate to this House that the President, on receipt of the Bill, if passed by this House and the other House, would refer the matter to the Supreme Court for a definitive interpretation? The precedent to which I refer is the private rented dwellings legislation.
It is a fair comment and I can see what the Deputy is getting at. I do not share his view on the type of advice received from my own law agent department or from the Attorney General. They have been reasonably liberal in their attitude on many occasions. But they are particularly anxious to move slowly in this area. It is one thing to talk about what would seem to the individual as fair and reasonable; it also has to be equitable. It is not just a matter of the individuals who are concerned but also there are the rights of property and the rights and interests of the community at large. In an area that has that kind of complexity and longstanding law attached to it we would be foolish to rush in legislation and suggest that if it is found by some other authority to be unconstitutional it could be referred onwards. Let us try to get it right.
The Minister will never get the right advice.
I am not so sure about that. I think the advice given by the legal department in the Department of the Environment has stood up to the test over the years. It is a busy office dealing with a whole range of things as the Deputy knows very well himself.
That is not actually my point.
What the Deputy is saying is that the advice received on the area of compensation might not be the thing. Anything that is advised upon in the Department in that area is moved over to the Attorney General's office as well and there is a pretty fair bit of expertise in the law there. Some of the pieces we have been talking about here in the past are over there and advice has been received and the advice necessitated a rethink on certain aspects of it. I would rather be involved in that rethink in the Department and in consultation with the Attorney General's office than pass something here that was subsequently struck down and might lead to a lot of litigation in the courts. Finally, I recognise the anxiety of people in this regard. I share that anxiety and I think we should try to do something about it as soon as possible. This is a priority as far as I am concerned.
I want to advise the House that I want to make progress on some other questions. I have heard Deputy Quinn; I am now calling Deputy De Rossa.
It is useful to hear the Minister saying he shares our concern on this issue. Question No. 57, which is being taken with this question, has wider implications than just the question of the protection of woodlands. It concerns the whole question of developers seeking permission and then being able to claim compensation from the authorities involved. Would the Minister indicate that his review of the situation includes that area of concern? While he has said he does not expect legislation in this session, could he give a guarantee that it will be early in the next session at the latest?
It cannot be achieved in the time scale of this session. I should like to think we might get one of the pieces before the House for next term and I do not see why not. In regard to the advice tendered by Deputy Quinn to let the House have a say in the matter and get an opinion on it, perhaps that is something worth considering. I shall take that into account.
Perhaps, for the assistance of the Minister, might I make a suggestion?
I appreciate it is an important question but all questions are important so far as the Chair is concerned. Perhaps I can allow a brief supplementary. I want to proceed to the other questions.
I appreciate that, but would the Minister not agree that there is an impasse with regard to this House? If, on the one hand, Opposition parties bring forward legislation in this area which the Minister is advised in the view of the legal department is unconstitutional, that effectively blocks it from one side. On the other hand, if his own or any Department are proscribed in an earlier Article of the Constitution from knowingly promoting legislation which they consider might perhaps be unconstitutional until such time as the other place, the Supreme Court, is brought into play, this ongoing saga will continue indefinitely.
I can see that point. Let me be as forthcoming as I can on this. There has been quite a number of court cases and judgments on compensation and so forth and many commitments have been given as well. I should like to think we might introduce legislation in this area and even if it is not possible to get a clear indication of constitutionality I shall not be swayed by that. However, I have to take the advice that is tendered; that is the least I should do so that when I come to make a contribution on the matter I shall be able to say that the good advice has been such and such. It may not stand up, but they are a concerned Department and they like to feel that they give the best advice to the Minister. This matter of compensation is not a political matter in the strict sense of the word; it is a question of justice and equity for all sections of the community. The legislation will not be controversial in that sense. It will be a question of its legality or constitutionality. I should like to think that we could ease the constitutionality matter before bringing it forward, but I take notice of what the Deputies have in mind.
Is the Minister saying that in the light of the difficulties which he has been outlining he might be prepared to bring a Bill into the House, even if his advice is not certain as to its constitutionality?
No, I would not like the Deputy to take that. I would have to take the advice on board.
The Minister is obliged by the Constitution not to do that.
I would have to take the advice of the legal department and the Attorney General. It would be improper of me to attempt otherwise. That would lead to its being shot down in flames at a later date. I am not interested in that happening. It would not serve the House, either.