Dáil Éireann díospóireacht -
Tuesday, 10 May 1988

Vol. 380 No. 4

Private Members' Business. - Local Government (Planning and Development) Bill, 1988: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. McDowell:

On the last occasion I was querying the Minister as to whether or not he intended to introduce in good time the comprehensive measure which he spoke of in his contribution earlier in this debate. It struck me that he had gone to some considerable lengths to assure the Progressive Democrats that he had the heads of a Bill already drafted, that he intended to do business on this Bill and that he would view the matter with some urgency. What was equally apparent to me was that when The Labour Party moved a Bill in relation to local government and in particular in relation to the preservation of woodlands, they were told that the Government intended to bring in a comprehensive measure in relation to local government planning and development and they were asked to withdraw their Bill because the Government had this intention to bring in a reforming statute. That was a year ago and nothing has been done about it.

We are now told that the heads of a Bill are available. That, as I understand it, means that each section of the Bill has been thought out and it is at least known in short form what the new Bill is to contain. We asked that, if that were the case, we would be shown the heads of the Bill. To use the graphic metaphor of Deputy Keating, he said he would not believe, until he put his fingers into the wounds, that these heads of Bills existed. We still have not been given any sight of the heads of the Bill that the Government have in contemplation and this strikes me as odd in the circumstances.

Deputy Birmingham told the House that there is a precedent for the Government to show the Opposition the heads of a Bill in order to convince them that they are really serious and that they have put their minds to work on the issues involved in the Bill. We are now told that we may not see the heads of the Bill. No effort has been made to show us what the Government have in mind or even the rough outline of the legislation they have in contemplation. This leads me to suspect that there is still a great deal of uncertainty in the minds of the Government as to precisely what they want to achieve. If there is this degree of uncertainty, one thing is absolutely certain — we are not going to see this Bill put in place before 1991 at the earliest. I will lay a bet with the junior Minister who is here that he will not have enacted a local government, planning and development, amending statute within two years of this date.

I do not believe it will have gone through all the stages in the Dáil and Seanad and have passed under the President's seal within two years of today. All the signs are that the Minister has not yet made up his mind as to precisely how he wants to deal with the compensation issue. This is a complex issue. We in the Progressive Democrats never claimed that our formulation of how to deal with the matter and how to curtail section 56 of the 1963 Act was the only one that could be chosen. We say it is a workable way of achieving the results which we set out to achieves. We make no apologies for having put in place what are, by any standards, fairly harsh and severe restrictions on the right to compensation.

One of the effects of not accepting this Bill will be that the Government will bring in their own Bill. Because of the rules of practice in this House there will not be a select committee to consider the Government's Bill. The House will probably sit for weeks on end, because this is a complex and controversial measure, with three or four Deputies in this House debating the third Stage of that Bill when it comes about, a year from now or whatever. One of the problems with that is that the rest of the House will be delayed while that is going on. Private Members' Bill have the great advantage that they offer the House an opportunity to get on with something else and the Committee Stage of the Private Members' Bill is dealt with by a select committee while not delaying the rest of this House from doing other more urgent business. The Fine Gael Bill in relation to marriage breakdown which is now before a committee — even taking into account that there is an element of filibustering on behalf of the Minister's colleagues — is not delaying what is going on in this House. What is going on in Setanta House does not stop the Dáil from functioning.

One of the problems about Private Members' legislation is that if the Government always say: "Please withdraw your Bill on Second Stage; we will bring in our own," first, it requires a Second Stage debate to take place all over again covering roughly the same territory. This happened with the Intoxicating Liquor Bill which Fine Gael brought in recently. Secondly, it involves discussion by a full committee of this House which means further delays in legislation. I am appealing to the Minister of State, if he really does have proposals to amend the law in relation to planning, to let the Progressive Democrats' Bill go to its Third Stage and put down his proposals by way of amendment.

I heard what was said on the last occasion. It was to the effect that it is not normally the practice for the Government to come up with proposals by way of an amendment to a Private Members' Bill but I cannot see why it should not be the practice. It would save a lot of time and bother and would make for a more mature process of debate in this House if the Government addressed Private Members' Bills tendered by the Opposition in a serious frame of mind and put down their own proposals by way of amendment instead of insisting on bringing in their own legislation, lock, stock and barrel, de novo, as if nothing had happened before.

I want to comment on what Deputy Quinn said on the last occasion. He said that one of the deficiencies he saw in our Bill was the absence of any new scheme for quantifying compensation. He was talking in terms of changing the law so that, instead of market value, there would be what he called existing use value as the basis of compensation. He had a graphic illustration of a coalyard on the quays for which the owners were compensated as though it were a site for building on. There is a mistake in the Labour Party's thinking on that issue. Existing use value has nothing to do with the real value of any asset. Many assets are under-used at any given time for a variety of reasons, one of which is that people are preparing to use them for another, more productive use. To take them from people at less than their market value is to expropriate the owners to some extent. There is no point in beating about the bush and saying that because you are not using your assets to their maximum possible extent at any given time they do not have a potential value for other use. There is no point in pretending that market value is not a proper yardstick for compensation.

I am interested to note that the Labour Party do not seem to take on board what effect our proposals to change the planning laws would have on the measure of compensation. One of the reasons for which you could be refused compensation would be, for instance, that the development you had in mind would contravene the development plan for the area. That would give to local authorities the power in many respects to control the level of compensation because, if the development plan specified that land should be used for housing only, the present open market value system of compensation would be dramatically reduced.

I also noted the Minister's speech where he suggested that our proposal to alter the meaning of the term "use" as it is employed in section 56 would have a more far-reaching effect than perhaps we thought it might have when we drafted that measure. I can assure him it would not. Our proposal was to confine compensation to cases where there was no change of use. Change of use is a term used in the 1953 statute which means a number of things. It does not mean just any change but a change of use for which planning permission would be required. It means a substantial change of use, not simply any alteration or just any change.

I want to turn now to the reasoning used by the Minister in relation to our proposal to extend section 27 jurisdiction to the Circuit Court. The Minister said the present arrangements in the High Court worked well and seemed to suggest that we should be reticent about extending section 27 to the Circuit Court. I know from my practice as a barrister of cases where the fact that High Court proceedings were in issue has deterred many people, who had good section 27 applications, from going to court because residents' associations, small people, confronted with big speculators feel afraid of the potential costs if, for some unforeseen reason, the High Court should decide not to give an injunction, which is a discretionary relief, to them.

I believe the extension of the section 27 power to the Circuit Court would have a very beneficial effect in making it into an available remedy. It would allow small people to use section 27 with a realistic risk as to costs, and not a risk of costs which would totally discourage any but the richest or most confident ligitants from going to court. Above all, it would have a geographical effect, because it would mean Kerry County Council could apply to a Kerry circuit judge for an order to stop a breach of the planning law in Kerry, and that all the people involved would be able to go to a local court and have the matter decided by a local judge in circumstances where costs would be minimised. It seems to me that the Minister's reasoning was conservative, "knee-jerk" and unconvincing on that issue. Justice demands that the Circuit Court should be given jurisdiction.

I will conclude by mentioning a few important aspects of the Bill. The provisions of the Bill relating to sewerage and the 1978 Public Health (Ireland) Act in relation to the statutory duty of sanitary authorities to provide sewerage services in their area, have more far-reaching effects than seem to be understood by some Deputies. We are not simply taking about charging people to connect drains into sewers. We are trying to ensure that compensation is not paid on the basis of a mythical and wholly unrealistic presumption and statutory duty that the sanitary authority are to provide a sewer for any development that can be built.

We are reserving the position. We are providing that the duty to provide sewerage only applies where planning permission is not in question. It follows from that that nobody would be able to receive compensation for a development for which there was not, and never would be, sewerage provided by the local authority because it contravened the development plan and the local authority did not want to have the development in the place in question. That is a very important point.

Criticism has been made of planning receivers as an idea. I accept that in many respects where companies are the developers and they have gone into liquidation, the receiver will have very few assets to chase after, but that measure was intended to be another weapon for the local authorities to get on with the business of completing unfinished estates and remedying what are undoubtedly social wrongs. It does not mean other remedies have to be thrown aside. It is an extra power. It cannot hurt anyone to put in place an extra power which would in certain circumstances have some advantages.

Look at Mountjoy Square in Dublin where there is a huge shell of a building which has been there for God knows how long. Part of it fell because it was left unfinished for so long. It should be open to a local authority, in the interests of the people who live, work and trade in that area, to say that that eyesore must be completed. It should be open to the local authority to send in somebody to do whatever work is necessary, to take possession of the building and sell it and to make sure it ceases to be the ugly concrete skeleton it is now.

I have probably overshot my limit but, as I indicated earlier, with the permission of the House, I wish to share my time with Deputy Quill.

An Ceann Comhairle:

I recollect the agreement. I am calling Deputy Máirín Quill. The Deputy is due to conclude at 7.29 p.m.

Miss Quill:

The Planning and Develoqknt Act, 1963, is now in its 25th year. In fairness it must be said that that Act has served us well but in some respects it has failed. We, in the Progressive Democrats, have isolated what we believe to be two of its most fundamental flaws. The first is the issue of compensation which in many ways is the running sore of local government and, second, the issue of unfinished estates and unfinished developments and the problems that derive therefrom. We have sought in this legislation to set about remedying those two issues.

The issue we have put up front because we think it is the most important, is compensation. Most people will say it is high time our legislators addressed themselves to that very serious issue. In his speech on this debate last Wednesday, the Minister told us that between 1982 and 1986 the amount claimed by way of compensation for refusal of planning permission was £70 million. At the best of times that is a lot of money but at local authority level we are living in the worst of times where money is exceedingly scarce. Any city manager or local councillor will say if his authority could lay their hands on even a fraction of £70 million, they could fill many potholes and that a great deal of good, essential and outstanding work could be done if money of that magnitude were available.

In a nutshell what we are saying is this. We can ill afford to allow a situation to develop where under law people can make claims of that magnitude on local authorities. That must stop, and it must stop now. Over the years successive Governments have attempted to address themselves to this problem. Many times in the past it seemed as if new legislation was about to be brought in. This usually happened when the issue was live and was highlighted, especially when cases came before the Supreme Court and the verdict was brought against the local authority. Then the legislators would shake their heads and say it was time to bring in amending legislation to curb the issue of compensation and to restrict its use. That has been said time and time again, but nothing has been done.

That is why we, the Progressive Democrats, in our first year in this House brought this legislation before the House. We say to the House and the country that we cannot afford to delay any longer. Now is the time to bring in amending legislation. That is the first issue to which we have seen fit to address ourselves. We have sought to restrict the number of cases and the number of grounds under which compensation can be claimed. We consider it necessary to do so not alone to protect public and scarce taxpayers' money but also legislation enacted by this House. It is just as grave a source of public scandal that we, as legislators, knowing that this practice is continuing, have failed to introduce legislation to curb it. That is as much a cause of public cynicism as is the practice that has developed of wily speculators seeing this as a way or opportunity of making money. It is time that practice ceases and the overall position put right.

In his excellent contribution to this debate last week Deputy Quinn seemed to have grave reservations about the manner in which we seek to address this problem in our Bill. He has been well and adequately answered by Deputy McDowell who spoke at the outset of the debate this evening. If Deputy Quinn has serious reservations about any weakness he perceives in the provisions of our Bill, it is open to him to table an amendment. We would welcome any constructive, positive amendment he might introduce that would seek to strengthen its provisions, thereby rendering the ensuing Act more effective. I hope he will respond to this invitation. And, if it is found that, as a result of his amendment, we have a stronger, better Bill, we shall be delighted.

The second main issue we have sought to address in this Bill is the question of unfinished estates. Over the years those of us who are members of local authorities, especially in urban areas, will have seen the position in which young house purchasers have found themselves, all too often when they move into an estate where the developer has not carried out essential work, being left for month after month, sometimes over a period of years, waiting for essential works to be carried out. These are mainly works on developing the external aspects of an estate, such as the laying of roads, footpaths or the proper development of green spaces. Very often more fundamental deficiencies are faced by new householders in such estates. Sometimes even public lighting is not made available or, having been made available for a number of months, is then cut off.

There is that sort of grey area of time between the taking-in-charge of an estate by a local authority and the giving-in-charge by the developer in which nobody seems to want to claim responsibility for paying the Bill. This means that young people, who will have staked their life savings on a deposit to purchase a house, who will have mortgaged a minimum of 20 years of their future to meet the payments to retain that house, find that, after all that effort, they are left without essential services such as public lighting, a refuse collection, or some essential element in order to render it possible for them to live there happily. That is another on-going sore in local government circles, one that has to be redressed sooner rather than later.

We have set down very specifically in this Bill the manner in which we feel local authorities ought to proceed to ensure that that kind of practice does not develop. That is the least we should do to protect young people who are prepared to house themselves. In the past the experience of young people who have found themselves in the circumstances I have described, has had an adverse effect on other young people planning to house themselves. Very often they see people whom they know very well moving into public estates that are developed on time and properly laid out, whereas people who buy houses in private estates, having staked their money, must wait months and sometimes years for such works to be carried out. That is not good enough. That is not a fit and proper way for us, as a nation, to protect the rights of home owners and house purchasers. We have set out very clearly in our Bill — in stages I do not have time to develop — how that problem should be addressed, how the possibility of that happening in the future could be averted.

In the few moments remaining to me I might say this: Deputy Birmingham, while generally welcoming the Bill, appeared to have some reservations. If he feels that the general thrust and spirit of the Bill is right but still holds reservations, the offer or invitation I gave Deputy Quinn, equally, is open to him. I hope he will see the need for having this Bill enacted in all due haste, that if he has any such reservations he will voice them by way of amendment, and when the time is ripe, come in behind us and support our Bill.

It is high time the Opposition parties united behind the provisions of this Bill. There is unanimity on the need to have this legislation passed and that it must be done sooner rather than later. Let us now put our feet where our tongues have been. I appeal to Opposition Members to support this Bill on Second Reading, to send it on its way, so that its provisions can be enacted sooner rather than later.

The Minister has appealed to us to place this Bill in abeyance because, he said, he has a broader and different Bill in course of preparation. It was exactly 12 months ago this week I stood here and spoke on the trees and woodlands Bill. At that time the very same plea was made by the Minister of State, Deputy N. Treacy, who sat over there, and said to the proposer of the Bill: We have another Bill in course of preparation, a better, broader Bill. Would you be good enough to put your Bill in abeyance and await the introduction of ours? That is exactly 12 months ago and nothing has happened in the meantime. If that kind of delay were to be brought to bear on the provisions of this Bill we should have only more hardship, more claims for compensation, more public cynicism about legislators who cannot respond in time to a very serious set of circumstances.

I appeal to the Minister to take this Bill on board. I appeal to the Members of the Opposition parties to support this Bill. I appeal to the better instincts within the Fianna Fáil Party also to see the sense of this Bill, the need for its being enacted sooner rather than later. When I say I appeal to the better instincts within the Fianna Fáil Party, I should say that nowadays I suppose there are two Fianna Fáil parties — the cutting party and the other party, the cutting party being led by the Minister for Finance who, on taking office, found this country on the brink of bankruptcy. With all due credit to him, he turned the country in the other direction towards solvency. Indeed, in the course of his term of office as Minister to date, he has demonstrated extreme responsibility. I would appeal to his wing of the Fianna Fáil Party to look at this Bill with the same sense of responsibility.

I do not have the same expectations from the other wing of the Fianna Fáil Party. I refer mainly to the group of Fianna Fáil Deputies running around the country at present, like monster leprechauns, taking lottery cheques out of their pockets, engaging in that kind of irresponsible political behaviour. I do not address my comments to them. Sometimes my fear is that the Minister for the Environment might find himself in that section of his party. That is why I appeal especially this evening to Ministers in Cabinet who have a very responsible attitude to those matters, to take an equally responsible attitude to this Bill and not allow its passage be delayed any further. I appeal especially to the Minister for the Environment — who, in many ways, has not been the most spectacular Minister for the Environment we have had in recent years — to show a sense of responsibility, of urgency, of sensitivity to the needs of the general public, taxpayers in general, to allow this Bill to go through, and give it the kind of backing called for by Deputy McDowell. If he does that it will be to his eternal credit. I appeal for support for this Bill from all sides of the House.

Mr. Flood:

I am delighted to be able to contribute to this debate this evening. As a member of Dublin County Council, in recent years I have come across several instances in which the threat of a claim for compensation against the council seemed to me to compel the manager to take planning decisions with which he felt unhappy, to say the least. It is right, therefore, that we should be discussing this issue. I hope that, arising out of the Bill and the Minister's statement in his opening speech, we will be able to make progress very quickly in our efforts to deal with what is a very contentious issue so far as local authorities are concerned. The threat of compensation is contentious because obviously from a financial point of view local authorities are not very amenable to meeting the claims that are served upon them and certainly they are not in a financial position to meet any of the more spectacular claims that have been sought from them over the past number of years.

The threat of compensation can have an effect on the planning decision process. On a number of occasions we in Dublin County Council have been advised by the manager to support a planning decision that we felt was not in the best interests of the environment or locality to which the application referred. Many of us very reluctantly felt compelled to accept the advice of the manager in relation to some of these decisions only because we were faced with, in the manager's words, "a serious compensation claim" which would have major financial repercussions for the local authority.

It is interesting to study the figures of the actual claims which have come to fruition. The Minister gave us a summary of these claims, of which only nine, totalling £82,000, have actually been paid. It is a very small figure and it might tend to give the wrong impression regarding the threat of compensation claims. Very often local authorities are compelled to reach some kind of an agreement with planning applicants in order to avoid the payment of compensation claims. We are dealing only with the tip of the iceberg here and a much more interesting figure might be one gleaned from the local authorities around the country indicating the number of instances when planning decisions were taken in a certain way because of the potential for a compensation claim. Dublin County Council could put up a number of cases which would give a totally different picture and would show how seriously this issue has developed in relation to the threat of compensation claims.

It is against that background that we should be considering amending legislation and it is for that reason that I am delighted with the Minister's statement that he is well advanced on this issue. As somebody who is serving on Dublin County Council at present and having seen the effects of claims and their potential damage to the environment, I hope the Minister will do everything possible to speed up the completion of the drafting of this legislation which, I understand, has been agreed to in principle by the Government and bring it before the House at the earliest possible date. Obviously it would be very helpful if we could have it during this session because the longer it goes on the more potential it has for damaging our environment significantly. All of us can refer to specific cases in our own county council or local authority areas where claims advanced along a certain path and the very threat of the claim determined the planning application which had consequences which made many of us unhappy but unfortunately with which we had to live.

The legislation proposed here incorporates a number of the changes that are required in the 1963 Act. As the Minister said, some of these would find favour with the work he has already done in drafting his legislation. I do not think any of us can quarrel with that statement made by the Minister. However, there are areas the Minister should bring into his legislation and this is the doubt I have about the Bill before us now. There are certain areas in relation to compensation which I would like to see tightened up. It is time that we took those decisions, particularly with regard to the unfinished estates and the changes required in our planning legislation, to deal with this issue. When I talk about unfinished estates I am not confining myself to housing estates only. I am also referring to industrial estates.

All of us who represent developing areas know that the proper completion of housing estates has been a bone of contention during the past 15 years. Many estates which were begun up to 15 years ago have still not been taken in change by Dublin County Council, in my case, and I am sure it is the same in other local authority areas. The failure of developers to complete estates properly means that ultimately the local authority have to step in and pick up the tab for the completion of the areas concerned. Very often they have to do that under pressure from local communities who in many cases have been abandoned by certain unscrupulous developers. Some, though not all, have been very remiss in completing their estates and the local people who have moved into the housing areas find themselves compelled to put pressure on the local authority to go outside of their role and take on the task — in many cases using public moneys where bond moneys have not proved sufficient — of carrying out these works and completing the estate to the satisfaction of the residents.

A number of years ago I had occasion to seek information from the manager of Dublin County Council in relation to the number of legal cases he had pending against various developers throughout the administrative area of Dublin County Council. It came as a surprise to me to learn that practically every major developer operating in the county at that time was the subject of some type of litigation. It was surprising to see the number of developers, both large and small, who were clearly, according to the planning permissions granted to them, not properly completing their areas.

There is reference in this Bill to the proposed appointment of a planning receiver with certain powers. It is very good in theory and it appears to be an attempt to cope with the failure of developers to complete estates. When you examine that proposition closely you have to ask the question: what actual powers would the receiver have? The powers of the receiver can be based only on the financial backing that is available to him from the developer. In many cases estates are almost fully occupied before the trouble in relation to the completion of estates begins. There is, of course, a case to be made for the staged completion of housing estates where permission would be granted for smaller proportions of proposed developments and as each portion is properly developed and completed a separate permission would issue for the next phase of the housing development.

The appointment of a planning receiver without financial support from a developer, would weaken his hand very considerably because sometimes a property can be mortgaged to a bank or financial institution. Where would the planning receiver stand in that case? Would he have rights over the position of the bank or lending institution? If he had rights, how would that affect the potential for development of housing estates or industrial estates? It would have major implications so far as fund raising to carry out developments would be concerned. I would not necessarily have a great deal of sympathy with developers on that basis because if they are not in a financial position to complete a project properly it should not be started.

There is a weakness in the proposal to appoint a planning receiver because his ability to raise finance from a development is extremely weak and would not allow him to complete the development in some of the areas I am familiar with because of the lack of saleable assets that would be available to the developer operating in that area. Unfortunately, that is one of the weaknesses of this proposal. The same applies to industrial estates. Some estates which were built 15 or 20 years ago are still in quite a shambles because the developer of the industrial estate has not fulfilled the conditions of the planning permission which was granted. Of course, the bond moneys held at that time were so small as to be irrelevant in so far as today's costs are concerned.

The Bill seeks to amend some sections of the 1963 Act, which is really the Principal Act, in relation to compensation and the threat of compensation claims. I want to suggest a number of ideas that come to mind in relation to section 56 of the Local Government Act, 1963. It should be amended so that compensation under section 55 will not be paid in respect of the refusal of permission to develop land if one of the reasons for refusal is that the proposed development would materially contravene a zoning objective of the development plan.

As far as I am concerned the effect of this change in the 1963 Act as regards Dublin County Council would be that a refusal of permission for, say, a large-scale residential development on lands zoned for open space or amenity purposes would not attract compensation. I am speaking from personal experience here. Again it seems always to come back to this in this fairly complex issue, that where amenity lands in part of my constituency became the subject of a planning application and again because of the threat of a claim for compensation, the manager felt obliged to come to an arrangement with the developer in order to protect those amenity lands and to grant planning permission in another part of the same area. It was in conflict with the original action plan development thought out and agreed for the area, but again there was the complication of the threat of a compensation claim and consequently the manager felt obliged to give in on that. This is just an example of what can happen.

In so far as section 56 of the 1963 Act is concerned, there has been a lot of discussion on the meaning of the word "use" as defined in section 2 of the Act and that it should be altered to include the use of the land for the carrying out of any works thereon where the effect of such works would be to change the character or nature of the use being made of the land. Deputy Keating has tried to incorporate this general issue into this Bill, and all of us would go along with that.

Section 56 (1) (b) of the 1963 Act should be amended to provide that compensation would not be payable in respect of the refusal of commission to develop land if the reason or one of the reasons for refusal was that water or sewerage facilities were not available for the proposed development. This is often a very complex and contentious issue when we come to talk about planning applications and the issuing of planning permissions. Again, this is incorporated in Deputy Keating's Bill, and its effect would be to remove the concept of prematurity which is contained in section 56 (1) (b). The amendment would be appropriate in present economic circumstances, as money for development of schemes in the pipeline may not be available for an indefinite period and certainly so far as most of the local authorities are concerned that certainly would be the case.

We have to take into account the financial constraints on local authorities who simply cannot be expected to provide underground services, including water and sewerage facilities, just to protect itself from compensation claims. We would all support change to that effect, particularly where open green lands are frequently becoming the subject of speculative attempts by developers to bring their planning application to the point where, though they have no real hope of actually developing the land, they have a better than even chance of being successful with a compensation claim against the local authority.

I also believe that the Public Health Act of 1878 should be amended to provide that the right of a landowner to connect a house on his land to a public sewer should only arise after the house has been built in accordance with the terms and conditions of a planning permission. The Act should also be amended to provide that a sanitary authority could reserve capacity in any water or sewerage system to provide for development on zoned land for which the scheme was designed and constructed even if planning permission has not been obtained for such development. The effect of this would be to offset the Short case which certainly had major implications financially for Dublin County Council. If the legislation were in place and if it were amended it certainly would ensure that we would not have a repetition of that now infamous case so far as Dublin County Council is concerned.

In so far as section 56 (1) (e) of the 1963 Act is concerned, I would have preferred to see the Bill before us incorporating some reference to the question of national monuments. As far as I understand it, the preservation of a national monument is a compensatable reason. If a person happens to own land on which a national monument is located he can lodge a planning application and if that application is refused on the basis that it would seriously affect the preservation of the national monument, then he would be entitled to seek compensation. The 1963 Act, particularly section 56 (1) (e), should be extended to incorporate this protection, particularly in areas on the fringes of Dublin where we have had occasion to supervise the growth outwards of the city and in so doing came into areas where national monuments existed. On the north side of the city there is a fairly substantial claim at present lodged with Dublin County Council arising out of this specific issue, the claim being for £3.3 million. I hope that under this Bill there will be some attempt to provide for the protection of local authorities against compensation claims arising out of their protection of national monuments. I hope the Minister will ensure that the legislation he proposes to bring before the House will address this issue because it is important.

I also believe that an opportunity could and should have been taken in the Progressive Democrats' Bill to add to section 56 (1) of the 1963 Act to provide that compensation would not be payable in respect of the refusal of permission where the reason or one of the reasons for refusal was that the proposed development would contravene an order under the Acts I have referred to. That should be stitched into the legislation. It is time we took account of our national heritage. Local authorities should not be open to the threat of substantial compensation claims just because we are trying to protect our national monuments.

Section 55 (3) of the 1963 Act should be amended, and I hope the Minister will address himself to the issue of determining the reduction of value for the purposes of this section. Regard will have to be taken of any reduction caused by the refusal of permission on which the claims is based, and it should not be assumed that permission will not be granted for any other development on that area. This is a matter which was highlighted by a specific case which came to light in relation to the High Court case of Owen Abue Limited v. Dublin County Council. The applicant applied for planning permission for three houses on 18 acres of road reservation with the open intention of making it difficult for the planning authority to sustain non-compensatable reasons for refusal which they might have been able to sustain if the proposal had been for development as a normal density in that area and in conformity with the development plan and the zoning objectives.

When the matter came before the arbitrator the applicants held that on the proper interpretation of section 55 (3) they were entitled to claim compensation on the basis of any further development which probably could have been made in accordance with the planning Acts. The courts, on the case stated before them, decided in favour of the applicants. This had the potential to be a serious issue in the area in which it arose. The ground referred to is part of the western parkway motorway construction which got under way a few weeks ago and which is a £30 million project. This particular area of land formed part of that reservation. A developer who should be seeking a normal density of 12 houses to the acre, sought a density of three houses to 18 acres and tried to force the local authority to refuse permission and thereby devalue the property, according to them. Consequently he tried to force Dublin County Council into a compensation claim whereby they could find themselves in a very difficult situation.

Section 58 of the 1963 Act should also be amended to provide that applications to the Minister or to the board may be made within two months after a planning authority had given an undertaking pursuant to section 57. One of the criticisms of the court in the case of the Grange Developments Limited v. Dublin County Council on the lands of Mont Gorry in Swords — which has been referred to by previous speakers — was that the offering of the undertaking two months after the date of the decision precluded the applicant from making an application under section 58. If the change that I now recommend in the 1963 Act were to take place, the criticism would no longer arise in the handling of matters of this kind by Dublin County Council.

I would like also to recommend a change in section 57 of the 1963 Act which is not suggested in this Bill. Section 57 should be amended to make it clear that a planning authority are entitled under the section, when dealing with a claim for compensation, to give an undertaking to grant permission for an alternative form of development which would comply with the zoning objective of the development plan, irrespective of whether the applicant had applied for such alternative forms of development, and also to make it clear that the planning authority could give an undertaking under section 57 of the Act at any time before the closing of an arbitration hearing. The change I am recommending would meet other criticisms of the council's actions — I am talking about Dublin County Council in this case — which were made in the courts in the case of Grange Developments Limited v. Dublin County Council.

Those are just a few of my suggestions on how the 1963 Act could be changed to deal with the issue of compensation as it arises and how we could extend it to take in more changes which are now required in our planning legislation to take account of issues referred to by many of the previous speakers most of whom I have listened to — to strengthen the planning legislation to give communities affected by developments the power, through their local authorities, to have some say in the manner in which their areas are developed and the manner in which their housing estates are completed and the infrastructure is provided as part of those developments. All these matters are bound up inextricably with the various development plans which are determined throughout the country covering each local authority area and region.

The development plan should be reexamined by the Minister to see if there are ways in which it could be steamlined and made more understandable from the point of view of the public. The plan is very complex and very difficult for ordinary individuals to understand. Yet, its adoption can have a major effect on their environment and frequently they find it impossible to come to grips with making their own representations for changes, alterations or substitutions. It is only when local groups or interested parties and organisations take on the task of trying to come to grips with development plans that the real information, contained in the development proposals — whether in draft or adopted — come to light and often individuals are too late in reacting.

In conclusion, I welcome the opportunity to contribute to this debate. I compliment the Progressive Democrats on introducing the Bill in their own time. I ask them, in view of what the Minister has said, to consider withdrawing their Bill and to work with the Government Bill when it is introduced. I ask them to take account of the various comments I made about the suggested changes in the 1963 Act which calls for a much wider range of changes than are contained in this Bill even if we were to confine ourselves to the issue of compensation only.

Mr. McCartan:

I welcome the opportunity to contribute to the debate on this Bill on behalf of The Workers' Party. It is an important issue and one that should be debated in this House with the greatest attention possible. A debate on this issue can help to point up the many deficiencies in our current legislation and the difficulties that will be encountered by this House when attempts are made to legislate for stricter planning laws. A remark made earlier by Deputy Quill was echoed, to some extent, by some other contributors. I would like to make it clear that the planning Acts have not been a success. The 1963 Act, and its subsequent amendments, have proved to be disastrously inadequate and inept for anyone working at local authority level and interested in the proper and ordered development of our urban and rural areas.

It should be drawn to the attention of this House that many farm and agricultural developments in our rural areas are not subject to any planning controls and are not required to comply with any standards whatsoever. That was pointed to during the debates last summer, and in the House after the summer recess, as the cause of many of pollution and of many fish kills that occurred in our rivers. Anyone who looks at urban development in the major city areas — it is significant in all urban and provincial town centres — will be aware that the decay and the dereliction are attributable in part to the inadequacies of our planning laws. When local authorities seek to control land speculation within their areas they are hampered because they are without the power or the resources to enforce the law or to seek compliance with the directives.

It would be wrong to let the statement go that the planning laws have been a success over the past 25 years. I do not believe any Deputy concerned with the proper development of the urban and rural environment could be happy with the extent of our planning laws today. The base problem must rest with our Constitution. This point has not been made by any contributors to the debate so far but it must be commented on in any debate on the whole question of the enactment, amendment or improvement of our planning laws.

Under Article 43 of the Constitution one of the most remarkable provisions in that document of 1937, the position of private property, is laid down in such trenchant terms as to be perhaps the most strongly stated right of all the various rights in the fundamental rights section. Article 43.1 provides:

1º The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

Jurists in interpreting those words have established that the law that derives from a source antecedent to positive law is talking about God-given rights, and it is the only right in the Constitution that has the statement contained in it, that antecedent to positive law our right to private property emanates from the supernatural or from God. No other right in the Constitution is so strongly worded.

There are, however, interesting qualifications to that which are so often forgotten, not so much by our courts but by us as politicians when we try to address our understanding of what the right of property is and what it should consist of. Too often arguments, discussions or deliberations in the area of planning are immediately discounted by reason of the strongly and trenchant words of the Constitution with regard to private property. That view ran right throughout the Kenny report of 1974 which sought to address the question of building speculation and building land and the point was echoed in some of the contributions here over the last number of days in the acknowledgment or concession to Government that they must do nothing that would seem in any way to impinge radically on the right to private property because of the constitutional duty to do nothing by way of legislation that would be seen to impinge directly on the Constitution.

As legislators we have failed to exploit the qualifications in Article 43 that allow us to tackle the whole question of property rights. Those qualifications should be exercised as under Article 43.2.1º in the context of civil society, to be regulated by the principles of social justice in Article 43.2 suggesting that laws can be enacted to delineate the rights reconciling their exercise with the exigencies of the common good.

It is interesting that in some of the more recent Supreme Court decisions members of that Bench have sought to remind us as legislators that those qualifications are there and that we, as legislators should have more regard to them. To the extent that we want as a matter of political double-think not to address seriously the definition of private property as contained in Article 43, we must confront the problem that we will never have adequate planning laws. This element of ambiguity runs throughout the debate and rests to some degree in the Progressive Democrats position with regard to this Bill. In their own draft constitution for a new Republic published earlier this year, the rights with regard to property laid down in that draft are a word perfect image and reflection of what is in the 1937 document. They juggle a number of the terms about but come down to exactly the same definition and they use the same qualifications in it. I quote paragraph 5 at page 5 of their document:

The State shall not enact any law which attempts to abolish the right of private ownership or the general right to transfer, bequeath and inherit property. It shall be lawful for the State to enact laws to delimit and control, with or without compensation, the exercise of property rights in accordance——

again, in accordance with the 1937 terminology——

——with the exigiencies of the common good, in general, and, in particular, to regulate and delimit in accordance with the principles of social justice, the development and protection of industry, agriculture, commerce, land and the environment.

Therefore, an absolute recognition of the right to private property, subject to the two qualifications that exist in the 1937 document borrowed word perfect, is contained in their document. In that context we have to look a little more carefully at the seriousness of the proposed legislation. For reasons I will deal with later I believe there is a good deal of ambiguity and double-think in the approach of the Progressive Democrats to the issue.

I have mentioned that the debate on developing proper planning laws must centre around the Constitution and its provisions. I have mentioned briefly the Kenny report which is considered to be the modern-day initial authority on the whole question of how to deal with law speculation in developing urban areas. Reading that report it is interesting to see how the judge — chairman as he then was — of the committee grappled with this whole problem of the grip that our Constitution has on any enlightened development of laws in the area of property control. They came down with a scheme of designated land, a designation that would be made by the High Court after a hearing, but in the course of that designation incorporated into it the notion of price control on the grounds of social justice and the exigency of the common good.

I have made the point that we, as legislators, are constantly running away either from tackling this very narrow definition of property in Article 43.1.1 and facing up to it by means of a referendum, if necessary or even taking that and the Constitution as it is, addressing and utilising those provisions and exceptions in Article 43 that would allow for somewhat more enlightened and ambitious legislation. The double-think and ambiguity I speak of are reflected in the explanatory memorandum attached to the Bill in the suggestion that it would be unfair to describe it as a speculator's charter, but the 1963 legislation can be nothing other than a speculator's charter. It represents virtually no serious control. In some regards it delineates and in some way limits the directions in which the speculator can move, but when it comes to confronting an application for development the hands of the planners are utterly without power and are tied.

Again, when it wants to confront the decay and dereliction that are visited upon so much of our good housing stock in urban areas, the legislation is completely powerless and without authority. The memorandum itself is remarkable because, having said it would be unfair to describe the measure as "speculator's charter" it states: "but there is no doubt but that the compensation provisions contained therein are unduly generous." What does that mean? It means that the legislation and the Act as it exists represents a very generous gesture to land speculators and is their charter of operation. That kind of ambiguity even comes out in the Minister's use of the figures. He told us that between 1982 and 1986 there were 183,000 applications for planning permission and that only 130 of those involved compensation. He said that, out of the 130 applications, nine involved the payment of £82,000 in compensation. He seemed to play down the importance of the compensation aspect or the use and exploitation of the loopholes in our planning laws by unscrupulous speculators.

The interesting figure that came out later in the debate, unconnected with the point the Minister was making, is that the extent of the claims made by speculators in those 130 cases amounted to £70 million. The position is that the use of this device of making unreal applications for unbelievably inflated demands, in money terms or otherwise, is a lever to twist the arm of local authorities in granting planning permissions that otherwise they would not grant. Consequently, this whole notion of the local authority to develop in the common interest and the common good is completely circumvented on a widescale basis throughout the country by people who simply put the local authority in a position where they cannot say no, cannot lay down regulations and must cave in to their demands.

The sum of £70 million is used to hold local authorities to ransom and to obtain decisions that would not otherwise be available to the developer. In my own constituency in the past year there was the celebrated example of Red Rock. It is an area in the Howth peninsula, one of the most scenic and highly desirable amenity areas on which planning permission for development would never be granted. Because of a history of mistakes, which is not worthy of mention in this House, based on legislation which is completely inadequate, a developer was able to hold the county council to ransom, compelled to apply for planning permission, which they granted him, to build 26 houses, invited appeals and at the hearing we saw the spectacle of a developer hand away his planning permission because there was a condition that, should he lose the appeal of the objectors to An Bord Pleanála, a land bank of equivalent value would be made available to him, along with £250,000, in the county area.

That is the way our planners are forced to deal with speculators. It is an argument that the Minister sought not to make in answer to the Progressive Democrats' legislation and it makes me worry about the serious intent of the Government to face up to the problems centred in and about the whole issue. For that reason, The Workers' Party are not taken by the Minister's plea to the Progressive Democrats to withdraw their legislation in the hope of something better coming. We have serious misgivings about the political willingness of the Fianna Fáil Party in Government to face up to and deal with this problem adequately.

If one looks at the approach of politicians who have spoken in the House on the desirability of this legislation and at a party in Dublin County Council engaging in a very disreputable process of using section 4 applications before the county council to defeat the proper planning and development of the county area, it is clear that all Dublin County Council meetings are taken up with debating and deliberating section 4 motions seeking to compel the manager to concede to planning applications on the basis of individual cases and representations by members of the county council — some of whom are Members of the House — and who do not seem to have any consistent approach to the problem of proper planning.

The first main feature of the Bill relates to the question of compensation and when it should be paid. Whatever about when compensation should be paid, the major problem is the extent of the amount ultimately to be paid. This has not been addressed in the Bill and, from the Minister's response last week, it is clear that there is no serious intention or consideration in the Government's proposed Bill to deal with this problem. The Workers' Party make the point that property must be secondary in its status to community rights and needs. The primacy of property considerations as reflected in the Constitution, respected and given status by the planning legislation, is wrong. Even within Article 43 there is scope for legislation in the planning areas which would put the institution of property in its rightful place, behind the interest of the common good of the community and of people's needs.

The notion that property must yield absolute maximum return in all regards and circumstances cannot be consistent with the common good. The issue has to be raised as to the existence or recognition of the notion of community property. There is never any argument in these debates regarding property owners returning to the community, in the guise of local authorities, compensation for the enhancement of their land by the act of the local authorities, without any contribution, good, bad or indifferent from the property holder. We never hear that, because the local authority provide services to a district or build a road through an area and, consequently, multiply many times over the value of a land owner's property, there should be a contribution from the owner to the community property interests. The existing concept of compensation is outdated and must be brought up to modern standards. There are many precedents for this, for instance in legislation relating to ground rents where the Oireachtas fixed an arbitrary figure whereby the owner of ground rent will be compensated for the surrender or sale of the ground rent to the lessee, based on a figure approximating to seven times the annual rent.

Not only is the compensation fixed by an outside agency and in an artificial way, the ground landlord is compelled by law to relinquish the rights of private property and none of this has been challenged constitutionally because owners of ground rent realise that their case, in the qualifications of Article 43, would not stand up to a test in the courts. It is interesting to note that our legislation in were able to bring forward legislation in that area without the worry that they could not move because of a duty not to introduce legislation that would impinge on the Constitution. Why is it that it cannot be done in the area of planning law?

The example also exists in the area of rent control on lettings. Landlords, where they let their property for accommodation purposes, are controlled by tribunals who decide what is a fair rent and to what extent the owner can expect a return on property. Something similar has arisen in regard to gaming halls with the Supreme Court saying that legislation passed in 1956 allowing for a 2½ wager, and a limit of 50p in return, was a constitutionally proper provision. The argument advanced by the gaming hall owners at the time was that their right to make a profit from their property was being artificially curtailed. The Supreme Court said no, that the legislation was constitutionally sound and it was a matter for legislators on another day, if they wanted to, to interfere with the limits set down.

In many areas of our law legislators have laid the precedent for the control of compensation, for the control of return on property and for control of the right to earn an unlimited and unbridled profit. There is no reason, in the area of compensation in planning laws, we cannot do the same thing. Compensation must be based on the original use purchase. If land is brought as waste land it must be compensated for on the basis of its waste status. If land is bought as agricultural land whatever compensation is paid — one recognises that compensation must come into it at some stage — must be related to the value and price originally paid and the use for which it was originally sold. In addition, there must be a set-off for any community enhancement of the property brought about by the introduction of services, the building of roads or any other work by a local authority or an outside agency that enhanced the value of the property for the person.

There is no way that our law should or must compensate a person who is fortunate to buy in a right location, sits on a parcel of land and waits until events turn to his or her favour. Modern day senses of value and fair play do not require us to legislate any longer or provide for that. There are indications that at least some members of the Supreme Court hold that view. The point has often been made that we cannot let this rest in the hands of our courts, that we must take action to ensure that our legislation is proper, adequate and comprehensive. As legislators we must end the ambiguity that clearly exists, is redolent throughout the debate and in the attitude of the Progressive Democrats in their Bill and in the reaffirmation of private property absolute in their draft constitution.

Another aspect of the Bill is the provision dealing with unfinished estates. That is a new departure in planning law and it is remarkable that it has been taken so long to introduce it. One Member remarked that it was coming at a stage when the horse had gone over the hill leaving us with nothing to stable. However, the provisions are very weak. Other devices could be contrived to deal with this phenomenon. There are other ways of ensuring that a person who forms a limited liability company to build one housing estate is not allowed form another limited liability company to build another estate some where else. There are means whereby a contractor would not be allowed move from one local authority contract to another until the first was properly completed. There is hardly a builder or developer who is not involved in contract work for local authorities on the one hand and developing housing privately on the other.

The idea of a planning receiver in the Bill is a useful one and one that should be explored fully. I should like to ask the Minister to bring that concept before the Government and ask them to consider including it in their Bill. The suggestion has not been fully fleshed out but it could work well if developed more. The legislation before us is weak in many ways and in its basic politics but if it was to become law tomorrow it would be an advance on our existing laws. For that reason The Workers' Party support the Bill. We will vote in favour of it at the end of Second Stage and we invite the Progressive Democrats not to concede to the invitation of the Government to wait until their Bill is introduced. If they do so we will be waiting for a long time to debate this issue again.

Mr. Roche:

Deputy McCartan is correct in saying that the planning laws have not been entirely successful. I listened with great interest to much of his contribution and he will be surprised to learn that I agree with much of it. The Local Government (Planning and Development) Act, 1963, was the first comprehensive planning legislation. It replaced a much more limited series of town and regional planning Acts. The time has been with us for some years for a complete and thorough review of the 1963 Act. I was surprised at the conclusion reached by Deputy McCartan. It seemed that in much of what he had said he was pointing in the direction of a thorough and comprehensive review of planning legislation but he has come down in favour of something that is less than thorough and comprehensive.

When the 1963 legislation was being drafted the economic conditions were considerably different from they are now. We had gone through a period of population decline, there was stagnation in the economy and the previous decade was not marked by any sort of economic expansion. The drafters of the legislation could hardly have envisaged what would happen in planning or development. For example, they could not have begun to envisage the extraordinary value to which development land would escalate, particularly in the late seventies and early eighties. They could not have anticipated the sheer volume of development we have seen in recent years. The Minister has pointed out that over the last two decades we have seen 4,000 to 6,000 acres of land being swallowed up in development every year.

It is a tribute to the drafters of the 1963 legislation that we have in that period seen almost 500,000 houses built, that we have had industrialisation, urbanisation and sub-urbanisation. Notwithstanding the fact that the 1963 Act has served us reasonably well the fact is that it now requires a very dramatic, radical and comprehensive review. Another point about the 1963 Act which was, surprisingly, ignored in the contributions on this and which has been ignored in the general discussion on planning was that the Act dealt not only with physical planning but also focused on development. Planning authorities were to be development corporations under that Act. Under that heading they could become involved in joint ventures, in industrial development, in industrial training, in service activities, in tourism promotion and in the protection and creation of amenities. They are aspects of our planning operations in addition to the obvious weaknesses of the 1963 Act, which need to be reviewed at this stage and which, hopefully, will be part of the comprehensive legislation the Minister has promised us.

While the development section of the legislation has been used, it comes in for far less attention than the planning and physical development side of the legislation. Deputy McCartan dealt with property rights in a most interesting way. The property rights enshrined in the Constitution have been subject to a some what rigid interpretation which has cast a shadow over the whole question of planning and development.

Debate adjourned.