Dáil Éireann díospóireacht -
Wednesday, 25 May 1994

Vol. 443 No. 2

Local Government Planning and Development Regulations 1994: Statements (Resumed).

Mr. Sargent

Caithfidh mé mo chaípín a athrú ag an bpointe seo ón Roinn Ealaíon, Cultúir agus Gaeltachta go dtí an Roinn Comhshaoil.

Before the break I was speaking about the change in regulations that put the onus on those proposing golf courses to apply for planning permission. That regulation is welcome and long overdue. Burial grounds, also covered in the regulations, seriously impact on the local environment. I am aware of two areas where, because of the unsuitable ground chosen, the remains surfaced in another person's property. When it comes to applying for planning permission I hope that lesson will have been learned. Also, ground water pollution has been caused due to burial grounds being inappropriately located. It is very distressing for all concerned when such problems arise. We are beginning to realise that even through certain things are underground it does not mean they are no longer significant.

I wish to refer in detail to the retention of planning permission which has almost become standard practice. In this regard buildings are erected and developments carried out without any concern or urgency and an application made for retention. The local authority is then faced with a decision to either cause enormous disruption and be accused of putting people out of work if they refuse permission or, alternatively, to bite the bullet and grant permission. I hope this practice is on the way out. Unfortunately I have had experience of this attitude on a number of occasions. Some developers are profiting sufficiently from the tactic of not applying for planning permission to make it worth while to pay the fee in the hope that retention will be granted. This is a question of example as well as of regulation. The State has been appalling in this regard with its proposals for Mullaghmore, Luggala and the Boyne Valley centre by not seeking planning permission or even checking as to whether planning permission should be applied for or engaging in a consultative process, which is less rigorous. These are inexcusable breaches of public faith and of regulations.

I urge the State to get its house in order so that it can credibly make other people apply for planning permission. In this regard, Mullaghmore is costing the taxpayers hundreds of thousands of pounds in ongoing legal fees, to retain people on contracts and other costs associated with keeping the project in abeyance. This is nothing short of a scandal. The Government which continues to backpedal should take stock and realise that the vast majority of people throughout the country, whatever about in the locality, favour a change of location. The court took this into account in making its decision. The State lacks credibility on this matter; it is being hypocritical when it states that people should comply with the planning process when it has the sticky end of the wicket.

I urge the Minister to inform other Departments about these regulations, in particular the Department of Transport, Energy and Communcations. As he may be aware, the railways, in particular the rolling stock, are being upgraded. This is long overdue. A different attitude is adopted when it comes to the procedures to be followed in replacing bridges, in particular along the Dublin-Belfast railway line. In the case of Balbriggan there was a lack of communication between the company and the various local authority departments. Even though it is required to obtain planning permission, the company decided not to consult with the local community, public representatives or the planning department.

I have been informed by the council that it received a letter in which the company stated it wished to apply for permission not to knock down the bridge but to close a road, in the same way that permission is sought to hold a bicycle race. The council did not see any problem and granted permission. It later discovered when it examined the matter that replacement of the bridge was being considered. When the company contacted the planning department it was informed that under the 1977 Local Government (Planning and Development) Act planning permission would be required. It decided that it would not submit any plans, that there would be a stand-off, and that it would challenge the planning department to do its worst. The planning department had no option but to serve a warning notice the day before the bridge was due to be demolished. This caused enormous disruption in the town — water, electricity and telephones were cut off — all because a semi-State company decided not to consult with the planning department to see if planning permission was required. The planning department insisted that the company should either apply for permission or amend its plans.

The Minister should issue clear instructions to all Departments and semi-State companies to ensure that there is not one set of rules for the elite, those who hold the reins of power, and another for ordinary people such as those who write to me regularly to check if they need planning permission. They do not have the resources to meet the cost of legal fees, adopt a gung-ho attitude and flout the law. The Minister should ensure that people are notified.

Reference is made in the regulations to the publication of forms and leaflets to provide information. The present practice appears to be to produce leaflets in English or Irish only, as if we were living in an apartheid society. Leaflets should be produced with both languages side by side. As the Taoiseach pointed out in the Mansion House in commemorating the events of 1919, we all have a role to play in imparting information.

Ms F. Fitzgerald

I wish to share my time with Deputy Deenihan.

An Leas-Cheann Comhairle

Is that satisfactory? Agreed.

Ms F. Fitzgerald

I welcome the opportunity to speak to these regulations. Were it not for the vigilance of the Opposition we would not have been given this opportunity to discuss them in a democratic forum. There is obviously a fault in the decision-making process. Many professional groups and residents in Dublin and throughout the country have a great interest in these regulations, which have serious implications, yet we might not have been given an opportunity to discuss them. This is a serious matter and I am glad we are having this discussion today.

I note that the regulations are available in printed form at a cost of £22. This is very expensive at a time when the public are supposed to have access to information. While we have an opportunity to make statements we are not allowed to table amendments or make changes. The Minister is defending the regulations and telling us how good they are without giving us an opportunity to consider how they may be improved. Much work has gone into producing these regulations, some of which are very good. While I welcome their consolidation in one instrument as a move in the right direction, citizens are concerned about the planning process.

I have been struck by the efforts made by various residents' associations on a voluntary basis to ensure our planning laws are respected, to preserve the environment and to cater for the needs of citizens. They are, however, working against the odds in terms of information, resources, consultation and involvement with planning authorities.

I welcome the publication of leaflets to which the Minister referred. The issue is empowerment. The new requirements are a bad attempt to impose new controls in the system. With whom did the Department consult in producing the regulations? There may have been some discussion between the Department and some members of the Irish Planning Institute or employees of planning authorities, but were any discussions held with any organisation representing architects or engineers? Were discussions held with outside interest groups? The bulk of planning applications which have a significant effect on the environment are made by architects and engineers.

I am open to correction but no draft of the regulations was submitted for their advice or comment and no consideration was given to how these regulations will be implemented by the practitioners or the cost imposed in complying with the regulations. It is possible that some of the changes in the exempted development category have been brought about following recent decisions by An Bord Pleanála. If the Minister and the Department are unhappy with the decisions of the board, restricting the effect of its decision by implementing new regulations behind its back may have significant implications for the authority, independence and impartiality of the board.

There are two issues to which I want to refer. One relates to exemption from planning permission of all bed and breakfast houses containing up to four bedrooms. The Minister for Tourism and Trade told me that the An Bord Pleanála decision had changed the understanding of exempted development and that resulted in the need for new regulations. In drawing up the new regulations he said a decision had to be made as to what was a material change and what might be exempted and he believed a fair balance had been struck. He said that the fact that small bed and breakfast houses are exempt from approval for change of use under the planning regulations does not absolve them from operating in a responsible way and providing a safe and secure environment for their guests. That is problematic and needs to be examined. If one owns a house with four bedrooms and turns it into a guesthouse, surely there must be some overall control.

I will be raising on the Adjournment tonight the question of using bed and breakfast houses for homeless children. That is only one example of how bed and breakfast houses can be used and the need for regulations. This decision will have major implications for many residential roads in Dublin and could change their whole nature. It will have implications for community development, the environment and road traffic and there should be some level of planning in this regard. The Minister must tell us what exactly he has in mind in changing the regulations.

I agree that small businesses should not be hindered by unnecessary regulations, but it is extraordinary that we should go to the other extreme and give permission for the development of bed and breakfast establishments in this way. The Irish Hotels Federation say the move is anti-competitive, anti-tourism and anti-consumer. It will have severe implications for both urban and rural areas. Such unfettered development cannot be allowed and will change the quality of the environment for many people. It also raises a major concern in regard to standards of tourist accommodation. One regularly hears stories about unsuitable accommodation and I would be concerned that the new regulations could add to this problem. Accommodation premises which are used for commercial purposes should be subject to controls to ensure that high standards are maintained. Anybody's next door neighbour could convert a four bedroomed house into a commercial operation with the resultant problems I have outlined. We should not encourage that.

If this exemption is allowed, how will fire control regulations be implemented? There have been a number of house fires recently with tragic results. For far too long we have tolerated a low standard of fire precautions in our homes and I am concerned that these exemptions will continue the operation of low standards at a time when people are becoming more conscious of fire safety regulations and the change in the regulations would have made it possible for architects and engineers to enforce compliance with the new building regulations.

I concur with the sentiments of Deputy Barrett about regulations in relation to satellite TV dish aerials and I hope the Minister will comment on that matter. We may face problems with vandalism in displaying notices. Would it not be possible for weekly notices to be displayed in local authority offices? I understand the regulations recommend that files do not have to be kept for longer than five years. That is a short period. I would like the Minister's views in that regard as this could have major legal implications.

The Minister is rolling back the effect of the High and Supreme Court judgments in the case relating to inland waterways involving Howard and Others v. the Office of Public Works. The Office of Public Works and any other statutory body will not require planning to improve, reconstruct or restore inland waterways. It is essential that planning permission be required in such cases to ensure that the most sensitive approach is adopted. There have been reports of heavy machinery being used to clear stretches of bank along various canals without proper consideration being given to the protection of vegetation and animals, as well as conserving the visual quality of canal banks. The Office of Public Works can erect a building of up to 40 square metres to manage or operate a canal, river or lake as well as provide a car park with up to 24 spaces. It can also erect a building of up to 40 square metres in an area to a height of 20 metres and provide 40 car spaces on a nature reserve designated under the Wildlife Act, 1976. This commitment to concrete could damage our environment and these regulations make this possible.

It is wrong that so many regulations should go through without consultation or discussion in the Dáil. The regulations are flawed, although some of them are excellent and I welcome their consolidation. Will the Minister review the regulations having regard to the reservations raised?

Mr. Deenihan

I welcome the opportunity of contributing to this debate and I will confine my remarks to a few areas. I am surprised and somewhat disappointed that the regulations do not cover forestry development. We have heard a great deal recently about extensive forestry activity throughout rural Ireland which appears to be taking place in a haphazard manner without a clear policy. There should be reference to the planning authority or some other agency to ensure that such development takes place in a controlled fashion. I favour forestry development. Approximately one million acres of our land is suitable for such development. However, environmentally sensitive areas should not be planted and areas of archaeological and ecological importance should not be planted without reference to the planning authorities. I had hoped these regulations would have included forestry development. Will the Minister give his views in that regard?

The problem appears to relate mainly to commercial forestry rather than small scale forestry development. We are all aware of cases where large companies have taken over large tracts of land and planted trees close to dwelling houses, cutting off sunlight and views for people in rural Ireland. Rather than contributing to development and regeneration, such activity drives people out of rural areas. There should be some form of control and reference to planning authorities before major schemes proceed in the future. On the other hand, small forestry schemes on farms are generally inoffensive to the environment and can be easily controlled. A farmer will not plant trees to obstruct his or her view. The problem lies mainly with large commercial interests.

Work on the development of two or three golf courses in County Kerry which had been underway prior to 16 May was stopped by Kerry County Council. Will the Minister clarify the legal position of those golf courses in respect of the regulations? Did the council have the legal authority to stop those development works? Such intervention created a major problem in Kerry and there was a big protest about it in the affected areas.

As my party's spokesperson for tourism, I received a large number of communications from the tourist industry, especially the registered sector. There are about 1,000 registered hotels and guesthouses, but thousands of unregistered guesthouses, bed and breakfast accommodation throughout the country. People who are favourably disposed to the unregistered operators seem to have more to gain politically and I hope that factor was not part of the reasoning behind the regulations. I sought the views of the county manager in Kerry County Council on the exemption clause and he said it would be difficult to enforce.

Mr. M. Smith

It would not.

Mr. Deenihan

It would be difficult to enforce in respect of all bed and breakfast operators who make a planning application. The Minister will understand the concerns of the tourism industry and the approved operators. Those people who pay rates, VAT, PRSI and so forth, feel threatened by unfair competition. Following the Minister's decision — no doubt supported by the Government — a large number of unregistered bed and breakfast operators who may never have sought approval, will form an important part of our tourism industry. I know many such operators who provide a good service but others do not have the same standards and there is no one to enforce them. Unsuspecting tourists will seek accommodation wherever a sign advertising it is displayed but many tourists are not aware of the difference in quality between registered and unregistered operators. Tourists may have a good experience but a significant number may have a bad one. The Minister for Tourism and Trade agreed that word of mouth is the best form of promotion in respect of the tourism industry. Our good image in the area of accommodation, quality food and so on could be tarnished if a number of tourists on return to their home countries reported negatively on our accommodation because of dissatisfaction in a small number of cases.

The Government will have to face up to this problem, it should implement a licensing system to license all accommodation and grant temporary licences to operators who wish to open for some seasons only. Such a licensing system would ensure that the tourist would be able to obtain good standard accommodation. Following the implementation of the regulations there will be more pressure to implement a licensing system as promised in the Programme for Government on which the Government appears to have reneged. I am sure the Minister will hear a great deal more about this problem. The tourism industry has made a major investment, they are concerned about this problem and annoyed by the Minister's decision. An in-depth analysis of our registered and unregistered accommodation stock is needed. A possible solution to the accommodation problem would have been for the Minister to exempt from planning all accommodation under five rooms approved by Bord Fáilte. It would have ensured that unapproved operators would have to seek planning approval.

I look forward to the Minister's response on the issues of forestry, golf clubs and particularly bed and breakfast accommodation, the issue which has aroused the greatest opposition and interest in the tourism sector.

Minister for the Environment (Mr. M. Smith)

I thank all the speakers who contributed to this sometimes lively debate. However, the issues are more difficult when one has to make decisions. While the main thrust of the contributions backed the provisions in the regulations there were reservations about some areas but no outright opposition to a single provision, which is a tribute to what we have sought to achieve by way of the regulations.

I listened with great interest to all the statements on the regulations, but I did not hear anything to alter my view that they are a positive and constructive step. The regulations have effected a necessary consolidation of secondary planning law and have introduced important new provisions. They will reinforce the open character of the planning process and should make life a good deal simpler for anybody who has dealings with the planning system.

I would like to address, briefly, some of the matters raised by Deputies. Deputy Barrett questioned the appropriateness of regulations of this nature being made without the need for confirmation by both Houses of the Oireachtas. In effect, this is a return of a debate we have regularly when passing legislation. If the proposition he advanced was accepted, it would mean that every minor detail of the regulations would have to be considered in this House. I do not believe it is seriously suggested that it is necessary or appropriate for this House to discuss the content of planning application forms, to decide the bodies to which copies of draft development plans are to be sent or to work out the precise scope of every exemption from planning permission requirements. No parliament would contemplate becoming involved in primary legislation debates on matters of that kind. The reality is that subordinate legislation is necessary for the effective operation of our legislative process. I take issue with Deputy Barrett, therefore, when he says that there is an attempt to push through these regulations. I cannot accept either that it would have been appropriate to deal with the issues covered by the regulations by way of a Bill, as they relate largely to comparatively minor matters of administrative detail.

Deputies Barrett and Frances Fitzgerald expressed reservations about allowing up to four bedrooms in a house to be used for bed and breakfast purposes without planning permission. Deputies O'Donnell and Sargent felt that the new exemption might err on the side of being too liberal.

Deputy Deenihan seemed more realistic in his contribution. Following his discussions with the county manager, he accepted, there would be difficulties in regard to it. It is important to take account of the fact that, to date, bed and breakfast operators were not subject to planning and the decision I have taken does not interfere with their obligation to obtain fire certificates, commencement orders and to comply with hygiene regulations. Deputies should not take it for granted that people are perfect just because they are registered or that unregistered operators are imperfect. Some of the statistics disprove that contention. Control under the planning Acts is concerned with evaluating the acceptability of particular development proposals by reference to the proper planning and development of the area concerned. They are not concerned with issues such as hygiene standards or fire safety, which are regulated through other statutory codes.

My conclusion, following careful consideration of all the issues involved, was that small-scale bed and breakfast operations, involving not more than four guest bedrooms, are not significant in terms of the proper planning and development of the areas in which they are situated and need not, therefore, be subject to planning permission requirements.

The exemption of the regulations relates only to planning permission requirements and does not affect other statutory provisions such as the 1991 building regulations and the Fire Services Act.

In practical terms, the planning exemption we are talking about relates to the use of a standard house to provide a form of accommodation much sought-after by tourists. I cannot see how the public interest would be served by subjecting such premises to a requirement to obtain planning permission.

Deputies Barrett, O'Donnell, Sargent and Fitzgerald all referred to the new requirement for applicants to erect site notices and doubts were expressed about the practicality of the new arrangements. I am satisfied that a requirement to erect a site notice does not constitute an unreasonable burden on applicants, although it will, of course, require them to ensure that the notice is kept in place for the one month period and is replaced or renewed if it becomes illegible, defaced or removed.

My Department has advised planning authorities, in guidance notes, that it would be appropriate to check on compliance with the new site notice requirements when the normal site inspection is being carried out.

Deputy Barrett also suggested it would be appropriate if the responsibility for publishing newspaper notice of applications rested on the planning authority. I believe, however, that the primary responsibility for giving notice of a planning application should rest with the applicant, and it was against this background that I looked at various options for improving the existing notice arrangements. The conclusion reached, after examination of various options, was that a dual obligation to publish newspaper notice and erect a site notice was the best approach.

There was also a reference to the fact that the regulations require An Bord Pleanála's weekly list of appeals received and decided to be made available only at the board's offices in Dublin. However, the relevant provision, article 62, also provides for copies of the list to be sent to interested persons and bodies. It is open to any body, including a planning authority, to arrange with the board that a copy of each weekly list will be sent to it.

On the question of unauthorised developments, I indicated earlier that the higher fee for retention applications is merely an additional disincentive — the planning Acts already contain a formidable array of enforcement powers allowing action to be taken against development carried out without the proper planning permission. If a developer carries out development without permission, he or she is open to a High Court or Circuit Court order for removal of the works.

Deputy O'Donnell expressed the view that the exemptions for advertisements on business premises are confusing. I do not accept this, however, as the exemption for such premises is contained in one relatively brief class in the regulations.

I cannot agree with the Deputy that every sign, apart from a brass plate should need planning permission but I have put an overall limit of five square metres on the area size that can be displayed on the front of a business premises. This is an addition to the existing limit of 0.3 square metres of signs per 1 metre length of frontage.

Deputy O'Donnell also questioned the need for certain types of State development to be excluded from normal planning controls on security grounds. If we lived in a perfect world it would be possible for us to subject all State development proposals to the requirements of the planning process. As we are only too well aware, this is not the case, and a category of State projects must, for compelling reasons of national security, remain outside the development control system. I have gone as far as possible in ensuring public involvement with such development, by the alternative notice procedure under Part XIII of the regulations.

On the question of satellite dishes, I am satisfied that the restrictions imposed in the interests of visual amenity will not, in the vast majority of cases, pose technical problems in terms of line of sight. If, in a particular case, a satellite dish has to be put in a visually obtrusive location, it will, of course, be open to the householder to seek planning permission.

As to domestic extensions, I would like to explain that the new limit which requires not less than 25 square metres of open space to be left at the rear of the house was introduced to prevent cases of excessive plot coverage, where extensions effectively use up all the open space at the back of the house. I do not believe that this new limitation will prove unduly restrictive.

I am pleased that Deputy Sargent welcomes ending the exemption for golf courses. I should explain in this connection that the restriction on exemption where previously open land is enclosed restates a provision of the 1977 planning regulations. Works which commenced before 16 May remain exempt, where they were exempt under the previous regulations.

Deputy Fitzgerald asked whether the provisions of Article 36 of the regulations dealing with the availability for inspection of documents relating to planning applications might not cause planning authorities to destroy files when the period for exemption or inspection is over. Article 36 is identical to the provision it replaced except that it includes the additional requirement that submissions or observations received in relation to an application are to be made available. I do not see how this would lead to the destruction of files when the inspection period is over. In practice, planning authorities retain files for considerably longer than the period during which they are required to be available for inspection. The Deputy should note that section 65 of the Local Government Act, 1994, which I will be bringing into operation shortly, requires local authorities to provide for the proper management and care of local records. The local records to which the requirements of section 65 apply are extensive and include maps, plans, drawings and files held by a local authority in the course of its business.

As to the exemptions which the regulations provide for in respect of certain works carried out by the Office of Public Works, they are largely concerned with minor works such as the maintenance of canals which, because of their nature, it is not necessary to subject to the planning requirements. Since 1990, planning permission is required for afforestation involving more than 200 hectares. This, with other areas relating to forestry development, is at present the subject of a review by the Minister of State at the Department of Agriculture, Food and Forestry, Deputy Hyland. My Department is also involved in that review. If it emerges in the review that there is a need for further intervention as far as the planning process is concerned, I will have no hesitation in doing that.