Dáil Éireann díospóireacht -
Wednesday, 21 Feb 1990

Vol. 396 No. 1

Private Members' Business. - Local Government (Planning and Development) (No. 2) Bill, 1988:Committee Stage (Resumed).

SECOND SCHEDULE.

Debate resumed on amendment No. 62:

In page 17, between lines 27 and 28, to insert the following paragraph:

"2. Any development that is in material contravention of the development plan, adopted under Part III of the Principal Act.".

—(Deputy Gilmore.)

Mr. Gilmore

A number of amendments are being taken with amendment No. 62. These amendments deal with whether or not compensation should be paid in cases where a development contravenes a development plan. Amendment No. 62 proposes the insertion of a paragraph which would provide that any development which is in material contravention of a development plan would not be eligible for the payment of planning compensation.

As I see it, the Minister's position under the original Bill has now been modified. It seems the Minister is saying that planning compensation will not be paid if a development contravenes a development plan but with a number of provisos. This is what I am worried about. The first proviso is that if a development complies with the development plan at any time within the five years previously it will be eligible for compensation. There is a further proviso to that which relates to the point in time when a person acquires their interest in the land. While this improves the position under the original Bill, which provided that land acquired after 20 October 1988 would not come under the scope of this Bill in so far as eligibility arising from a refusal because of a contravention of a development plan was concerned, it also leaves it open to some escape.

The principal escape I see is in section 11 (b) which deals with the situation where a person acquired his interest in the land after notice had been published about possible variations of the development plan. I have put down a separate amendment to this which is a fall back if the Minister is not prepared to accept my first amendment which proposes that where a development contravenes a development plan there should not be a payment of compensation. I believe there are very good reasons for this.

The development plan is the principal democratic instrument used to decide on the planning and development of an area. The adoption of a development plan involves the elected representatives of the local authority and the public; it is on public display, it is a procedure which can last in some cases for a number of years and it is where the public come together to decide the planning priorities, and the zoning and development objectives of their area. If a developer can claim compensation because planning permission has been refused which would contravene that development plan that process will be undermined. There are very good reasons why a development plan and the process which leads up to its adoption should be strengthened. There should not be any circumstances in which somebody can claim compensation because a development contravenes a development plan. I have also put down an amendment to the Minister's amendment with which I will deal with after I have heard the Minister's views.

Mr. Quinn

I support what Deputy Gilmore has said. I would confine such contraventions to those which had been obtained by way of section 4 in order to bring it back into line with the amendment which I tabled but which was ruled out of order. It is possible that developments could be granted by way of material contravention which had general planning support. In view of what Deputy Gilmore has said about such planning developments so obtained not being eligible for compensation, even the requirement under section 4 is an addition which may not be necessary.

The point being made is that there are far too many contraventions of development plans going on at present. Dublin County Council, who have been referred to earlier, are an absolute disgrace in terms of the way their development plan is being written every day. I urge the Minister to give serious consideration to the merits of this amendment.

Minister for the Environment (Mr. Flynn)

This amendment proposes to replace paragraph 9 of the Third Schedule as it was originally circulated. This is one of the most important provisions in the Bill and is the most publicised one. The earlier paragraph 9 would have prevented access to planning compensation only where an applicant's interest in land was acquired after 20 October 1988, the date of publication of the Bill, and where the proposed development would have materially contravened a development objective which also applied to the land at the time it was acquired by the applicant. The earlier paragraph 9 also made exception for future land acquisitions arising through inheritance or family settlement. The restriction on planning compensation proposed by the earlier paragraph 9 was therefore limited in three ways. First, it could only apply to persons who acquired their interest in land after 20 October 1988. Second, it could only apply in so far as the development objective relating to the land remained the same between the time the land was acquired and the time the planning decision was made. Third, it had to be waived for inheritance and family settlement cases.

The new provisions will have much wider scope. The amendment in principle will apply to all landowners and it establishes the general rule that refusal of development which would contravene a current zoning objective will be non-compensatable. However, the absolute application of this principle will create a position where planning authorities could in theory at least arbitrarily change the zoning of land without having regard to the financial implications for landowners who might have made a recent investment on the basis of an entirely different zoning.

I do not believe for one moment that planning authorities would wish to procure such unjust consequences. Equally, I do not think that the legislation should leave open the possibility of such consequences and for this reason the amendment embodies the safeguard that compensation will not be excluded on zoning grounds where, first, the land had a zoning in the previous five years with which the development proposal would have been compatible and, second, the person claiming compensation acquired his land interest before the new restrictive zoning came into operation or was formally notified in draft by the planning authority. Both of these conditions have, of course, to obtain together.

The amendment, therefore, upholds the general principle that developers should not be able to press for compensation where development would contravene current zoning. It makes exception in only one circumstance for landowners whose lands have been zoned, that is, from development to nondevelopment zoning. The amendment deals with this matter, as I said, with a view to checking any possibility of the unfair use of this provision in the future. It will also provide a very substantial and comprehensive defence for planning authorities against compensation claims. Taken together with the improved provisions the Bill is making in many other areas, it should greatly strengthen the position of planning authorities in administering planning control.

Deputy Gilmore's amendment No. 62, would give effect to the principle that contravention of current zoning should exclude compensation but without the qualification contained in amendment No. 73. As I have explained, this would leave the way open to arbitrary action by the planning authorities which we should not even in principle comtemplate.

It would be open to a planning authority, for example, to rezone for amenity or an open space, a site previously zoned commercial in which a developer might have made a substantial investment in assembling. Changes in zoning are not subject to any statutory check by the Minister for the Environment. The developer could in this way be refused planning permission for his project without compensation even though the development plan was giving a strong signal only a short time previously that the planning authority favoured a commercial development on the land. It is this and only this circumstance for which my amendment makes exception. I consider this exception to be both reasonable and necessary. I could not, accordingly, accept amendments Nos. 1 and 2 to amendment No.73 which have exactly the same purpose.

Amendment No. 3 to amendment No. 73 seeks to go behind the publication of a draft development plan or a draft variation. It refers instead to a development objective being indicated in draft in a review of the development plan or in consideration of a proposed variation. There is no formal procedure, however, for indicating a new development objective at these stages.

Section 21 of the 1963 Act sets out the procedure for communicating draft plans or variations to the public and paragraph 10 to the Third Schedule can only be based on this. It is for that reason that I ask Deputy Gilmore and those who have an interest in this matter to recognise the one circumstance, which I have made public and have now reiterated, where a claim for compensation can be enterained in a fair and equitable way.

Mr. Gilmore

I would like to refer to a number of the points made by the Minister. First, he used the word "arbitrary" on several occasions when speaking about the possibility of a local authority down zoning land. It is my experience that the development plan process is far from arbitrary. There is probably no other procedure in the affairs of this country which is as open to the public takes as long to carry out, or has as many safeguards built in as the procedure leading to the adoption or variation of a development plan. The Minister will be aware that some local authorities take years to review their development plan. They go over it again and again with their planners before even publishing a draft. Following this the public are given the opportunity to comment on it. It then goes back to the council but there is always the possibility that it could go back to the public before eventually being adopted.

Under that procedure any person faced with the possibility that their land in which they have invested their money could be down zoned has the right to make their case to the local authority that this was an unreasonable proposal. My experience in local government, short though it may be, is that a submission of that kind would most likely find favour with the local authority concerned. It is also my experience that the views expressed by landowners invariably find favour with the authority concerned. What the Minister is concerned about is something I do not see arising in practice. In any event there are considerable safeguards built into the development plan process which would protect against it.

The Minister has to be complimented on taking on board the criticisms of the original version of this part of the Bill relating to the 20 October 1988 deadline and on going some of the way towards meeting the criticisms.

In relation to the Minister's amendment No. 73, I have already talked about the situation where the zoning would have been changed in the five years prior to the making of the application. I would like to deal, for a minute, with my own amendment No. 3. Under the Minister's proposal the acquisition of interest in the land would take place after a notice has been published in accordance with section 21 of the 1963 Act of a proposed new development plan or proposed variations of a development plan indicating in draft the development objective referred to in paragraph 9. As I understand it — perhaps the Minister can correct me — what the Minister intends there is that that would be the point at which the draft development plan goes out to the public. I do not think that that should be the cut-off date for the acquisition of interest in the land because what happens in practice is that the review of the development plan may be going on for two or three years before the publication of the draft. The zoning intentions of the local authority would be well known, particularly to members of the local authority, and perhaps fairly well known outside it, long before the draft development plan could actually be published. One could have a situation where somebody would acquire an interest in the land knowing full well that there was to be a rezoning of the land. Dublin City Development Plan is going on for the last four years; the review of Dublin County Development Plan is going on over two years now. There could be somebody who is aware that there is a view in the local authority that a particular parcel of land is going to be zoned in a particular way, who would anticipate that and purchase the land and qualify for compensation under paragraph 10 because they had acquired the land at a time when different zoning had existed within the five years prior to their application being made.

The reason, therefore, that I have proposed amendment No. 3 is to prevent that arising and to make the cut-off date the point at which the review of the development plan takes place. There will, however, be no need to get into the tortuous area of dates and limitations and all of that if the Minister were to accept amendment No. 62 which is reasonable. A lot of concern had been expressed that development plans are being systematically undermined. Deputy Quinn talked about the situation on Dublin County Council, and we talked about it here earlier today, where repeatedly there are material contraventions to the County Dublin Development Plan. Repeatedly members of the public wonder what is the point at all of having a development plan if planning permissions can be granted which contravene it. We talked about arbitrary decisions. The only arbitrary decisions that I have come across are decisions made by the members of local authorities who decide to materially contravene development plans. They are the arbitrary decisions that take place. The arbitrary decisions are going in the opposite direction to the direction the Minister anticipates.

I would again, at the eleventh hour, appeal to the Minister to reconsider this situation. The development plan has to be underpinned and secured. If we allow a situation, albeit in the limited circumstances that the Minister is talking about, in which a refusal of permission, where the development would contravene the development plan, will open the door to compensation, that will have the effect of undermining development plans. The people who have found so many holes in the existing legislation on planning compensation may well find the same in relation to this.

Mrs. Owen

I speak in the absence of Deputy Shatter who will be back. I have a certain sympathy for his amendment. There is no doubt that if this Bill is to operate as effectively as we would all like, we will have to get to grips with the great numbers of material contraventions, particularly in the Dublin region — and that is understandable because that is where most of the development is going on. There has been a series of material contraventions some, quite acceptable, but the vast bulk of them making major changes to a plan that we are about to put on display in the next six to nine months so that the public will have a chance to decide if they themselves would like to see changes in the plan.

I want to refer to something that Deputy Quinn said, although I think he changed his mind before he sat down. He said that he would like to include any section 4 development. That would not really cover the problem we have certainly in Dublin County Council because at the moment a material contravention of the plan can be processed without going next or near the section 4 mechanism. It can be processed at what we call the district committees where a councillor or councillors on a district committee can decide by a simple majority to ask the manager to proceed with a material contravention process, put the advertisement in the paper etc., and it does not have to go through the section 4 process. Once this action is taken at local level the advertisement goes in the paper and the first opportunity the rest of the councillors from throughout the county get to deliberate on that material contravention is when it actually comes up for a vote at the council.

The other snag in confining this to section 4 is that a section 4 motion can be tabled and again the manager is obliged, under the Act, to immediately implement the material contravention process, so a vote is not taken on whether the section 4 should proceed before we get to talk to him about it; the advertisement has already gone into the paper and the procedure has already started. The section 4 process is just a way, if one thinks one will not get it through the local committee, to get it through. In my experience of ten years on Dublin County Council, most of the material contraventions have come from the local committees and not through the section 4 process.

Having listened to the Minister I would have thought that this amendment was one that would copperfasten what the Minister is doing, and I would have thought that it is not in conflict with anything else in the Bill and that it would actually do what we want it to do, that is to prevent, through political patronage, somebody getting planning permission because he happens to have a majority on a local authority. I would have thought that this would have just endorsed and copperfastened the Minister's many good amendments in other areas, such as getting rid of the October 20 date, etc.

We discussed this under section 5 when Deputy Gilmore's earlier amendment was in and all of us accused him perhaps of trying to get rid of the concept of compensation where somebody has been unfairly rezoned. I thought that at that stage the Minister assured us that that mechanism still existed in the Bill. I cannot see how this amendment would remove that. The Minister might clarify this for me again as I am not quite as familiar with the process of the Bill as some of the other Deputies; I was not in the House when the Second Stage went through and have only had a chance to read through the speeches recently. This amendment would copperfasten the Minister's intentions and would not rule out compensation in the few instances where the county council would decide to rezone land or take some land for some other kind of development that was less beneficial to an owner than the zoning which it had when he bought it. I am inclined to think the Minister is looking too far into this amendment and maybe getting a meaning out of it that is not intended. If I understand Deputy Gilmore, he is trying, as we all are, to stop the haemorrhage of material contraventions which are making an ass of all development plans. Coming near the end of the life of a development plan there is always a flurry to get in material contraventions because people feel they will have to wait for a process of a year or two years to get their new zoning in.

With regard to Deputy Gilmore's other amendment and the commencement of the development plan procedures, I am not so sympathetic in the sense that in Dublin certainly it took nearly five years to review the last development plan. At the rate we are going on this one, it may well take the guts of another five years to review it. The mechanism of having 78 councillors on Dublin County Council and all of us wanting our say on almost every item on the reports we get will mean it will take a very long time. Other sections of the Bill would probably prevent somebody claiming compensation if the person acquired the land even in the early stages of the process just because he or she got a hint from someone that it might be rezoned. So far we have not much indication of any rezonings the manager is recommending but we do not know what councillors might recommend.

I would like the Minister to tell us why he says amendment No. 62 would rule out the possibility of somebody whose land was rezoned getting compensation. That is the kernel of what I would like clarified before we come to a decision on this. If it rules out the possibility of people getting compensation because their land is rezoned, we do not want to do that in this Bill. I do not think Deputy Gilmore necessarily wants to deprive somebody of the benefit of land bought at a certain zoning which is then rezoned. We had this argument previously on another section. I do not believe this amendment is doing that.

Progress reported: Committee to sit again.