I am informed that the Tánaiste is unable to attend, and that the Minister for Education is attending in his stead to take charge of this Bill.
Town and Regional Planning (Amendment) Bill, 1938—Committee Stage.
I move amendment No. 1:—
Before Section 10, to insert a new section as follows:—
Sub-section (1) of Section 45 of the Principal Act is hereby amended by the insertion after the word "appeal" where that word first occurs in the said sub-section, of the words—
"to a committee of architects (or town planners) selected on the advice of the Institute of Architects, the Architectural Association, or a professional body of town planners who shall have power to affirm, vary, reverse or annul such decision of the responsible authority, and the person aggrieved may also appeal from the decision of the responsible authority (whether or not he may have already appealed to the committee aforesaid)'
and by the deletion of the words "from such decision" where these words occur in the said sub-section and the said section shall be construed and have effect accordingly.
I have put down this amendment in the hope that the Government would accept it. If the Government does accept it, I think analogously one or two other similar changes should also be made in other parts of this Bill. At the present time the local authorities can issue a veto on aesthetic grounds on a man who wants to build a house or carry out some such work; they can object to the design or to the colour or to some other detail like that.
In this matter of taste with regard to beauty, harmony, colour and so on, there is nobody who can get up and affirm a standard or set up a court which, according to fixed and immutable rules, will be able to establish a norm to which other things must conform. At the present time I think the authority who would decide in this matter is very often an engineer. I have great respect for engineers, but in matters of aesthetics I do not feel that an engineer is, by virtue of being an engineer, more competent than I am. If a person, on his own property, proposes to build, under the terms of Article 45 of the original Bill, this authority, whose experience may have been in the building of roads, can say: "No; we do not like that colour," or, "We want all houses built in half-timbered fashion," or something like that, and, as far as the owner of the property is concerned he has to accept that veto, with the option of appealing to the District Court. The District Court would then have to hear arguments as to the harmony of colour or design in the locality, and would have to decide on a question like that for which, obviously, a District Court is eminently unsuitable. I think myself that, if I were proposing to build a place that I thought would harmonise with the district and would itself be satisfactory, convenient to live in, and beautiful to look at, and such veto came from the local authority, I would feel that there was nothing to do but sit down under that rather than go to the District Court and ask a justice whose function, presumably, would be to know positive law, to decide as to whether my taste or that of the local authority was right.
I am not standing over the exact words of the amendment, but what I feel is that it is possible that your local authority would be a bit cranky, would have a certain fixed point of view that every house had to be in a certain form, and he, under this Bill, is given power to issue this veto where a man, possibly of great distinction, may be responsible for the design and the arrangement of the building proposed. It is always possible, especially in this realm of aesthetics it is always most likely, that you are going to have somebody cranky and unreasonable. There is no absolute way of overcoming that, but it does seem to me that if you have a vocational body, such as the Institute of Architects, proposing a committee of, say, three architects, to consider as to whether the architect of the building or the local authority was a better judge of beauty and harmony, that, amongst those three, you are likely to have what I might call the commonsense attitude; whereas you may not have it in the individual engineer or architect of the local authority. It seems to me that, in fairness to the possible builders, they should have the option of appealing to a body or to a committee which would have some competence in the matter, who would know something about design, and who would have been selected by a body which is a vocational body in relation to building.
Therefore, I thought that the Government would probably agree that this was a reasonable amendment. If they do—I have not got a copy of this Bill in front of me now—I think there are places where,mutatis mutandis, changes might be made. For instance, there is an interim period, and that could go on for 15 years, and in one part of the Bill I think it says that such a body as I propose here may be set up. I would like, if the Government accept this amendment, that they should also accept a proposal that that “may” shall be made “shall”, that it should be made mandatory, so that during that interim period, which at the present time is not fixed—it might last for years—a similar body should be set up. I am not standing over the exact words of the amendment. All I ask is that a committee, appointed on the advice of a vocational body, related to building or to design, would have power to give an opinion or even to give a ruling against the local authority if, in their judgment such a decision should be given.
This proposal, or a very similar proposal, was debated very fully in the Dáil.
Very different, I think, Minister.
It was really a very full amendment by Deputy Dillon, proposing to take Section 45 out of the Principal Act and to insert a new section, which seems to have been well set out. If it had been accepted by the Minister, I think it would have fallen in with the general framework of the Bill. It contained no less than eight sub-sections. Unfortunately, the Tánaiste is unavoidably absent, and I regret that I cannot recommend the Seanad to accept Senator Fitzgerald's amendment.
Under Section 45 of the Principal Act, to which the Senator has referred, the position is that where a planning scheme contains a provision conferring on the responsible authority power to regulate and control (whether generally or in particular areas) the design, colour, or materials of structures, any person aggrieved by a decision of the responsible authority made in exercise of such power may appeal from such decision to the justice of the District Court. When this Town and Regional Planning Act of 1934 was going through the Oireachtas, a second sub-section was put in, in order to meet the point of view which Senator Fitzgerald represents, that was, the anxiety that, if possible, the Minister should avail himself of whatever opportunities he might have to get in a tribunal of persons with special knowledge and practical experience of town planning as a court of appeal, so to speak, in this matter. Sub-section (2) was inserted to meet that point of view. It sets out what can be done when a planning scheme is being submitted to the Minister. The Minister himself afterwards, under the Principal Act, could, I think, amend the actual scheme in order to insert this tribunal, if he so wished, but at present it happens that no scheme has been put up to him containing the tribunal of the character which the Senator desires. The view of the Department is that sub-section (2) is a sufficient safeguard from the point of view of those who feel that special arrangements should be made to have persons who have special knowledge of town planning brought in as a tribunal. It has not been found that the existing provisions are inadequate to the extent that the tribunal should be brought in under Article 45 (1), as an alternative appeal body to the district justice.
The Minister's attitude is that he would like that the procedure should be that, when a planning scheme is submitted to him, if, in the circumstances, the planning authority or the Minister himself should consider it necessary to insert the provision regarding the tribunal in the scheme itself, that that can be done and is sufficiently covered under Article 45 (2) of the Principal Act.
Does that cover theinterim period?
The interim period is before the scheme has been promulgated and is in force. Section 45 applies to the actual period when the scheme is in force. It is thought that it would be rather cumbersome to have this double system of appeal by which an aggrieved person might appeal either to the tribunal or to the district justice, although the district justice is specifically named in the Principal Act as the Court of Appeal. As I said, this provision for the setting up of a tribunal can be inserted in any planning scheme. If the planning authority submits it, or if the Minister and his advisers consider it necessary, they can insert that provision. They feel, apart from this fact, that the anxiety that the Senator and others may have is fully met in sub-section (2) of the Principal Act. They feel that there is no necessity to confine it to architects.
I said I was not standing over the exact form of the amendment.
Perhaps I should mention that when, in the original Act, the term "persons of special knowledge or practical experience" was inserted, it was intended that, if the Minister wished, he could select architects but he need not necessarily confine himself to architects. If he found from experience that a tribunal consisting solely of architects was not, in fact, the best one he would have some freedom, whereas under the proposals put up in regard to the present Bill, the Minister's hands would be tied. I regret that I am not able to recommend the Seanad to accept the amendment. I can assure the Senator that the anxiety of the Department and the Minister in charge of the Bill, as already explained, is to make the Bill as workable as possible. They feel that the existing provisions are suitable and their experience leads them to believe that the special sub-section which was inserted in the Principal Act, providing for a special tribunal to be set up under any planning scheme, if the authority or the Minister so desires, is quite sufficient.
I do not intend to fight this matter, but when the Minister talks about the experience which the Department has had, I should like to point out that I do not think they have had any experience. I, myself, have as much experience in this matter as the Department. Secondly, in this clause there is a provision that a person who is aggrieved by virtue of a ruling that a local authority has given under the Bill, can appeal to the District Court. It is abundantly clear that the District Court is a completely unsuitable body to settle a question of aesthetics. It seems to me that anybody who considers the matter must agree that a committee appointed for the purpose, when advised by a competent body, would be more appropriate to undertake a decision of this character than any District Court could be.
Of course, both sides can go into the District Court and the aggrieved person who, after all, is the chief person so far as the law is concerned, and who is the person we are anxious to see fully safeguarded in this matter of appeals, has the right—and the other side has equally the right— to make a case before the district justice. It may not be entirely a question of aesthetics. It may be a question of common sense, having regard to all the circumstances. I would remind the Senator also that when the scheme is being planned, an inquiry has to be held first in public and the different interests, such as the Architects' Association, which have special interests in this matter, may come there and make their case. They can make representations also to the authority concerned or subsequently they may wish to approach the Minister, so that I feel that, so far as the architects are concerned, they have ample opportunities to make whatever representations they consider right. The experience of the Department, such as it is, in any event, is that the amendment is not necessary. If, after they have had more experience and if the Oireachtas considers that that experience shows that a departure should be made from the present provisions regarding the District Court, I am sure the Minister would be found agreeable to that departure. It is not considered necessary at the present time.
Ba mhaith liom cupla focla a rá i dtaobh an leasu seo. Senator Fitzgerald appears to think that there may be some crank on a local authority who may upset the plans that are submitted for consideration.
In aesthetic matters anybody who does not agree with me must be classed as a crank.
Ni thuigim an meid a dhubairt, an Seanadóir.
Tuigim-se é, pe sgeal é.
The local authority, after the plans are submitted, can take into consideration the advice of their own professional officers, their architects and engineers. The experience we have had, at all events, is that they are not anxious to interfere with any plans submitted to them. I cannot see any justification for Senator Fitzgerald's fears of a cranky attitude on the part of local authorities.
I move amendment No. 2:—
At the end of the section to add two new sub-sections as follows:—
(3) Any person aggrieved by a declaration made under Section 59 of the Principal Act or this section may appeal within the prescribed time to the Minister against such declaration, and thereupon the Minister shall either confirm or annul such declaration.
(4) Section 59 of the Principal Act is hereby amended by the deletion therefrom of paragraph (g) of sub-section (1) and the said section shall be construed and have effect accordingly.
I should like to have this matter explained somewhat more fully. As far as I can see, this is merely a repetition of the first paragraph of Section 59 of the Principal Act. I should like to have the necessity for this amendment explained, because there are a number of sub-paragraphs. As far as I can see, the whole matter was crowded into Section 59 as it stands. I have an amendment, which appears later on the Order Paper, and I would prefer if it were taken before this amendment, not, I presume, that it makes very much difference, but in my amendment I propose to change the words "The Minister" to "The justice of the District Court having jurisdiction in the district". If my amendment were accepted, it would affect the amendment now under consideration. I thought the matter was covered by Section 59 as it stands.
It is not covered. The procedure is that first there is a prohibition made, but that does not prevent people from going in and building or carrying out other work. The intention is to strengthen the position. The special prohibition, which in itself is not sufficient, is followed up by a declaration, the effect of which is to make the building or carrying out of other work an offence. That offence can be dealt with in the courts. The person responsible is taken to the courts. It is considered that Section 59 of the Principal Act is defective, because it makes the appeal from the declaration part of the appeal against the special prohibition in respect of which the declaration was made. When a declaration is made some time after the making of a special prohibition, there will be no appeal. In order to appeal from the declaration at present there has to be an appeal against the special prohibition. It is considered that the appeal from the declaration should be made, quite definite and separate, to the Minister. It merely means on the question of appeal against the declaration that anything done which has been already prohibited becomes an offence. If any person wishes to appeal against the declaration he can do so now by making a special appeal to the Minister. Really it is largely a legal question, and one of making the administration of the Act more flexible.
Will it have any effect on the subsequent amendment?
We do not propose to accept the Senator's amendment.
In any case it can be put in on the Report Stage if accepted.
I move amendment No. 3:—
Before Section 12, to insert a new section as follows:—
Section 59 of the Principal Act is hereby amended by the deletion of the words "the Minister" whenever these words occur in that section, and by the substitution therefor of the words "the Justice of the District Court having jurisdiction in the district," and the said section shall be construed and have effect accordingly.
I do not propose to occupy much of the time of the House with this amendment, because once a decision has been arrived at I am afraid it cannot be changed. I am sorry the Minister is not here. I think it would be more essential in this section to have the district justice dealing with these appeals. If a person has a grievance he can, no doubt, appeal to the Minister, but very often people are not adepts at drawing up an appeal to be sent forward. The point I want to make is that the individuals concerned in some cases are not satisfied. In the first place they may not be able to make a good case on paper and as a result may suffer. They think that if they could get a hearing before the Minister, that by coming up before him their chances of success would be much better.
If a case could be brought before the district justice, as it can under Sections 44 and 52 of the Principal Act, it could be heard locally, and a person with a grievance would have an opportunity of making his case. Even if he failed there he would be more satisfied than could be expected under the present circumstances. However, if it is not possible to accept the amendment I do not wish to detain the House, and will refrain from saying anything that is not acceptable to the Department.
I should like to explain the position. The first step is to hold an inquiry at which all interests concerned have the right to make representations or subsequently to make representations to the planning authority or the Minister. In the original Bill the Minister is the final authority in the planning scheme. After the planning scheme comes into operation, if persons are aggrieved they have then this right under Section 45, which I referred to on the previous amendment, to go to the District Court. Up to the period when the planning scheme comes into operation, and particularly during the interim period, between the time the planning authority issues the advertisement and the scheme comes finally into operation, the Minister, under the main Act, is the final authority, and persons who wish to challenge any provision of the contemplated scheme have due access to him at all times. I cannot see why they should have any difficulty in approaching the Minister. I am informed that the officers of the Department, who are charged with looking after this question, are available to meet and discuss their difficulties with aggrieved persons.
Once a scheme has been brought into operation, the Minister, having been the final authority in connection with it up to that stage, the question of an appeal as to whether persons shall get permission in respect of matters under Section 45 of the Act is one for the courts. I do not know if the Senator was quite clear about the matter, but the position is that, up to the actual promulgation of the scheme, the Minister is the final authority, and anybody interested or anybody who feels aggrieved has the right of appeal to the Minister against its provisions. When the scheme is promulgated then it is taken out of the Minister's hands, and if persons are aggrieved they would have the right to go to the courts. If the Senator would communicate to the Department any cases that he has in mind they will be examined.
Before a planning scheme is put into operation the local authorities have very great powers. Once they pass a resolution adopting the Act, and before putting up a scheme, they have power afterwards to prevent any individual erecting any structure without their permission. I presume from that that there is an appeal to the Minister, and it is in that case that I would ask that the words "district justice" should be substituted for that of "the Minister".
I think that would change the whole intention of the original Act which was that the Minister, in the preparation of a scheme, should be the final authority.
Between this and Report Stage I will try and get in touch with the officials and see if anything can be done to meet my point on the Report Stage. I may say that I do not want to interfere with the main provisions of the Bill. What I aimed at in the amendment would not, I think, have the effect which the Minister says.
I move amendment No. 4:
In sub-section (1), page 6, line 26, to insert after the word "given" the words and brackets "[whether before or after the passing of this Act]".
The purpose of the amendment is to make it quite clear that the provisions which enable compensation to be given for loss caused by an "interim direction" apply to interim directions which have been given before the passing of this Bill as well as to interim directions given in the future. It is a drafting amendment.