Deputy Quinn is in possession.
Private Members' Business. - Local Government (Planning and Development) (No. 2) Bill, 1988: Second Stage (Resumed).
Question again proposed: That the Bill be now read a Second Time."
I am conscious at all times of your impartiality but I trust that weary tone did not suggest a weariness with the contribution I was making before we adjourned for Private Members' Business.
The Deputy can be assured that I never weary of his contributions.
I know the Minister for the Environment is under diverse pressures but, perhaps before he leaves, he will listen to a summary of a considered and perhaps long contribution.
The basis of my argument in relation to this legislation is that Fianna Fáil in the past have hidden behind the constitutional position — or their perception of it — when dealing with the problems of compensation. Having been forced to come out from that cover by virtue of the continuing difficulties, the Minister is now introducing a Bill which, on the surface, appears to deal with the problem. However, because of the phrase that relates to people buying land or inheriting after a certain date, the real effect is of no consequence in substantial terms. There are some merits in the Bill in terms of consolidation of existing legislation and in relation to connections to sewers, other aspects of development plans and woodlands but the central core of the Bill purports to do something which, in reality, it does not. I am glad the Minister is here because I like to say things directly to people. We wasted our time debating the Act in relation to multi-story dwellings because the regulations to give effect to it have not been brought in. We would be much better off discussing Committee Stage of the Building Control Bill which, I understand, we might be doing in two weeks' time.
We can discuss it whenever it suits the Deputy.
The Minister of State and his officials will be able to give the Minister chapter and verse in relation to the various points made.
I was here for the full contribution.
The Minister was here for the first part, before his non-promotion.
There are those who seem to think——
I do not doubt the Minister's abilities in relation to the Department of the Environment but, unfortunately, he blew it in the early months of autumn.
Could we return to the planning which is in order rather than alleged planning in other areas about which we know nothing?
I now want to turn to how well the market for land functions and the general perception in relation to access to land for development or redevelopment purposes. Before Private Members' time, I said that after the two land Acts were passed, a committee on building land were established. After a long time — approximately one year — they issued a report with a series of recommendations, some of which are incorporated in the legislation but others which have not been fully taken into account, notwithstanding the fact that we very seldom get a chance in the House to make major, radical changes in legislation governing this area. The basic 1963 Planning Act and the 1976 amendment to it are the core areas but we have still done nothing significant about the question of administration or the legislative framework within which urban land is dealt with.
The recession has lasted now for eight or nine years and has taken the heat out of speculative scandals in suburban land which has, in turn, taken the heat out of the speculative scandals which were the driving force behind the establishment of the Kenny Committee in the late sixties. You and I, a Leas-Cheann Comhairle, were once proud members of the same local authority and, no matter what Minister for the Environment is in power, we will be faced with a new type of development challenge. I refer to the inner city areas, not exclusively in Dublin but in Limerick, Cork, Waterford, and a host of other towns which will increasingly be faced with problems in acquiring and putting together parcels of land which are capable of regeneration. We do not have a system of legislation in place which strikes the correct balance between the exigencies of the common good and the legitimate rights of private property.
I welcome the legislation in principle, however defective, because it is an opportunity to enable successive generations to deal with this problem. As the Leas-Cheann Comhairle might concede, I am speaking not just as a politician but with an interest that has animated a lot of my political involvement over the years.
I said in the Minister's absence that basically Fianna Fáil believe in the right of the speculator to scoop the pool. There is a touch of the lottery about the whole attitude to land speculation and if your number comes up because a compulsory purchase order was put on your stretch of land, disused coal-yard or your granny's old factory, it is right and proper to avail of it. Indeed, the Taoiseach is a major beneficiary of a windfall in relation to a previous property which he owned in Grangemore. In an edition of the Sunday Independent in the late seventies there was a three-part profile of the Taoiseach by Mr. Vincent Browne, now the editor of the Sunday Tribune, who is a great admirer of the Government and regards it as the best in 20 years. In relation to the undoubted and professed wealth of the Taoiseach, Mr. Browne said it was acquired by buying and selling well. I am not casting any aspersions on the individual involved, I am simply challenging the position which Fianna Fáil consistently had in relation to defending the exigencies of the common good against the individual speculator.
I ask Deputy Quinn to make his case without personalising it, as he may be misconstrued.
I am not trying to personalise it and I draw your attention to the fact that the press gallery is empty. I am simply making a serious political observation because I do not believe in cheapening politics. Now is the time for Fianna Fáil to clearly state that they are in favour of getting the balance right. They should not hide behind this constitutional defence. In the Minister's opening speech he said he was advised that he cannot make this provision effective irrespective of the date of acquisition, because of a presumed unconstitutionality. At this stage I might be open to the admonition that I am repeating myself but as the Minister for the Environment is here I am availing of the opportunity to say directly to him that he should seriously consider removing the time clause. If the question of constitutionality arises, we should let the courts decide. Earlier I cited two previous Fianna Fáil Ministers and various other speakers. For some reason the Government have hidden behind, taken refuge behind or been obliged to take account of the constitutionality argument.
In a different case in the Department of the Environment, who are charged with responsibility for introducing legislation with respect to voting rights for UK citizens, a similar argument was adduced from the point of view of legislation and the mechanism was found. Likewise, the Minister's predecessor and Cabinet colleague, Deputy Burke, when Minister for the Environment, introduced two Bills in relation to rent restrictions, following the successful constitutional challenge made by a Fianna Fáil councillor, Councillor Madigan, who at that time was a private solicitor. The Kenny report cites the rent control legislation as being evidence of the presumed constitutionality of the recommendations in the majority report.
I do not want to labour this point but this is something about which I feel very strongly. Ministers of the day should take account of what the Oireachtas is saying as distinct from what the advisers to members of the Oireachtas are writing in relation to not moving outside the framework of what you can and cannot do under Article 13 of the Constitution with the presumption of constitutionality.
I know of two pieces of legislation that were brought in by the Government of which I was proud to be a member, which had a question mark over their constitutionality. There was no legal advice to the effect that they were not constitutional but there was a considered legal view to the effect that there would be a respectable body of legal opinion that would challenge the constitutionality of this provision, but notwithstanding that, it should be brought in and, if needs be, the time-honoured convention of recognising that debate about its constitutionality should be addressed by the Minister. The signal, in conventional terms, should be given by the Minister so that the President of the day can, in his wisdom and having taken the advice of the Council of State, refer the matter to the Supreme Court for a speedy adjudication and a definitive ruling.
Would the Deputy disregard legal opinion duly sought and offered in good faith?
I have the greatest disrespect for the assembled body of legal opinion that comes out of the impregnated walls of the Custom House on the one hand and the Attorney General's office on the other in relation to the constitutionality of any measure that attempts to strike a new balance in the perceived relationship between private property rights on the one hand and the exigencies of the common good on the other. It is my great regret that, while I was honoured, through the democratic system in this country, to hold power I was never able to exercise it to full effect in relation to this area. The legal view is mistaken. I referred to this earlier when I quoted Justice Ronan Keane, a member of the High Court, who is not a stranger to many Members of this House and also Justice Griffin, both of whom said that the Supreme Court has never been properly tested in relation to this matter.
There are a series of civil servants — lawyers who have practised most of their lives as legal advisers and who are preempting the prerogative of the Supreme Court in relation to determining the constitutionality of the balance between private property rights on the one hand and the exigencies of the common good on the other. I paraphrased the comments made by Justice Walsh and Justice Neil McCarthy on the same issue. If the Minister wants support from the Labour Party on Second Stage of this Bill — I would have to tell him at this stage that the Labour Party will be voting against it——
The Deputy told me that last week. He should tell me something new.
I am suggesting how the Minister might get our support. After the defeat on the family law legislation no doubt he would like to get this Bill through, although clearly Fine Gael will assist him in that.
I want the Bill to be right and good.
The Minister in his reply should indicate that he is prepared to remove the time clause in relation to the compensation issue. The provision I am referring to states that people who acquire land after a particular date — I think it is 28 October 1988, the date on which the Bill was published — people who would otherwise inherit land by virtue of the laws of succession or people who have owned land before that date, will be exempt from this provision. The Minister in his introductory speech on Second Stage said that he put in that time clause on legal advice to the effect that such a retrospective type of measure without the time clause could be deemed — I am interpreting what the Minister said——
Is likely to be.
He said that in order to meet with the constitutionality requirements he had to put in this time clause.
I do not think I said that.
I am quoting from memory. I have listened to the Minister's speech and I also read it. There is a time clause, starting from the publication of the Bill or alternatively, according to Yvonne Scannell who writes for the property section of The Irish Times, from the enactment of the Bill. The measures in relation to one aspect of compensation for land owners would only apply if they had bought or acquired land after a particular date. The people who would inherit land would be excluded from the provision as would people who owned land prior to the publication of the Bill or its enactment. The reason that qualification was put in was that the Minister was given advice to comply with the constitutionality requirements.
I do not think I used the word "Constitution" in my Second Stage speech.
I think you may have used the word "constitutionality" but I am subject to correction on that.
Yes, he did.
Not in that connection.
That was the way I interpreted it. I have a major reservation in terms of the effectiveness of the Bill. It does not go half far enough. I have to be, as I always try to be intellectually open, frank and honest. There are many good provisions in the Bill such as the extension of the non-compensatable grounds as was recommended by the Building Land Committee. From a consolidation point of view the Bill also has some merit. I am opposed in principle to the Bill at this stage for the following reason. It does not deal with two problems. I regret to say that for the last two years we have had no substantial indication from the Minister or from other Fianna Fáil Ministers of a willingness to significantly trade on Committee Stage and to accept substantial as distinct from technocratic amendments.
Perhaps the Deputy would wait a moment. I conceded amendments last year here on a major Bill. That is not to say I would do so this time. What I said was that I am open to suggestions to improve this Bill and those sentiments were genuine.
I accept the Minister's remarks in that spirit. I am merely saying to the Minister that the provisions of this Bill will not enable local authorities or indeed the private sector to assemble parcels of land or acquire land on the periphery or in centres of towns and cities unless the constitutionality question is dealt with. The constitutional question has imposed itself by way of the time clause inserted in this Bill. That is the way I read the provisions. The Minister's advisers will be much more skilled than I on these aspects, will be able to guide him and the Minister will have time to reply to the Second Stage debate. In summary, that is the basis of my argument. I should like to put on record some of the recommendations of the Oireachtas Joint Committee on Building Land with regard to the operation of the land market. That committee was comprised of what might be described as senior Members of both Houses of the Oireachtas. The Deputies representation was comprised of: Michael Begley, Hugh Coveney, Avril Doyle, Jim Fitzsimons, Michael Keating, Ray MacSharry, Robert Molloy — a former Minister for Local Government — Albert Reynolds, Alan Shatter, Liam Skelly, Seán Walsh, Pearse Wyse and myself. The Senators were: Senators Bulbulia, Cregan, Durcan, Fallon, Ferris, Jack Fitzsimons and Brendan Ryan who spent much time deliberating on the issues generated by the debate on Second Stage, of the Labour Party's Private Members' Bill in Private Members' time, in May 1982.
I am simply maintaining that the market mechanism here does not operate well because we are being forced to pay exorbitant prices which do not relate to real market value and, as a consequence, the delivery of an urban infrastructure is being distorted, twisted and people disadvantaged. The report of that Oireachtas Joint Committee was published in July 1985 and I quote from pages ix and x:
The Committee concluded that the market in privately-serviced land works well. In general there is a fairly ready supply of sites available; the price paid for private single house sites reflects the value of the site to the final user and is generally a good indicator of land values.
The committee went on to say:
The market for publicly-serviced land operates reasonably well, but there are a number of imperfections arising from its interaction with the planning system, land availability and price distortions. Land prices in this sector of the market do not adjust smoothly, and are distorted by influences unrelated to building use. This means that the market price cannot ensure, in some cases, that land becomes available in an orderly fashion. Also, from time to time, prices do not reflect the development potential of publicly-serviced land.
On page x of their report the committee had this to say:
The Committee concluded that there is a partial failure in the remaining sub-sector, the market for urban land. The holding of land by public bodies, landholding by the private sector for asset purposes, and other reasons arising from the operation of the planning system, combine to restrict the supply and encourage the overpricing of urban land. The price of urban land is consequently too high in relation to the risks and high costs of redevelopment and does not in general reflect its development potential. These factors are major causes of urban decay.
That last phase "urban decay" might jog the Minister's memory in relation to previous contributions of mine in this House. That is why I am endeavouring to make a serious, constructive contribution to this debate without engaging in parliamentary games. Not alone has the Minister the unique honour of holding his portfolio but he is also afforded an opportunity now to do something that would provide the basis of an extraordinary framework within which positive work could take place between now and the end of this century. The provisions of the Bill before the House go nowhere near meeting those objectives. From what I know of the Minister, both privately and publicly, I do not think he has any antipathy toward achieving that objective. I am endeavouring to advance a series of arguments and reasons for the Minister to overcome the enormous body of legalistic advice in regard to what he can or cannot do vis-à-vis the provisions of this Bill.
I want to talk now about the question of compensation and its inherent problems identified by the Irish Planning Institute. I might quote from their report entitled Planning and Compensation published in October 1988. I might list the members of that sub-committee — which included myself, though not a very active member and, therefore, played no part in the production of this document — who were: James I. Brogan, Berna Grist, Nicholas Mansergh, Philip O'Sullivan, Keith Simpson, Michael Walsh and Henk van der Kamp, the last-mentioned now working here but hailing from another jurisdiction and with another training. They are people of diverse academic training and qualification. In the summary of their report, at paragraph 2.0 they had this to say:
In this report it is proposed to redefine the balance by limiting the eligibility of landowners for compensation and revising the way in which compensation is measured.
—which is one of the Minister's objections in this Bill.
In paragraph 3.0 of their summary the sub-committee had this to say:
Our recommendation on eligibility is based on the principle that a landowner is entitled to compensation if he suffers a loss as a consequence of being unable to carry out reasonable development of his land i.e. development which would not be in conflict with the specific provisions of the democratically adopted development plan. (Zoning; preservation objectives; the regulation and control of structures and the layout of areas). We recommend that Section 56 (1) be amended to take account of this principle and that no compensation should be paid where a development proposal is in conflict with the specific provisions of the democratically adopted development plan.
I do not think the Minister has any difficulty with that recommendation.
I just do not see the relevance because I have no problem with it.
When the Minister hears the rest of it he will realise that these recommendations emanate in some cases from people who agree with the Minister. I am not quoting the devil entirely against the Minister.
We will not go through the list of recommendations in its entirety because I know they are advising another party.
I thought that would be the Minister's reaction. I may not be from Mayo but I have learned some of the characteristics of his beguiling charm.
I learned one thing early in life. You cannot enjoy the play unless you know the players. I know some of the players.
Since the Minister was so keen to accept the recommendation I just referred to perhaps he might consider the following one which the Minister has not already taken on board in the Bill:
6.0 We also consider it expedient at this point in time in light of the above recommendation and recent case law and developments in planning that a number of other anmendments should be made to the Planning Acts and the Public Health (Ireland) Act, 1878. These would provide for, inter alia:—
(i) Zoning to be mandatory in rural areas.
That has an enormous bearing on the Minister's plan and that is why I am reading it out now, and I am not being facetious.
(ii) The refusal of permission on the basis of the non-availability of public sanitary facilities to be non-compensatable.
I congratulate the Minister for taking this on board.
(iii) Compensation claims to be limited to decisions on appeal.
That relates to protection for the local authorities with which the Minister would not have much difficulty.
(iv) In the event of development being permitted at any time in the future on a site where compensation has been paid, the compensation to be repaid to the planning authority.
This should not cause any problems.
That is agreed.
(v) Undertakings to be statutorily defined and clear procedures to be set out for granting them which would allow for public participation.
I am being intellectually generous. The Minister is very close to getting this right but I cannot understand why he cannot go the full distance. The last point is:
(vi) Permission to refuse under the 1878 Health Act to permit a connection to a sewer where its capacity is intended to serve land designated for development elsewhere.
There is nothing new in that except the rural mandatory element which I have to consider.
That is my whole point. You have gone three quarters of the way down the road. The Department have gone close to accepting these things and in some respects have displayed an openness to accepting the conclusions of some of these people who have no political axe to grind. Since you could accept virtually 90 per cent of what was there, why not the rural zoning, because in the context of what is happening at the moment in terms of dealing with the problems of compensation and claims and the change in zoning, you will close off an enormous loophole by having rural zoning included in the grounds for non-compensation. If you require a local authority to zone all the land, the non-zoning of land would be addressed and the ambiguity would be resolved.
In the context of what would be required for integrated programmes in the community, for which the Minister now has responsibility, I wish the Minister luck if he can get anything out of the Department of Finance. The Minister did not get the job in Finance but I hope he gets the responsibility for running those programmes.
I was not looking for the job, you know. You have to get that out of your nut. If you only knew.
The Bill does not go far enough but it could go a little bit further if you were to require local authorities in their development plans to zone all land within their adminstrative areas, including rural land. That would remove the potential loophole that could emerge in relation to compensation. More importantly it would deal with other problems for which the Department have partial responsibility, relating to coming to terms with agri-business and the requirements that agri-business and intensive agricultural use should be subject to planning permissions, and the whole Lough Sheelin problem and so on.
That will be covered in a Bill which I will be bringing in in a couple of weeks on water pollution.
Let us do it right. We are not talking about a country the size of the US. I have always regarded the 1963 Act introduced by Neil Blaney as one of the most radical pieces of legislation ever put through this House. After its 25 years in operation, we surely can bite the bullet in relation to extending a framework of planning control to the entire country, and part of that surely includes the provision for zoning of agricultural land held by the local authorities. The reason I quoted that report is because you are able to accept——
This should really be non-contentious if we were getting it right. As far as I am concerned planning legislation should have the support of everybody in the House. Local authorities can zone all the land——
They can but they do not.
They can. It is not mandatory on them but they have the capacity to zone all their land for residential, agricultural or other use. They have this capacity under the 1963 Act, so why are you making such an issue out of it?
Because you have seen fit to take on board many of the other recommendations these people have made. These people are professionals in the area and have no political axe to grind. It should be mandatory on local authorities to zone all the land. It could be done by different means, for instance by changing the guidelines for planning authorities. I want the political embracing of the idea that we will clearly define and put within the framework of our planning legislation a designated use for every square metre of land in the country. That does not mean that a farmer will need to get planning permission to do every little thing like moving a cow shed or a piggery. The zoning can be stated in such a way that there will not be undue constraint on the individual. In the broader sense this legislation specifically deals with the question of compensation and there is a big gap in the area where land is not zoned for any particular purpose. To close that gap mandatory zoning is required right across the board. The Minister should consider that argument. There would also be a knock-on beneficial effect in that if there was such zoning which will close a potential loophole in relation to compensation — because the vast majority of rural land will never be subject to speculative bids by property developers — you will give to a local authority and to yourself a framework within which other kinds of planning provisions can come into effect.
I am sorry to interrupt Deputy Quinn but he will appreciate that for the better procedure at this Second Stage reading it might be more desirable if he would address his remarks through the Chair rather than engaging in a discourse with the Minister across the Floor of the House. That might be more appropriate for the Committee Stage, but I would prefer if he would make his point on this Second Reading directly through the Chair and if at all avoidable, without reference to the Minister as such.
I apologise. I agree I have strayed from the normal convention that should prevail for Second Stage. I appreciate the latitude given.
I have given the Deputy a lot of latitude.
I appreciate the latitude given to both of us. I will now return to a subsequent recommendation made by the Irish Planning Institute in relation to the Bill published. They have a number of criticisms of the Bill. Deputy Keating referred to some of those.
I am conscious of the amount of time I have taken up and I do not want to take up much more, so I will summarise their point. Perhaps we can deal with this on Committee Stage where an exchange of comment would be more appropriate. Their interpretation of what I referred to in the vernacular as the time clause — the exclusions in relation to compensation for those people who bought land — if properly invoked by an inheritor of land or by somebody who owned the land before the operative date of this legislation, whatever that might be, will be by far the dominant number of people currently owning land in the vicinity of urban areas where suburbanisation and suburban growth could be anticipated. Therefore, what the Minister is proposing is not a solution. That is a summary argument and the Minister and his colleagues are aware of it because it is already in print and no doubt they have the summary of the IPI's response, but in deference to the House, I will not put it on the record. I am simply requesting that the Minister address that point.
It has been suggested to me by legal people with knowledge of the property area that it is not clear from reading the Bill whether there is a loophole — after the Bill comes into effect a person who wants to buy land from the current owner of land in an area that would be subject to a compensation loss, can avoid that loss by obtaining effective control and ownership of that land by means of a company mechanism. In other words, if I owned land, alone or with others, on the periphery of a large city or town, and I am aware that when this provision is introduced we will not get planning permission and that if we do not apply for compensation now we will not qualify because of the time clause in the Bill, I could convert my ownership into the legal ownership of a company rather than the legal ownership of an individual — a lot of this land is in the legal ownership of a company rather than an individual for tax reasons and for public and legal liability reasons — and a person could sell the company without necessarily selling the land. I am referring to a possible loophole and I am asking the Minister and his people to take advice on it.
If it is there it will be closed.
I am giving the Minister notice. This is a complex Bill in one respect and I am simply putting on record that it appears to some people that this loophole exists. If the land is owned by a company any time prior to the publication of the Bill, or the coming into effect of the Bill, and the Bill goes through in its present form, and if they sell the company but not the land, they will escape the sanctions and the provisions of the Bill. In other words, my understanding of the Bill is that it is proposed to ensure that after a certain date property would lose certain compensatable rights which are currently enjoyed, and the Minister is attempting to reduce the area of compensatable claims, and in that respect he has my support. This loophole has been identified and I would like the Minister's legal people to look at it.
If we take this Bill through Second Stage, Committee and Final Stages, then into the Seanad and then send it on to the President, knowingly or unwittingly creating such an enormous loophole, many people could legitimately ask what was the purpose of the whole exercise. I felt obliged to draw the Minister's attention to that very substantial point.
While there are positive elements of this legislation which deal with aspects I do not think anybody could argue with — the protection of woods, access to sewers etc., I want to challenge what I think is part of the inferred logic in the Minister's speech. He produced some very interesting statistics in relation to planning compensation claims. He said:
Statistics on planning compensation claims have been systematically compiled only since 1982. In the period to 1987 these indicate that, nationally, an average of some 25 claims were made each year with payments being made on average in two cases per year. There is a striking contrast between the aggregate amount of compensation claims over the past six years which amounts to £79 million and the actual payments of £90,000.
On the debate on the Progressive Democrats' Bill, the Minister said that in the same period there were 182,000 planning applications and something like 130 claims for compensation, of which a very small number, nine — from memory — were paid out for a figure of less than £90,000, because this is an updated statistic.
I would not like the Minister or his Department to think that the apparent gap between the claims and the reality of the payments made would be a cause for comfort or would I like them to deduce that we do not have to worry about compensation or claims for compensation because of the actual amount paid.
As the Minister knows, I was a member of a local authority from 1974 to 1977. I know from my experience in the Dublin city area — which is mostly built up and not subject to the sort of difficulties that exist in suburban areas — that at least two planning permissions were reluctantly given by the planning authority because of the possibility of compensation payments. I suspect the same would be true if we were to put side by side with statistics given by the Minister the number of planning permissions reluctantly made, in many cases against the advice of planners and the will of administrators but faced with the probability, and the legal advice, that if they did not do it they would be faced with a compensation claim, as well as the bureaucratic scrutiny of the Department of the Environment to see why they had incurred this massive expenditure.
To that extent, the absence of this legislation has distorted the way in which development plans were supposed to be implemented, the way planners thought they should be implemented, or the way local councils, which have the reserved function to ratify and formalise development plans, thought they should be implemented. The Minister between now and the conclusion of Second Stage might, through the resources the Department of the Environment have, set side by side with those statistics, the number of decision in the key planning areas. We are talking about the key urban aras, probably no more than about half a dozen throughout the country, where permissions have been granted because of the danger of a compensation claim and the reality of compensation claims, but we are not going to be able to get the order of magnitude of the problem at present. If this is the official departmental response to the problem of compensation one could infer from it that there is a great deal of noise but very little substance to the problem of compensation.
No, purely statistical.
So long as we are aware that the absence of a very clear and firm legal framework in relation to the question of compensation is distorting—
I would refer the Deputy to the last paragraph on page 3 which shows substantially that a lighthearted approach is not being taken.
The reality is different.
Yes, that is right.
"A well publicised award of some £2 million — is still under legal appeal — has been made against Dublin County Council——"
Yes.
"——and has focused the compensation issue very sharply." I am not sure that it goes right into the depths of it.
I pray the Deputy to read the next sentence into the record.
"There is also a widespread perception that the threat of incurring heavy compensation liabilities may be inhibiting the proper exercise of planning judgments in certain cases."
That is the one I wanted.
"The Bill has been prepared against this background.
Yes.
Well, if it has been prepared against this background why is the Minister not prepared to go down the full extent of the road to give effect to it?
There seems to be very little between us.
I am sorry to intervene again but I would remind the House and the Deputy in possession that it would be inappropriate to debate the Bill in great detail now. That is a matter which should be left for Committee Stage and I seek to dissuade Deputy Quinn from going into much details at this stage. It simply is inappropriate. We shall have ample time to go into all the matters referred to in great details when we reach Committee Stage of this Bill.
Let me then proceed to conclude on the following basis. Since I came into this House and before I came to this House this Oireachtas has been attempting to deal with this problem of urbanisation and the balance between the exigencies of the common good and the legitimate rights of private property which I totally defend and make no apology for doing so. There have been a number of attempts to address this problem which have not been successful. In my view this Bill, which purports to be an attempt to address this problem, will not be successful because it fails to deal with the compensation question in its essence. Deputy Boland concurs with me in his comments on the PD Bill which is not dissimilar in many respects to this Bill. There are good proposals in this Bill. I would not take that away from the Minister, but unless we deal with the basis of the 1919 Valuation Act and the presumption of interpretation by the Supreme Court we will not get to the root of the problem. I am contesting that the Minister has avoided this issue for whatever reason. I have speculated to the reasons. I may be wrong in my speculation, and if the Minister wishes to come in at the end of Second Stage and correct me I will be glad to accept the corrections but I want to restate succinctly what I think are the reasons for the avoidance.
I believe the Fianna Fáil Party are not committed, and I have put on the record over a number of hours various citations of the Constitution being the impediment to doing what they would otherwise like to do because they perceived they were doing the right thing, when in reality the Constitution is not a barrier because the judges have invited us to submit a suitably stated case. The Leas-Cheann Comhairle was in the Chair when I made this point previously and I do not want in any way to be personal about it, but I want to say that since approximately 45 per cent of the population vote for Fianna Fáil I am not necessarily castigating the Fianna Fáil party. Perhaps they are reflecting accurately a sentiment in the country——
Did he say 55 per cent?
I said 45 per cent.
The Deputy made that point earlier. Repetition is not in order. The Deputy has made all these points.
I am summarising now and I am saying that perhaps they reflect this public view, but they are not putting the balance right and the exigencies of the common good are not being respected. Accordingly, I have to say that, while there are some individual merits in the Bill in relation to its consolidation and some of the new non-compensatable reasons, we are not going to get another opportunity in the foreseeable future to deal with this problem. This Bill will do nothing in real terms for the urban crisis we face, and it will do something far worse. The promoters of the Bill will present it as purporting to do something for the crisis. It will be paraded as another Irish solution to an Irish problem, and the last time we had that we did not get the solution to the problem; we got a kind of cosmetic overlay. I say that regrettfully because I bear the Minister no ill regard. He is evading an opportunity. I advise him that as the Bill stands now we are opposed to it.
I welcome the Bill and I compliment the Minister for producing wide and comprehensive legislation here in relation to the very vexed question of planning compensation and other related issues. As one who has had considerable experience of serving on a local authority, the very large Dublin County Council, for the past ten years I can say this is an issue that has arisen frequently at council meetings and occasions when we were considering development plans and drafting them. I have been somewhat surprised that the sort of legislation the Minister is now bringing forward has not reached the floor of this House in the past, particularly because the compilation of the statistical information available to us on this issue of compensation claims began in 1982. There have been several public debates on this issue arising largely out of some celebrated court cases on the issue of compensation which have been widely reported and debated. Therefore, we have been very slow, certainly in the past ten years, in bringing forward legislation and it has fallen on this Minister to produce the sort of legislation which all of us, particularly those who have the experience of serving on local authorities, were calling for, since the late seventies in my case when I became a member of Dublin County Council.
The Minister in his contribution to this debate has pointed out that the main purpose of this Bill is to amend and consolidate the law on planning compensation. I will show later that the Bill seeks to amend certain provisions of the sanitary services code so as to regulate connection of premises to public sewers and water supplies in a manner which would be more consistent with the modern planning process of today.
Planning compensation and the threat of planning compensation claims have been discussed widely and commented upon for a number of years. It is interesting to note that the statistics on planning compensation claims have been systematically compiled since 1982 and are an indication that even since then the problem has been growing. Even prior to that, going back to the Local Government (Planning and Development) Act, 1963 when the whole issue of compensation was fairly widely installed and spread throughout the Act rather than confined to one section of it, we have had this issue before us and we have not really addressed ourselves to it properly until now in legislation.
As I understand it the statistics I have referred to show that since 1982 approximately 25 compensation claims have been made on an annual basis. Payment has been made in two cases per year since then. Over the past six years we have had claims totalling £79 million but only a very small proportion of that has ever been paid, something in the order of £90,000 which is a small figure compared with the total amount claimed. The real issue here is not what has been paid nor, to some extent, what has been claimed because it is my opinion that many of the claims are purely speculative and are put forward for a whole variety of reasons. With the exception of one or two very recent cases, all or most of them have failed. This shows the speculative nature of some of the claims.
The real issue has to be whether the threat of a compensation claim flavours the approach of local authorities in terms of making planning decisions. That is the area that many of us who work on local authorities come to understand in a particular way. We have been confronted from time to time with the issue of whether to grant a planning permission or refuse to do so knowing that the word is out that there will be a compensation claim lodged. Often the manager finds himself forced to make a recommendation to members that they should support the granting of a planning permission in certain circumstances to try to avoid the possibility that a compensation claim may arise. In this area local authorities felt threatened financially by the possibility of such claims and that led to planning decisions being taken which, to some extent, gave rise to concern on the part of officials, of elected members and the public at large.
All the local authorities have now adopted their development plans and many are under review at this time. So local authorities, through the adoption of development plans, have laid down their particular development strategies in their administrative areas. That plan remains in position for five years and is reviewed at the end of each five year spell; but it is an outline of the local authority's strategy on how its area will develop, hopefully in an orderly manner. Within its own administrative area it can have a measure of control relating to planning decisions and planning permissions. The objective of the development plan strategy can often be thwarted and frustrated to some extent when the local authority finds itself facing a compensation claim or the threat of a compensation claim. This is unfortunate because local authorities are, after all, charged with the responsibility for the orderly development of their particular administrative area and they have always found that this issue has been contentious and has increasingly manifested itself in relation to the correct planning process. Nowhere was this more evident than in some of the rapidly growing areas of the country, particularly on the outskirts of Dublin which I would have some knowledge of. Over the last 20 years there have been between 4,000 and 6,000 acres of land developed on an annual basis. We have built about 500,000 new homes during those 20 years. We have the major urbanisation programme that took place on the outskirts of our larger cities and towns and, in Dublin, the creation of major towns like Tallaght, Clondalkin and Blanchardstown. This was major development all done in a reasonably orderly way, all achieved in an orderly manner, contributed to by local authorities in terms of their own development plan strategies with the input of officials, of elected representatives and of the community at large in the making and adopting of those plans.
Between the years 1982 and 1986 about 182,000 planning applications were dealt with by local authorities and out of all of those about 130 compensation claims arose. This was a very small number of compensation claims arising out of a huge number of planning applications. The real problem in these areas has arisen not necessarily from a disorderly approach to development but as a result of a delay in the completion of these developments by some of the major developers, for example, the completion of housing estates, and the delay in the arrival of the infrastructure required to support those new areas that I have referred to. Some times confusion arises as to what the role of the local authority is in relation to the provision of those services. The present law in relation to planning compensation is principally contained in the Local Government Planning and Development Act 1963, particularly Part VI of that Act. Since then there has been a considerable number of court cases which have built up a substantial volume of case law around this issue of planning compensation. Because of the extreme importance of the issue it would be much better if the legislation was made more clear than it is at present. That is what the Minister is also trying to do in the legislation we are now discussing. The 1963 Act is not as clear as it could be particularly in the light of the case law which has developed since 1963. The legislation we are now discussing repeals all the existing provisions on planning compensation and restates them subject to a number of amendments in what I consider to be a simpler and more rational format which will perhaps be more easily understood by those involved in planning and development, by local authorities and elected members so that when we are called upon as local authorities to make decisions that have implications relating to compensation claims or the possibility of compensation claims we will better understand the legislation that is available to us. I have to say that the 1963 Planning and Development Act is by no means clear in relation to the issue of compensation. Cases that have arisen since then have further complicated the issue and made it extremely difficult for elected members of local authorities to have a serious input when discussions take place regarding developments that might or might not give rise to compensation claims. Anything this House can do to make the legislation more easily understood would be welcomed by all local authorities, both management staff and elected members throughout the country. The Minister made this point in his contribution. Apart from updating the legislation and bringing in this extensive new legislation he is also setting out to make it more easily understood particularly in relation to compensation issues. That is a good day's work as well.
The Minister said also he feels there is a need for community bias in the area of planning compensation. This is a very important point. For a long time it has been felt that planning legislation as it is enshrined in the various Acts tends to benefit the developer. That may or may not be true. At the same time there is a general perception that too frequently the common good has not been served by planning decisions that have been made and that is a disappointment in so far as the present legislation is concerned. Any strengthening of the legislation is to be welcomed. There is no doubt that the provisions contain a bias in favour of the community good. The needs of communities will be taken into consideration when decisions are being taken. They will not be ignored as happened all too frequently in the past.
The right to connect to water and sewerage facilities is extremely important. That vexed issue, which has been raised very frequently in the past, did not merit much comment from previous contributors to the debate. Local authorities have been unable to preserve capacity within those services in the past because of the right and entitlement of developers to tap into the facilities. There have been many cases in the Dublin area where the courts have found in favour of landowners seeking to connect to those services. The Minister has included a provision under which planning permission can be refused where water and sewerage facilities are deficient, without the threat of compensation, or where the capacity is required for future development. Indiscriminate tapping into those services can frustrate future development plans of local authorities. I am pleased the Minister is conferring powers on local authorities to act to preserve capacity for future development without a threat of compensation should they refuse to grant planning permission. Those of us familiar with the problems caused by indiscriminate tapping into the services will welcome the Minister's move.
I welcome the provisions in relation to pollution. A local authority will be able to refuse to grant planning permission, without the threat of compensation, if they consider that a project will cause serious air pollution, water pollution or pollution connected with the disposal of waste. That important feature of the Bill has not been referred to by other speakers. It is important that we should be conscious of the need to protect our environment. We are all aware of industries or development projects that have caused pollution. The Minister has recognised the difficulties faced by local authorities in regard to certain applications and has given them power to refuse planning permission if they feel there is a threat to the environment.
The Bill also states that conditions may be attached to a planning permission, without the threat of compensation, in relation to the preservation of buildings of artistic, architectural or historical interest. That is an important provision. In recent years with our cities and towns extending into the countryside old buildings and structures of historical importance have come under threat. There is a great need to preserve them.
The Minister has told us that in regard to the preservation orders local authorities may attach conditions, without compensation, requiring a proportion of woodlands to be preserved or the felling of trees to be phased. This issue has been raised in recent years and there have been a number of debates in the House concerning the felling of trees. Local authority representatives have been pressing for the inclusion of many of the provisions in the Bill. I was interested to hear Deputy Quinn say in his long and often times interesting contribution that the Minister had gone three-quarters of the way by the provisions of the Bill. That is a great compliment by Deputy Quinn. It is worth noting that the Minister in his opening remarks said that he was prepared to take any reasonable suggestion on board if it merited inclusion in the Bill. The Minister's interjection this evening indicated that his sole concern is to produce a sound piece of legislation that will give powers to local authorities to help them correctly organise their affairs without having to look over their shoulders and take account of a threat of compensation.
We are not trying to stymie development; we are setting down the parameters for developers, large and small, and making it clear what they are entitled to do. Once they are clear of these matters they can get on with their particular brief which is orderly planning and development supported by the local authority. For that reason we should make the legislation, so far as we can, as simple and straightforward as possible and in my understanding of the Bill the Minister has set out to do that.
I have seen the kind of issues I have covered arise from time to time in Dublin County Council. With this legislation in place I am convinced that the hand of local authorities in terms of planning and development will be considerably strengthened. I know that the members of those bodies will welcome the legislation we are now discussing. I am confident that once it is enacted it will ensure that the next phase of development, particularly in urban areas, will be done on a more orderly basis than has been the case in the past.
In conclusion I want to compliment the Minister for the straightforward way in which he has introduced this legislation, for the simplicity of the legislation so far as it is easy to understand and, from the point of view of local authorities, the powers that it now confers on them to be able at least to deal with the issue of compensation, and the threat of compensation, which has bedevilled local authorities in their approach to the orderly planning and development of their areas. The Minister has said he is willing to listen to any suggestions. I suppose another occasion will allow us to speak of those and, perhaps, to introduce them. I commend the Bill to the House and I applaud the Minister, and the Minister of State who is present tonight, for their work on this legislation and for bringing it forward at this time.
I welcome the opportunity to speak on this Planning and Development Bill. I thought this evening, Deputy Quinn having got three bites of the cherry, that he was going to see us burning the midnight oil and having to wait another day or two before getting our opportunity to make our comments. There are several design flaws in this Bill. It is flawed in three major aspects.
Firstly, planning is a constitutional problem just as much as a legislative problem. The Bill does not address the constitutional aspect of the problem. Secondly, as legislation it has several major flaws and weaknesses which may, in the long run, do more to add to the planning problems than they try to resolve. Thirdly, because of its omissions and its lack of comprehensiveness it constitutes a litany of missed opportunities to resolve some of the recurring problems in the planning area.
I wish to deal first with the constitutional aspect of the legislation. It is common knowledge that many of the uncertainties and much of the confusion in the planning area stems directly from our Constitution and the interpretation and misinterpretation of Article 43 which relates to private property. This confusion exists both within and outside the law courts. There are always constitutional implications whenever we tamper with our planning laws. The provisions in the Constitution relating to private properties can be seen either as a strait-jacket or a bulwark depending on one's point of view. There is no evidence before us that the Minister has given any serious attention to this most fundamental aspect of planning. Has the Minister given any thought to any possible amendments to the Constitution which would remove much of the confusion and uncertainty once and for all so far as this legislation is concerned? It would appear from all the evidence to date that the Minister would like the present confusion and uncertainty to continue and to be compounded further with this Bill if it completes its course.
There is one extremely interesting reference to the Constitution in the Minister's speech which serves to illustrate just how shaky this proposed legislation is and how, in the long run, it may be rendered redundant. I refer to the paragraph in the Minister's speech dealing with section 15 (3) of the Bill. This gives exceptional powers to the Minister for the Environment to order the payment of compensation when all the other stated measures would have failed. The Minister says this power is desirable so that the constitutionality of the Bill will not necessarily be threatened by hard cases arising in the operation of its normal provisions. When Deputy Quinn was speaking I think the Minister asked if the word "constitutionality" was in his speech. It is evident that he had forgotten it was. I take it that if it is there, it is there for a reason. I am taking to task that particular reason. What the Minister is saying here is that he wants the power at the end of the day to make a settlement on the steps of the High Court when all the other remedies have been exhausted because he is not happy that his legislation would stand up to a constitutional challenge in the courts. That is evident on the basis of the to-ing and fro-ing that has taken place here this evening. It must be unique for a Minister (a) to have so little confidence in the constitutionality of his own Bill and (b) to send such a blatant signal to the more ruthless speculators that if they stay in there the Minister will look after them in the end. In relation to the particular aspect of the proposal we are speaking about I would be worried, in so far as compensation is concerned, that when people have gone through all the avenues, if the Minister is not happy he will end up sorting the problem out. I do not believe that should be the case. It is for that reason, perhaps unknowingly the Minister invites such a possibility, that I would wish the President under Article 26.1.1º of the Constitution to refer this legislation to the Supreme Court so that we will all know, sooner rather than later, if the whole exercise has been a waste of time in the House because it could be found to be unconstitutional.
My second area of concern relates to the terms of the legislation itself. The 1963 Act, which this Bill attempts to consolidate, was introduced to this House by Fianna Fáil and was rightly regarded down through the years as a speculators' charter. This Bill is a gesture towards public opinion in pretending to reform the 1963 Act when in fact it does nothing of the kind. For instance, the Bill will retain intact speculators' right for all those who have acquired land before 20 October 1988. Furthermore, future generations of speculators who require such land, (a) by inheritance or (b) by family settlements, after 20 October 1988 will continue to enjoy the same speculators' rights as their forefathers enjoyed. That is the reason there has been a lot of to-ing and fro-ing in regard to this matter and it is evident that it has not covered the area I have mentioned.
It is common knowledge that an abnormal amount of land acquisition took place before 20 October 1988. Not only will such speculators be entitled to a reward but the sons and daughters of speculators can look forward to rich pickings of their shares of the spoils in the future. One expert in the field estimated that a staggering 90 per cent of planning applications to local authorities in the foreseeable future will come from within this category. These people will have high expectations of compensation should everything not go the right way. The Minister has told us that there have been claims for about £79 million in compensation even though very little has been paid. This results from the fact that it was well known that a date was going to be set. Many properties and a lot of land has been acquired.
The Third Schedule lists the potential pollution grounds which will be non-compensatable. These include air, water and waste pollution. There is no reference, however, to noise or odour pollution. Furthermore, there is no reference to airwave pollution, a possible radioactive type of pollution such as emanates from locations such as the Radio Tara broadcasting station in my own constituency. Under what heading would the Minister place developments such as these? This is another area which has been excluded and it is quite evident from all the to-ing and fro-ing in connection with planning applications and appeals to an Bord Pleanála that there can be this type of pollution. There is no reference in the Bill to blast pollution or the damage that can be caused to property in areas adjacent to mining developments. Again, I can say from experience, in respect of Tara Mines in my own constitutency, that the effects of blasting can have a devastating impact on the environment and can affect every home in the locality of a mining development.
Many of these provisions appear to be cosmetic exercises which are riddled with loopholes. They appear to be a public relations exercise for speculators' interests with inbuilt design flaws which will ensure that at the end of the day the traditional sweetheart relationship between Fianna Fáil and the property speculators will continue to flourish.
This brings me to the third main area of concern — the sins of omission, the missed opportunities, the nettles not grasped which are conspicuous by their absence from the terms of this legislation. The Minister claimed that his Bill is a coherent and comprehensive response to the problem of planning compensation. The Bill, however, does not include a comprehensive satisfactory approach to the enormous problem of unfinished housing estates and the ongoing problems local authorities face in this area. Those of us who operate advice centres, and I am sure the majority of Members in this House, know of many people who purchased their homes in good faith and subsequently faced serious problems with roads, footpaths and lighting, etc. and so on which remained unfinished. I would have thought that in a Bill such as this which relates to planning — we have not had a Bill such as this since 1963 — that we should have tackled this issue given our experience and that of local authorities in respect of unfinished estates and given the problems experienced by those who bought their homes in good faith and who paid for these services and amenities.
The Bill does not allow for inspection of standards by local authority officials of estates on an early or regular basis during the lifetime of their construction. I believe that if such a measure was introduced in the Bill substantial amounts of money and time would be saved by local authorities in the long term. Local authorities grant planning permission for houses and other developments. If any particular development happens to obstruct the view or overlook the back garden of a third party that party has no redress in these circumstances and this issue should have been addressed in any new legislation introduced. We all know of cases where permission has been granted for developments which blocked off the light to the backs of homes of third parties. I believe that if we earnestly wish to solve all of the problems in regard to compensation we should also try to solve this problem.
This legislation will lead to a high demand on the financial resources of local authorities over the next few years because it fails to deal satisfactorily with the global issue of compensation. For instance, An Bord Pleanála occasionally overturn decisions made by local authorities. They may impose conditions or give grounds which appear initially to be non-compensatable but if, ultimately, compensation has to be made because of their decisions I believe that An Bord Pleanála should be held responsible for an element of such compensation. Again, we are all aware of decisions which county councils have made and which were appealed to An Bord Pleanála who in their view made a right decision. The effect of those decisions may be that local authorities have to pay compensation and I believe that An Bord Pleanála, where compensation is to be paid, should pay part of that compensation.
The question in regard to natural scenic areas and beauty spots has not been satisfactorily addressed in this Bill. These areas are of enormous benefit to our tourism industry and the sterilisation of such areas in planning terms should be compatible under a specific charter of compensation. I have not seen any evidence of ministerial thought being applied to this issue. What I would like to see done, and I believe this should have been addressed in this Bill, is that if any tourist amenity is purchased by a local authority the going rate will be paid along with a certain percentage in compensation and this to be included in the legislation. In other words, people would not be able to hold out for enormous amounts of money and, again, this would save considerable time and money. I honestly believe that this issue should have been addressed in the Bill.
In conclusion, I wish to make it clear that I do not agree with the Minister's view that this Bill is a coherent and comprehensive response to the problems of planning compensation. I believe that the Bill, if enacted, will be open to constitutional challenge. Indeed, although he may not wish to declare it publicly I believe deep down the Minister holds the same view. As the Minister seems to think the Bill does not consolidate all the laws of planning into one text. Instead the Minister is running like a ship in full sail, without an anchor, before the huffing and puffing of the speculator lobby. Unfortunately, that appears to be the case. He has offered us a Bill which is constitutionally suspect, flawed in its legislative provisions and wasteful in that it fails to bring about the radical reforms in planning which are required as we face the 21st century.
Unfortunately, for the reasons I have given and because of the party he represents I do not trust the Minister when it comes to planning matters. It is like having cats in charge of creameries. That is the way it looks at this stage because all of the areas I have referred to have been left open. What I am saying is that if the Minister has any worries he should ask the President to refer this Bill under Article 26.1.1º to the Supreme Court so that once and for all we will know whether it will stand up to constitutional challenge.
He has that option on every Bill.
After I had been appointed as junior spokesman on the environment recently a constituent of mine said to me that as a taxpayer you always know where you stand with a Fianna Fáil Government when it comes to the environment — you stand to lose out. That was not said lightly by the person involved who has a big interest in local affairs. Taking into account it is now almost 30 years since a similar Bill was introduced in this House, I believe we have only gone a portion of the way in solving the large problems which exist. The local authority of which I am a member yesterday spent between six and seven hours dealing with the development plan. Various points of view were expressed as to why we did not further develop particular portions of land long before we had the money to provide services and long before we drew up a comprehensive plan.
A particular point of view was pushed by some members of the Government party and this led me to believe that we should zone it and accept the consequences. We spent a lot of time in trying to ensure that before we rezoned land we would see if we had a substantial amount of land available, already zoned, for the building of houses and other property. We did not zone any more because we did not want to end up in the question that in addition to the applications which had been around for the last number of years we would have a considerable numbers of extra applications for compensation.
The Bill does not deal with the areas with which all of us have problems. It is a planning and development Bill and in fairness it should have covered all the aspects and areas I have mentioned. If we were doing our job properly, and even though it may have taken us a number of months to put the Bill through the House, as a member of a local authority for the past 14 years I believe we should have spent a lot more time debating the Bill and that it should have included the wider areas I have mentioned. Because it does not include those wider areas we may not get a chance for quite some time to introduce the types of safeguards in the other areas of planning which have caused problems for every local authority that we should have introduced. The Bill has failed in this regard and it does not deal with the problems in the compensation area. The Minister said tonight that he did not mention the word "constitutionality" in his speech but he mentioned it on page 17 of his script. It is evident that he does not believe in this aspect of the Bill and I suggest that this is one of the aspects that should be dealt with in this legislation.
I suppose I am showing my inexperience in this House by rising to the bait and departing from what I wanted to say but the previous speaker, Deputy Farrelly, has pushed me into this situation. Towards the end of what was a fairly positive contribution he came out with the same snide remarks about the taxpayers and the Fianna Fáil Government and he went on to tell us about the continuation of the collusion between land speculators and the Fianna Fáil Government. If such a horrible threat exists to the community — and it is there — all I can do is ask why did Deputy Farrelly, Deputy Quinn and all the other highly articulate people we have heard so far not take care of it during the past four years? If it is such a great threat and so obvious why was legislation not brought forward to deal with it? There is a fairly obvious answer to that question but as I said, maybe I am rising to the bait.
I listened on the monitor to some of Deputy Quinn's contribution earlier on tonight and I want to refer to some of his remarks. He made a highly personalised attack on the Taoiseach and then tried to suggest immediately that he would never personalise politics. I know there are some who like a contradition but he went on further to claim that he was not playing to the gallery because the gallery was empty. I believe that added stupidity to insult and I am very glad I have heard only very few examples of such gross bad manners in this House since I came here. I am amazed at the behaviour of such an experienced Deputy. That kind of conduct and behaviour does nothing whatsoever either for him or for the name of this House.
I should like to refer to an issue which was mentioned earlier in the week. Deputy Shatter made the case for regional planning and he pointed to the fact that Dublin Corporation, Dublin County Council and Dún Laoghaire Corporation are working in isolation in preparing their development plans. I think this is a weakness in their approach and I would have to advocate the desirability of having a more co-ordinated approach in that part of the country. I do not know if this is one of the factors which has led to the situation whereby practically all of the claims for compensation are in the Dublin area.
What upset me is that the Deputy went on to instance the Cork situation as being the same. I must say to the Deputy that normally I am reluctant to be parochial but I think I can speak with a fair degree of knowledge of the Cork situation, having been a member of Cork City Council for the past 14 years and being the present chairman of the planning committee. There is a joint city-county committee in the Cork area who look at overlapping features with regard to planning, major infrastructural plans, etc. This is a practical and sensible approach and is one that should be followed by all councils. This has led to the situation whereby a section 4 proposal under the Planning Act has never been put forward during my 14 years on the city council. I believe this is partly because of the systematic approach taken and the co-ordination of the effort between management and members of the city council.
Deputy Farrelly said that they were preparing their development plan yesterday but I would point out that this process goes on for a lengthy period in the Cork area. For instance, the process whereby the plan which must be reviewed next year will shortly start and daylong seminars will be held on Saturdays. That has been the practice over the years and has allowed us to tease out in a very minute fashion the implications of planning in the neighbouring local authority, Cork County Council, to get the views of planning officials, the city manager and his staff and also to put forward the arguments and views of the city councillors. One of their chief functions is to review the five-year development plan, an exercise which I believe is not taken seriously enough in many areas of the country. In many cases there may be degrees of conflict between what the management want and what the local councillors want and this friction can be shown by section 4 proposals being put forward or in compensation cases where there is some degree of ambiguity between the approaches of the two groups.
Speaking with my local government hat on, I believe we need to look very carefully at this process and to exercise more care with it. While there are weaknesses in it — and very often we have questioned the powers of An Bord Pleanála, for instance, vis-à-vis the statutory five-year development plan — we can bring these points forward during the debate and ask the Minister to take note of them. In some areas more work should go into the preparation of the five-year plan and while I have never had the big stick waved at me by the management side of the threat of claims for compensation — I certainly cannot remember any specific cases — I know that this exists in many areas. This should not exist because local government members should be free to make a plan and implement it during the five-year life of that plan without such a threat hanging over them.
The Bill has been described by the Minister and various contributors as a complex one and I believe this is correct. One has only to re-read the 1963 Act — and every time one reads it one can get a different interpretation from it — to understand just how complex the whole area is. The interpretation by the court in at least one case under the 1963 Act would be totally contrary to what most of us would have taken from the Act on our first reading of it.
I am delighted that the Minister will welcome all constructive suggestions for improving the Bill on Committee Stage. There probably will be many issues raised that he will not deal with in connection with this Bill, but we would like them discussed at some length. Some of these matters have been mentioned, such as delays and failures in regard to the completion of estates and the fact that failure to complete one estate in an area cannot disqualify the developer from getting permission under another application. Many have argued over the years that this should be a factor in deciding on a planning application. At present it cannot be taken into consideration but it should be. Will the Minister of State take note of that point and consider it in future legislation? In unfinished estates the ordinary citizen is very often left to walk through mud, if not something else. The public cannot understand it, nor can the local representatives. We could put a hold on the developer to prevent any further developments until completion of the initial estate.
The important question with which we are dealing here is that of compensation. The public perception is that in most cases compensation should not be paid, and that goes for many cited cases. There is pressure on planners in particular because of the threat of having to pay such compensation. Figures have been given comparing the claims with the amounts actually paid, but the underlying threat exists. The Minister is dealing with it in this Bill. There is no doubt whatsoever in the mind of anybody who is in any way involved that there is need for greater weight to be given to the common interest and greater protection to be given to planning authorities in the face of compensation claims or threats. All these matters will have to be addressed and it is hoped that eventually there will be a Bill which will help to improve the situation generally in the context of local planning.
Deputy Quinn said at the end of his contribution that the Minister has gone three-quarters of the way to meeting what needed to be done. I am assuming that the other quarter refers to the question of testing the constitutionality of the section to which we referred earlier. The Constitution will be a difficulty with almost all legislation. Several times in the House I have questioned the reason for lengthy delays in preparing and bringing forward legislation like this, but having studied recent decisions of the Judiciary in relation to cases brought under the existing Planning Acts and similar legislation, I can now see why such great care must be taken in preparing and publishing such legislation. A serious difficulty is that in their interpretation of the wording of an Act the Judiciary do not seem to make any allowance for the actual objectives of the legislation. This was very obvious in a range of cases relating to local government and other areas.
Regardless of what is or is not contained in this Bill when completed, it will be only a matter of days before these High Court legal teams will be gnawing away at it and trying to find loopholes in the wording of the Bill in an attempt to find a reason why individuals should be able to circumvent the wishes of the Oireachtas. I made a point during a special debate that there should be some mechanism for conveying the wishes of the Oireachtas to the Judiciary and more liaison to allow for those wishes to be reflected in decisions. I accept totally that we have an independent Judiciary but we are here to legislate for the common good of the people and there is need for our views to be reflected in decisions. Some decisions that I have studied over the past eight or nine years in the context of the debate that I have mentioned shocked me — the cost to the State, the interpretation which seemed to be totally contradictory to the wishes of the Oireachtas, and so on.
The Minister must look for a balance between control of the land and the environment and at the same time allow for normal commercial activities which would require planning permission from local authorities. It is also necessary to take account of the Constitution regardless of the arguments of the two Members in the House who would happily ignore that Constitution. The Constitution is our guide book and must be taken into consideration.
Much play has been made in the past few months about not interfering with normal commercial activities in the industrial field, about PRSI, extra cost to developers and so on, and that we should be encouraging these people. Members should show some consistency throughout their arguments and that being the case, many will welcome the Bill for the balance achieved by the Minister. I hope that when the Bill is completed more people will be satisfied with it.
I am worried about the stance taken at this early stage by some contributors who say that they will vote against the Bill regardless of any changes which might be incorporated in it. That signals a very negative attitude, to put it very mildly. The Minister has his job and his advisers. He is looking for a balance. Many of us have received copies of the IPI submission and one factor argued in this is the basis for compensation. I hope that the Minister has taken this into consideration in his preparation of the Bill. It seemed crazy that the original decisions of the court, rather than interpreting the original Act, took into account that somebody could be at a loss, because of investment or various other matters, because of being refused planning permission. The decision maximised the loss of potential profit for development of the site. That decision led to an award of £2 million to Grange Development. That land has been zoned as partly industrial and partly agricultural/amenity, in other words, it was a green belt development. I would be very much against the idea of doing away with compensation in toto. In normal commercial activities there is a need for compensation in certain areas.
Debate adjourned.