Dáil Éireann díospóireacht -
Thursday, 9 Jul 1992

Vol. 422 No. 5

Local Government (Planning and Development) Bill, 1991: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

Minister for the Environment (Mr. Smith)

I move: "That the Committee agree with the Seanad in amendment No. 1:

Section 19: In page 15, between lines 10 and 11, the following subsections inserted:

"(1) (a) Section 31 (1) of the Principal Act is hereby amended by the addition of the following paragraph after paragraph (b):

`(c) A notice referred to in paragraph (b) of this subsection shall not be served after—

(i) if the permission to which the condition is attached is a permission other than of the kind referred to in subparagraph (ii) of this paragraph, the date of the expiration, as respects the permission, of the appropriate period (within the meaning of section 2 of the Local Government (Planning and Development) Act, 1982) or, as the case may be, of the said period as extended under section 4 of the said Act,

(ii) if the permission to which the condition is attached is a permission for the retention on land of any structure, the expiration of a period of five years beginning on the day of the grant of the permission.'.

(b) Section 32 (1) of the Principal Act is hereby amended by the addition of the following paragraph after paragraph (b):

`(c) A notice referred to in paragraph (b) of this subsection shall not be served after the expiration of a period of five years beginning on the day of the grant of the permission referred to in paragraph (a) of this subsection.'.

(c) This subsection shall have effect as respects a condition referred to in section 31 or 32 of the Principal Act which is not complied with before or after the commencement of this subsection.

(2) (a) Section 35 of the Principal Act is hereby amended by the addition of the following subsection after subsection (9):

`(10) An enforcement notice shall not be served in relation to any development authorised by a permission granted under this Part of this Act which has been commenced but has not been carried out in conformity with such permission after the expiration of a period of five years beginning on the expiration, as respects such permission, of the appropriate period (within the meaning of section 2 of the Local Government (Planning and Development) Act, 1982) or, as the case may be, of the said period as extended under section 4 of the said Act.'.

(b) This subsection shall have effect as respects development referred to in the subsection inserted in section 35 of the Principal Act by paragraph (a) which is carried out before or after the commencement of this subsection.".

I want to thank the Whips of all the political parties for their co-operation in facilitating me in getting time, despite the pressure of business, to conclude these amendments to the Bill.

These amendments are concerned with two matters. In the first place they seek to bring about greater uniformity and consistency in relation to the time within which enforcement action may be taken by planning authorities by putting a time limit on the use of those powers which are open-ended at present.

Secondly, the warning notice procedure under section 26 of the Local Government (Planning and Development) Act, 1976, will be strengthened by allowing a planning authority to serve a notice where they believe that an unauthorised use is likely to be made of land. At the moment a warning notice can be served in relation to unauthorised use only where the use is actually taking place. Looking first at time limits for enforcement action, I should say initially that these proposals take account of the desire underlying an amendment which Deputy Brendan Howlin put forward when the Bill was before the Dáil, that it should not be possible to challenge a development's validity after an unduly long time. I had hoped to bring forward amendments on the matter when the Bill was before the Dáil but it was not possible to finalise them in time.

I would like to explain that certain powers which planning authorities can use against unauthorised development or development which does not conform to the terms of relevant planning permission are already subject to a time limit. For example, an enforcement notice under section 31 of the Local Government (Planning and Development) Act, 1963, can be served against an unauthorised development only within five years of the carrying out of that development. However, other enforcement powers such as the application to the High Court for an order under section 27 of the 1976 Act are not subject to any time limitations. There is no doubt that the open-ended nature of some of the enforcement powers gives rise to serious practical difficulties, particularly in the area of property transactions. This led the Law Reform Commission to recommend in their report on land law and conveyancing law that a five-year limit should be put on the bringing of applications for court orders under section 27 of the 1976 Act. These amendments propose that the five-year limit currently applicable to some of the enforcement powers will be extended to the open-ended power. I believe this will bring about greater clarity and consistency. I am satisfied also that this will not adversely affect the ability of planning authorities to police the proper planning and development of their areas if an unauthorised or non-conforming development or use has not come to attention or been the subject of enforcement action within five years. It is most unlikely to be problematical from the point of view of the proper planning and development of the location concerned.

I should add that it is my intention that these new time limits generally will not come into operation until the start of 1994, so that the planning authorities can take action in the intervening period in relation to any long-standing planning infringement of which they may be aware or which is brought to their attention before then.

As for the proposed strengthening of section 26 of the 1976 Act, the present position is that a planning authority can serve a warning notice where it appears to them that unauthorised development of land is likely to take place. However, they can serve a notice in the case of an unauthorised use of land only if the use is actually occurring. The amendment will change matters by also allowing a notice to be served where the authority consider that an unauthorised use is likely to be made of land.

Amendment No. 1 will put a five year limitation running from the expiration of the planning permission and the time within which a notice under section 35 of the 1963 Act can be served where development has not been carried out in conformity with the permission. This amendment also proposes related changes to the existing time limits under sections 31 and 32 of the 1963 Planning Act for taking action against development which does not comply with the terms of a condition attached to a planning permission. The current formulation of the time limit in those sections means that they are effectively open-ended so far as conditions are concerned.

Amendment No. 2 is a minor consequential drafting change arising from these other amendments. Amendment No. 3 proposes that it will be possible to serve a warning notice under section 26 of the 1976 Planning Act in relation to unauthorised use of land only within five years of when the unauthorised use first commenced. Amendment No. 4 will place a time limit of five years on applications to the courts for orders under section 27 of the 1976 Act.

Mr. Howlin

I welcome these amendments which, as the Minister said, are in response to an amendment I tabled on Committee Stage when it was a cause of concern to me, and my party, that there was an open-ended provision for enforcement orders by local authorities for unauthorised developments. This meant that great difficulty was being experienced by persons wishing to buy or sell property to obtain clarification that there was no problem with planning permission. As each year passed since the original planning Acts those difficulties were being compounded.

I originally sought to have a 12 year limit. The Minister has introduced a much shorter limit today justified, no doubt, by the recommendations of the Law Reform Commission and also his wish to dovetail limits so that there would be uniformity and there is certain merit in that. I hope the Minister has not gone too far by reducing the limit to five years. Certainly a limit was required and I had hoped that my suggestion of a 12 year timescale would have been adequate to provide sufficient scope for local authorities to police planning applications and any unauthorised developments and, at the same time, enable people buying and selling property to prove that they complied fully with the planning requirements without resorting to exorbitant expense or facing insurmountable difficulties. I do not oppose the suggestion put forward by the Minister. I welcome the fact that he kept to his commitment to me that he would reconsider the amendment despite the fact that it was not formally moved in the House due to the guillotine imposed on our debating time.

I wish to raise two further related matters. One issue which causes me and many people concern in relation to planning is the use of the retention mechanisms by developers who seek to circumvent proper planning by building without authority and then applying retrospectively for retention. This feature is all too prevalent in planning authorities across the country. Unfortunately, the embargo on staff recruitment to local authorities over recent years has meant that every Department, but particularly planning, has suffered. Thankfully in my own local authority there has been a huge growth in planning applications which is a sign of development and growth but, unfortunately, there has been a reduction in the staff available to process those applications. On 1 June last new planning regulations were introduced which are very complex and comprehensive. As we introduce more regulations, more legislation and as we move toward closer integration within the European Community, additional powers will be devolved to local planning authorities who will require staff and resources. It is unfair to expect planning personnel in many counties to come in early, work overtime and through weekends in order to meet the statutory deadlines involved in determining planning applications. I have no doubt that even the most enthusiastic, dedicated and willing public servants at local level will frequently be required to take short cuts in relation to the full investigation of planning applications if they are to comply with the statutory limits we are imposing upon local authorities.

I welcome the changes that are being put to the House. I am cautious, however, about the proposed five year limit rather than my suggestion of 12 years but I accept the principle that there should be a finite time in which enforcement orders require to be acted upon. I urge the Minister to examine the staffing problem in all planning departments. Proper planning is an absolute essential in relation to the future development of our country. We are now environmentally sensitive and aware. Most planning authorities have produced plans of the type of developments they require and are trying to meet the needs of people who wish to discuss proper developments with them. However, they do not have the time, the resources or the facilities to discuss developments and proposed plans with people in advance of the submission of planning applications. That is a mistake.

I urge the Minister to consider the possibility of establishing planning clinics, an issue that I raised during the debate on this Bill, and authorise and staff a facility in planning authorities for citizens making planning applications to discuss those applications and their implications with professional staff in advance of submitting them and before being required to pay a fee. This would save a great deal of bother and, ultimately, much expense. I thank the Minister for remaining true to his word in accepting the spirit of the amendment tabled by me on Committee Stage, sending it to the Seanad and returning it to this House.

Miss Flaherty

I will try to be brief. These amendments to the principal Local Government (Planning and Development) Act, 1963 and the 1976 Act are broadly welcome. Deputy Howlin has dealt with the first amendment which introduces the five year limit in relation to actions taken under the powers in these Acts. I share his concern about the limit not being sufficiently long. Unfortunately, due to my late arrival, I did not have time to read the Law Reform Commission's report on this issue. In Finglas, which has both new and old developments, we have a very old industrial estate containing buildings that have stood for quite a long time. It is only as time passes that we realise some of the difficulties we have with developments there.

The fact that the implementation date is being deferred until 1994 will allow a reasonable time, provided local authorities are aware that there is a need for a thorough review of all outstanding actions or potential actions which they may wish to bring forward in advance. It will also put pressure on them to be more professional and efficient and to realise that they must act within a reasonable time. I welcome the other substantial amendment which ensures that they may act in anticipation of an authorised development. It can become very difficult if one has to wait until a problem arises before taking action, when all the indications are that one is heading for a problem. For example, it had been publicised in our area that a snooker hall was being developed and, until it was actually commenced, we could not initiate the proceedings to close it down. This development was to take place at my parents' back door and was very close to the house of the Leas-Cheann Comhairle's sister in what had been a quiet industrial estate. This provision will be a welcome additional power.

By and large we are happy with these amendments. We need to watch how the five year rule operates in practice. If the Planning Acts are to operate efficiently, one of the most important requirements is that they protect people. People should have sufficient information on what is being proposed in their areas because they are the best policers of the good development of their area. While I gather the Minister did not accept the Fine Gael amendment in relation to notices on adjoining properties, this is the single most important concession to give to people. I understand he has indicated a willingness to do that by means of regulation. That is something that will greatly improve the application of the Planning Acts.

An Leas-Cheann Comhairle

I invite Deputy Garland to a two minute nugget.

Mr. Garland

I am extremely unhappy with the three main amendments. I accept there must be some time limit but I do not agree that it should be five years; rather it should be 12 years, in spite of what the Law Reform Commission said. On balance, in view of the huge difference between five and 12 years, it would be much better to leave the Bill as it is. This Bill is being described as a retentionist charter. The Bill failed to address the problem of retention. I feel the question of retention will become considerably worse, because amendment No. 1 (a) (ii) states:

... the expiration of a period of five years beginning on the day of the grant of the permission.

The Minister is aware that planning permission does not have to be taken up for a period of five years. Surely, whatever time limit is to be imposed under this section should run from the date of completion, not from the date of the grant of planning permission. If this requires a register of completions to be commenced by local authorities to record when planning permissions are actually completed, then so be it. To make it five years from the granting of planning permission is a nonsense.

Mr. Smith

I thank Deputy Howlin and Deputy Flaherty for their strong support for these amendments. In regard to retention of planning permission, clearly it is a provision we should retain and I am sure we do not disagree on that point. People can from time to time inadvertently carry out development for one reason or another and we want to continue to allow for that.

Mr. Howlin

It would be the exception.

Mr. Smith

I take it Deputy Howlin is referring to what one would call the flagrant abuse of the planning code. Nobody is suggesting there should be an automatic amnesty in these situations. Clearly, applications for retention of planning permission in such situations must be rigorously examined and prosecutions may take place for unauthorised developments. As Deputy Howlin is aware, I have made provision for very substantial fines for offences of that kind in the future.

Mr. Howlin

If the staff are there to detect it.

Mr. Smith

The provision we are dealing with indirectly helps staff in the planning authority because it means they are not subjected to pressure to go back to 1964 to check out improper transactions or whether there had been absolute adherence to planning permissions. In some way that is helpful. I take on board the suggestion with regard to facilitating the public on advice before applications are made for planning permission. As recently as last January a further circular was issued to local authorities advising that as far as possible the conslutative process before applications are made should be widened to the greatest possible extent. I am very interested in monitoring such developments because it can ensure that applications requiring detailed attention could be dealt with and errors made at the beginning could be rectified at an earlier stage, thus satisfying the conditions and everybody concerned.

Arising out of the reference on both Second and Committee Stages to the regulations on public notices, Deputy Flaherty can rest assured that I want the most transparent system possible. Over the next couple of months I will try to ensure that the new regulations take account of broadly held views to ensure that people in the locality know exactly what is taking place and will have a reasonable opportunity to assess it in good time and take appropriate action. Deputy Garland and I can differ and we will probably continue down that road. He too will appreciate that in a great number of areas we have improved, and will continue to improve, the system by way of regulation to ensure that it is an open, fair and balanced one.

Amendment No. 5 will add a new paragraph to subsection (3) of section 24 of the Bill, which deals with commencement matters. This is a technical drafting change. The purpose is to make it clear that the various elements of subsection (6) of the new section 27 being inserted into the 1976 Act can be brought into operation on different days.

I should first explain that up to now enforcement action under section 27 (1) (a) of the 1976 Act could only be taken in respect of unauthorised development which is actually in progress. I refer here to development which has no planning permission. This Bill extends section 27 (1) (a) to enable action to be taken against unauthorised development completed after the passage of this Bill. I intend to introduce the five year limitation on that kind of enforcement action right away. However, in respect of enforcement action which could have been taken before the passage of this Bill — that is, seeking court orders in relation to unauthorised use of land or development which does not comply with planning permission — I intend to bring these provisions into operation after 1994 so that planning authorities can take action in the intervening period against any long standing planning contraventions.

Question put and agreed to.

Mr. Smith

I move that the Committee agree with the Seanad in amendment No. 2:

Section 19: In page 16, line 39, "and" deleted.

Question put and agreed to.

Mr. Smith

I move that the Committee agree with the Seanad in amendment No. 3:

Section 19: In page 16, between lines 39 and 40, the following paragraphs inserted:

"(c) by the insertion in paragraph (b) of section 26 (1) after `being', of `or is likely to be';

(d) by the substitution of the following paragraph for paragraph (b) of section 26 (2):

`(b) in relation to any unauthorised use being or likely to be made of land, require that the unauthorised use shall be discontinued forthwith or shall not be commenced, as the case may be,';

(e) (i) by the insertion after subsection (3) of section 26 of the following subsection:

`(3A) A warning notice in relation to any unauthorised use of land shall not be served after the expiration of a period of five years beginning on the day on which such unauthorised use first commenced.'.

(ii) This paragraph shall have effect as respects an unauthorised use of land commenced before or after the commencement of this paragraph;

(f) by the substitution of the following subparagraph for subparagraph (ii) of section 26 (4) (b):

`(ii) the commencement or continuance by another of a use required by a warning notice not to be commenced or to be discontinued, or'; and".

Question put and agreed to.

Mr. Smith

I move that the Committee agree with the Seanad in amendment No. 4:

Section 19: In page 17, after line 58, the following subsection inserted:

"(6) (a) (i) Subsection (1) (a) of this section shall not apply to development of land carried out before the appropriate day.

(ii) An application to the High Court or the Circuit Court for an order under this section in relation to development to which subsection (1) (a) of this section applies shall not be made after the expiration of a period of five years beginning on the day on which the development was substantially completed.

(b) An application to the High Court or the Circuit Court for an order under this section—

(i) in relation to an unauthorised use of land (whether commenced before or after the appropriate day) shall not be made after the expiration of a period of five years beginning on the day on which such use first commenced;

(ii) in relation to development to which subsection (2) of this section applies (whether carried out before or after the appropriate day) shall not be made after the expiration of a period of five years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 2 of the Local Government (Planning and Development) Act, 1982) or, as the case may be, of the said period as extended under section 4 of the said Act.

(c) In this subsection `appropriate day' means the day, as respects the paragraph in which the said expression occurs, on which paragraph (g) of section 19 (4) of the Local Government (Planning and Development) Act, 1982, comes into operation.'.".

Question put and agreed to.

Mr. Smith

I move that the Committee agree with the Seanad in amendment No. 5:

Section 19: In page 20, between lines 31 and 32, the following paragraph inserted:

"(b) Without prejudice to the generality of paragraph (a), an order under this subsection may fix different days for the coming into operation of paragraph (g) of section 19 (4) as respects different provisions of subsection (6) of the section inserted in the Act of 1976 by that paragraph.".

Question put and agreed to.

Amendments reported and agreed to.