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Seanad Éireann díospóireacht -
Thursday, 2 Jul 1992

Vol. 133 No. 12

Local Government (Planning and Development) Bill, 1991: Committee Stage (Resumed) and Final Stages.

SECTION 4.
Debate resumed on amendment No. 24:
In page 8, subsection (4) (b), line 8, to delete "shall not" and subsitute "may".
—(Senator Hederman.)

Subsection 4 (b) states that "the Board shall not consider any documents, particulars or other information submitted by an appellant other than the documents, particulars or other information which accompanied the appeal".

This is a very important amendment because if the Bill is left as it is here it will put the board in a most invidious position; in other words, they will not be allowed to consider documents which may quite properly be sent to them. On the last occasion we discussed this, the Minister said it would be a question of the board using their common sense. Some Senators asked what would happen if a document was left out of a letter, if an error was made which the person wanted to correct or some minor matter occurred. To put the board in the position that they could not consider any documents subsequent to the originals would be most unusual.

It is quite common, in my experience, for an appellant — perhaps a developer — when submitting his side of the case to the board, to give inaccurate information, intentionally or unintentionally. Therefore, it is absolutely vital that a third party — a prescribed body or whoever is involved in the appeal — would have the opportunity to counteract or correct errors or misinterpretations. If subsection (4) (b) is passed unamended they will be unable to do that.

It is not satisfactory for the Minister to say that common sense will prevail, and in regard to minor matters of course common sense will prevail, and that the board will be allowed to use their discretion. That leads to complications and misunderstandings. Would it not be better to make it clear by substituting the words "shall not" with the word "may" and then leave it to the board to make the final decision? If the documents submitted are not appropriate they need not be considered, but the opportunity is there if the board think it is fitting.

I support Senator Hederman's amendment. It encompasses other matters we have discussed in regard to amendments to section 4 which referred to the limited timescale for lodging the appeal and the submission in relation to all matters relevant to the appeal.

The Minister indicated that common sense will prevail. However, the law must take account of the provisions in the legislation. This section provides that the board shall not consider any documents, particulars or other information submitted by an appellant other than those which accompany the appeal. That runs counter to what the Minister said about common sense prevailing because it is a strict and absolute prohibition on the board to consider the slightest bit of information that may be submitted subsequent to the initial appeal.

We want a timescale put in place but, at the same time, we do not want the balance shifted to such an extent that the appellant will be dealt with unfairly in the process. It is possible that a need for elaboration may arise at some stage, through information advertently omitted from the original appeal — considering that everything must be submitted initially there is no second opportunity — or the possibility that the developer may change a condition for planning permission which may not have been known to the appellant at the time the full submission of the appeal was lodged.

This provision is so rigidly constructed that it leaves out the possibility of the board considering at their discretion something with good sense or reasonableness. Discretion is not allowed in any circumstances under this provision.

What surprises me about the contributions of Senators Hederman and Costello again today is that the emphasis continually seems to be on somebody appealing against a development. I reiterate what I have already said. I want a balanced situation which takes account of the need for development with so many people unemployed. It should also take account of the fact that ordinary citizens want to know the decision for or against the proposal, as quickly as possible. When an application is refused, the developer may decide to invest somewhere else. Therefore, we need a decision quickly. If the development is wrong or harmful to the environment, the quicker we make a decision not to allow that development take place the better for everybody.

Both Senator Hederman and Senator Costello consistently refer to the appellant who, for one reason or another, is against a development. I would like both Senators to consider, during the course of the afternoon, a broader perspective which takes account of the wider portfolio I have to consider. The effect of this amendment would be that the board would have to take account of documents, particulars and information submitted by an appellant other than those which accompanied the appeal. We have tried to streamline this system so that everybody would be obliged to submit not just an appeal but the supporting documents outlining the full grounds for the appeal at the same time. It is a little unfair to suggest that the appellant where the developer allegedly produces unfair or different documentation which does not present the full picture, is at some disadvantage. All the documents have to be circulated.

Are the Senators suggesting that every element of an appeal against a development might not be open to question? The disadvantage, if it exists, operates for everybody. I will not say where the sins are committed, I will not say they are on one side or the other, generally speaking they are committed across the board. We are not here to accept an amendment which cuts across the emphasis of what we want to achieve, which is to streamline the system, to make it more efficient and eliminate the necessity for all the toing and froing of these documents.

I will deal with the alternative position because I want to be fair to Senators who are doing their best to improve the position. If we go down the road of accepting those documents, at what stage do we stop? Will the board be required to accept documents two or three days before they make a decision? What will happen when the time limit is reached and another document is received? We should realise that this is about good business, being fair and balanced, and giving everybody an opportunity to have their say.

People are obliged to put their full case together when submitting an appeal. We must remember that the application will already have been before the local authority for a minimum of eight, probably ten, weeks. The opportunity to produce all the necessary documentation at the time of the appeal is a fundamental part of the proposed change to try to restructure and streamline the system in order to get these decisions taken more quickly.

Finally, because of the consistent pressure and emphasis which seems to be emerging in the context of this debate that in some way the changes we are trying to make will cut across the rights of a person who wants to lodge an appeal against a development, I want to reemphasise that the same rules apply for everyone. There is no advantage or disadvantage to either side. The Bill merely requires people to get the business done more speedily and take account of the problems we face at present.

According to the Culliton report we need balanced development which should be proceeded with as quickly as possible if it is worthwhile and refused if it is not. Therefore, I appeal to Senators Hederman and Costello to take account of the fact that this House is here to represent not just the appellants, but both sides. We have a vested interest in the right type of development and in ensuring that those who want to appeal against improper development are facilitated.

I would like to comment on the Minister's constructive contribution. On the last occasion we discussed this Bill I was impressed by the Minister's interest, commitment and grasp of all the issues and I thank him for coming to the House. However, if the Minister looks at my contributions to this debate, he will realise that I am not just representing appellants. I made a specific case for a developer having the same timescale in which to submit an appeal as a third party.

Having read some of the documentation I got from the developer's side, I realised the problem which existed, but apparently the Minister has not considered this because he has agreed to give both parties a month in which to appeal. That could create a problem for developers because they do not know whether there will be a third party appeal. They do not know if they might be better off not risking the possibility of an even more unfavourable decision from the Planning Appeal Board, in other words, having more stringent conditions imposed on them.

The Minister is incorrect when he suggests that we are only representing appellants. I congratulate him on the good case he put forward for developers. However, I hold a different view. I hope I am able to look at it from all sides. It is important to put forward counter-arguments to what the Minister said. He spoke about a balance, the unemployed and the need to keep investment in the country. I agree with him but he must realise that it may not be in the interest of the unemployed; it may not result in a balance or attract long term investment if we adopt the measures — some of them draconian proposed in this Bill.

I accept that it is depressing for the Minister to have to listen to us as we make our arguments over and over again. However, if the Bill, is drafted in favour of one side, the frustrations of third parties, etc., will be so great that they will continue with the confrontational and antagonistic attitude I know the Minister does not want, and which I certainly do not want.

My endeavour here is to put it to him that there may be a different and consensual approach to this problem. I am concerned about the unemployed, but I am not certain that employment is best served by allowing dirty polluting industries to set up here or by making it easy for developers to get approval for undesirable developments. That is a simplistic approach and reminds me of the approach taken 20 years ago to proceed with development in order to create employment, and to hell with the amenities, to hell with the Phoenix Park, if you wish to build on it do so. Those were the sort of naive attitudes we heard 20 years ago. We have progressed since then, that is no longer the narrow criteria on which we look to the future. Therefore, I ask the Minister not to repeat those simplistic remarks which I am not prepared to accept.

Although our time is restricted, I would rather spend my time emphasising those points than on the details of the Bill. Because there is a guillotine on the Bill all the amendments will not be dealt with. Since the Bill must pass all Stages this afternoon, what was the point of Senators putting a great deal of effort into analysing this Bill? What is the point of even trying to get amendments accepted? The best I can do in the time available is in some small measure to make the Minister realise there is another way. I am not saying it must be my way. I am simply saying there is another way of dealing with these issues.

The Minister spoke of the unfortunate planning issue relating to an afforestation scheme. I know that was a good scheme. I took the trouble to find out about it because I knew the Minister felt badly about it. Unfortunately, that scheme went by the board, but that should not influence all our attitudes and thinking. That was an unfortunate incident and it happens on every side. As the Minister said, there is not just one side to this argument. There are sins on all sides.

I accept that people occasionally submit frivolous, irritating appeals which should be dealt with summarily. I wish the board dealt with vexatious appeals more often. I am prepared to look at the facts from a developer's, as well as an appellant's, point of view. It is my belief that developers in the past have submitted misleading statements. I accept that third party appellants may also do so, but I want the Minister to accept that developers may want to counteract misinformation submitted by a third party, whether in ignorance or stupidity. I want developers to have that opportunity so that we can deal with the facts when an appeal is made. That is not an unreasonable request. I cannot accept that if a balance is reached it will necessarily lead to the smooth passage to which the Minister refers. If he studies some of the controversial appeals in the past he will realise they need never have taken place if the right procedures and dialogue had taken place beforehand.

I believe there is a consensus here. We do not have the harsh party political bickering that goes on in the other House and I believe in a consensus approach.

I remind the House that we have been 25 minutes on this one amendment.

I will be the soul of brevity. Senator Hederman and I are councillors and both of us get more representations from developers than from appellants in relation to planning permission in the local authority area. I have heard Senator Hederman argue cases in the council following lobbying to us, and I have done likewise. We are not troublemakers intent on putting forward one side of the case; we are concerned that the right balance is struck.

We welcome this legislation. We welcome the tightening up of the timescale and there is no attempt in this amendment to alter that timescale. We simply want to allow for the possibility of additional information being submitted in the time in which the initial submission has been made so that the decision will still have to be made by the board in the timescale outlined.

Perhaps the Minister will address the point he made the last day that reason would prevail in relation to additional information. There does not appear to be any scope in the Bill for reason to prevail in the sense that not an iota of additional information will be allowed to have a bearing on a case before the board. How does the Minister interpret his statement in the context of this provision and does he see fit, having regard to what has been said here, to substitute the words "shall not" for the word "may" in this section? Will it be left to the discretion of the board and will the timescale remain unaltered?

I neglected to cover a point made in the first contributions from both Senators in relation to what I said, that common sense will prevail. First, on the last day we debated this Bill, I was asked what would happen if part of the documentation got lost, etc. I said that if pages nine and ten were absent, for example, surely common sense would prevail. Of course, it does not need to have a legislative impact for ordinary people doing their business to be required to meet obligations of that kind.

I now come to the point where I was accused by Senator Hederman of absolutely representing the developer's case.

Not absolutely.

The Senator said I am making a case for the developer and making it very well. I went to a lot of trouble to explain that whether the development is refused or passed, I have the same interest in getting those decisions taken quickly. I also said that if it was an improper development, it should not go ahead. What I am saying is that decisions should be taken as speedily as possible.

In relation to Senator Hederman's point about dirty industry, simplistic views and views expressed 20 years ago, we have incorporated into Irish law up to 80 European Community directives in terms of the environment since that time. We have an Environmental Protection Agency Act and we are in the process of appointing the directors and establishing that agency. Happily, we have come a long way in terms of how we deal with planning permission applications in 20 years. I would like this debate to go beyond that, in fairness to all sides. Those attitudes no longer prevail and a corpus of legislation has been implemented which puts us on a par with some of the most environmentally friendly countries in the world. Our system is better than any other in Europe. It is much fairer and better than the UK system. We should note that and not give the impression that we are inviting dirty industry, even though it provides employment. That is turning the story around. Let us deal with the real issues. I will not be abusive to anybody, but I would like to concentrate on the real issues. All the Senators' fears are covered by section 9 which provides that the board, in the interest of justice, may ask either the appellent or the developer for additional information if they consider it is merited.

Finally, where a developer or an appellant submits information with their original documentation which could be challenged on the basis of veracity and so on, either party has an opportunity to see those documents. They must be submitted to them and they have time to respond. There are safeguards in the Bill which must be maintained. However, we will not allow people to submit documentation whenever they like, regardless of the consequences on the working of the board. In addressing it this way, account has been taken of the Senators' fears. Section 9 provides that in circumstances where the board feel there is some doubt or concern about an issue, in the interest of justice they may ask the appellant to submit additional information. That covers the essential case you are endeavouring to cover here.

Amendment put and declared lost.
Question proposed: "That section 4 stand part of the Bill."

On Second Stage I praised this section and I thought it was going to make a big difference; it is and I am all for it. Section 4 (1) (b) reads:

State the name and address of the appellant,

If I make an objection I submit my name and address but the problem is that when An Taisce objects, it is the secretary of An Taisce who submits the objection. However, he is not objecting in his personal capacity but on behalf of a member or members of An Taisce. When bodies like An Taisce, Bord Fáilte, the Office of Public Works, etc., object they should send in a short briefing of the minutes of the meeting showing who proposed that an objection be lodged and who seconded it, and giving their reasons. I was wrongly accused of calling An Taisce faceless people. When I said that I meant that I do not know who had objected because the objection went in under the name of the secretary but the person who raised the objection at their monthly meeting was not mentioned.

I have a lot of sympathy with and support the sentiments expressed by Senator Fitzgerald. I am not sure how it could be implemented or put into legislation. It has been a matter of concern to me for some time that organisations, such as An Taisce, can appeal a decision taken by the local authority having regard to their county development plan, which, in the majority of cases, is supported by all the council members. The local authority give planning permission for a development and some faceless people put in an objection, perhaps delaying the development. We had the unprecedented experience in Roscommon at an oral hearing within the last few days of a major tourist linked development, which had the support of every Roscommon County Council member. Senior personnel in Bord Fáilte had stated in writing that they had no objection to the development. However, at the oral hearing, Bord Fáilte objected to the development, despite the fact that on the file senior Bord Fáilte personnel had said they had no objection. I sympathise with Senator Fitzgerald's sentiments and I believe that if a national body objects, they should state why they are objecting to it and on whose behalf.

Question put and agreed to.
SECTION 5.

I move amendment No. 25:

In page 8, lines 18 to 35, to delete subsections (1) and (2) and substitute the following:

"(1) After the commencement of this section, the documents concerned mentioned in section 6 shall be made available for inspection by members of the public, during office hours at the office of the planning authority for a period of five years beginning on the day of the giving of the decision, and members of the public may, on payment of the reasonable cost of copying, obtain a photocopy of all or any of the said documents."

The last part of this amendment which states:

... Members of the public may, on payment of the reasonable cost of copying, obtain a photocopy of all or any of the said documents.

It would make life easier for voluntary groups in view of the fact they have to study a great deal of documentation, which is getting more complex all the time, but it is not the part of the amendment I am most interested in. If it is not possible and if the Minister comes up with valid reasons it cannot be done, it will not dismay me unduly. However, the first part is important. As I understand it, under the section as drafted the documentation is only available, when appealed, to the appellant. Here, the documentation is to be made available for inspection by members of the public. If that is so, I welcome it.

What I find difficult to understand — and perhaps I am not getting the full impact — is why it should only be for a period of a month beginning on the day of the giving of the decision. That seems to be a very short period. One has to look at this in the context of the amount of development which takes place, and which is not carried out in conformity with the plans lodged. It is very important that the plans should be available so that members of the public, An Taisce, etc., should have the opportunity to see if the development is carried out in conformity with the plans as lodged.

A survey was carried out by the Environmental Research Unit in February 1990 entitled the "Development Control System, 1989", based on a survey of planning applications made in 1986 and developments based on them up to 1989. This survey found that 44 per cent of permissions commenced were not carried out in conformity with the permission granted. That is a horrific figure. The general trend was confirmed by a similar survey carried out by An Foras Forbartha; they found a non-conformity rate of 42 per cent. In 1989 the Environmental Research Unit termed half of such non-conformities as significant and noted that half of effluent disposal non-conformity was significant as well as two-thirds of traffic safety non-conformity. That is something about which we should be extremely worried. There are appalling implications in those figures about which the Department of the Environment should be doing something. If I understood these statistics correctly, it is important that the documentation would be available for inspection for a longer period than one month.

I broadly support the amendment. I am sure the Minister will say there are enormous difficulties in having material available for an extended period; perhaps five years is too long, but one month seems inadequate. All the development would probably have to take place after that and some members of the public, having missed the notification of the application in the newspapers, might be interested in seeing what the development would be. In those circumstances, it is reasonable that information in relation to a planning application should be available for a certain period following it because, of course, the planning development takes place over a period of months and generally years. Would it not be appropriate that each local authority would have a specific library where planning applications would be lodged and would be available for the general public and for researchers who might wish to look into the past? From that point of view, I wonder what happens to applications that have been made once the decision is taken and once the one month has expired? Are they shredded? It says in section 5 (2) that the Minister may prescribe additional requirements in relation to availability but what is the situation to date? It would seem reasonable that the present specified period be extended.

I would like to deal quickly with unauthorised development. Senator Hederman will know that later on in the Bill we are providing for very substantially increased penalties for any types of unauthorised development which should help considerably.

With regard to the statistics which show that a considerable number of developments have not conformed absolutely with the planning conditions, my information is that even though I would like to have further time to examine that, we are dealing here with very minor alterations. At the same time, I would like to have a further look at some of those statistics and see where they are leading because it is important that developers conform to the conditions in planning. However, if they are of a minor nature, and I understand they are, they do not significantly change anything but where there is unauthorised development of any significant nature I am increasing the fines very substantially in connection with offences of that kind.

Amendment No. 25 in the name of Senator Hederman proposes that the documents mentioned in section 6 would be made available for a period of five years after the planning authority gives its decision and that members of the public would be entitled to obtain photocopies of these documents. The amendment also proposes to delete section 5 (2) of the Bill which empowers the Minister to prescribe additional requirements as to the public availability of documents.

I am not opposed in principle to the idea of photocopies of documents being made available by planning authorities. However, I am not convinced it would be appropriate to include provisions relating to photocopying facilities in an Act of the Oireachtas, especially at a time when we are attempting to move away from overly detailed regulations and control of local authorities. The question of making such facilities available is essentially a local matter and would more appropriately be pursued at local level. On that basis I cannot agree to the amendment.

Under the existing section 5 (1) relevant documents must be made available for a period of one month from the date of the planning authority's decision. If an appeal is made to the board this period is then extended until the appeal is determined. My intention is that the requirements as to the further availability of documents relating to applications will be laid down by regulations under section 5 (2). I believe this is a more appropriate way of dealing with the matter than specifying a fixed period of availability in primary legislation. I might add also that a five year period suggested in the amendment would not be appropriate in all instances because some planning applications would have a longer life than five years. For these reasons, I do not consider the Senator's amendment is the correct way of dealing with the availability of documents after the appeals process is concluded. Accordingly, I ask Senator Hederman to withdraw the amendment.

The photocopying aspect is something that would be welcomed. It can very easily be dealt with at local level and is not something that should be catered for in primary legislation. Having a definite period as I have explained can, in some circumstances, be not long enough but in the main it can be dealt with in the regulations under section 5 (2) of the Bill.

The Minister said some developments had not conformed completely. That is not what I am talking about. The Minister's own Department's Environmental Research Unit, which I quoted already made it clear that 44 per cent of the developments commenced were not carried out fully in conformity with the permission and I went on to say then that in 1989 the ERU termed half of such developments as significant. I take these figures from the Minister's Department. I have to confess I have not pursued research into the nature of the developments. I accept what I get from the Department of the Environment and if they tell me the figures are significant and that half of effluent disposal arrangements were not in conformity with the permission and two-thirds of traffic safety arrangements were not in conformity I accept that I must do that because I have no way of hearing any contrary opinion on them. If that is the case, we are not talking about something minor or trivial. Perhaps the Minister feels that something is minor or trivial which his Department would consider to be significant. That may be the trend of what is emerging from this debate, that the Minister finds them insignificant and his Department finds them significant. People do take different attitudes to non-conforming development and that may be the case.

With regard to photocopies, I think I can let that aspect rest because, as I understand it, the Minister is saying in his contribution that there is nothing preventing the local authority from doing that and I accept it. Other Senators may know the situation with regard to local authorities but I am not aware of it. On the other aspect, that it is a local matter what decisions are taken with regard to reports, I wanted to confirm that the Minister had in mind that internal reports from local authorities would be available, that relevant documents would include internal documents. I will press the amendment and see if the Minister may take it on board.

Amendment put and declared lost.

Amendment No. 26 is out of order. You were informed over a week ago, Senator Costello.

I consider amendment No. 26 an important amendment. Would the Minister clarify why it is out of order?

I have indicated that it is out of order and I have sent you a letter confirming that. We are moving to the section itself.

Amendment No. 26 not moved.
Question proposed: "That section 5 stand part of the Bill."

The question of the public notice is very important and is relevant in this section. It seems very reasonable that the planning application should not be dealt with until such time as there is adequate public notice of the application and it should be available to those living in the area. Has the Minister any good news for us on that? Is he intending to change the regulations governing the notices of planning applications?

The public notice requirement does not really arise on this section but I have indicated already my desire and commitment to ensure that we have as quickly as possible through the regulations a more effective and clear public notice requirement.

May I take it that the dual requirement in relation to publication in a newspaper and publication on the site will be taken on board, which I understand is the recommendation of the Barrington report in this matter?

I know it is very often the practice in this House that once you give a commitment to do something generally you are then asked to say specifically what is involved. At this stage I do not want to go beyond saying that I am giving very careful consideration to the provision of these regulations which will take account of the views expressed in this House and in the other House. It is certainly a live consideration.

By way of information, Senator Costello, in that amendment you talked about decisions made on a planning application. This Bill deals with appeals and other matters which are concerned with An Bord Pleanála. That was the extension.

This section also deals with the planning authority giving a decision on a planning application.

That is the ruling I have given.

Question put and agreed to.
SECTION 6.

I move amendment No. 27:

In page 8, line 43, to delete "fourteen" and substitute "twenty-one".

This amendment is straightforward and its purpose is obvious. It is to increase the time which the planning authority has to comply with the request from the board to submit certain documents which are outlined on the following page. As I pointed out to the Minister, I am not here to represent either the developers specifically or third party appellants specifically or local authorities. I try to take a broad view of what the problems may be.

As a member of a local authority for 17 years I know, and the Minister knows, that the local authorities are strapped for cash. There is much complicated material which they have to submit to the board under this section, such as planning applications, drawings, maps, particulars, evidence, environmental impact statement, other written studies, or further information received or obtained by them from the applicant in accordance with regulations under the Acts, a copy of any report prepared by or for the planning authority in relation to the planning application, and a copy of the decision. Those are relatively straightforward. Senators who are members of local authorities should be sure that local authorities will be able to conform with the provisions of this section. I am all in favour of local authorities being efficient in their operations and I hope they will be able to comply with this section. If the Minister in his wisdom, and with all the advice available to him, feels that the planning authority can manage this in 14 days I will be happy with that.

If I thought the local authority in question could not submit documentation within two weeks on an application on which they had decided two weeks earlier, where it was required of the applicant in the first instance to submit an extra set of plans, on which all of the documentation was now on file and where an appeal had been lodged, not only would I not extend it to three weeks but I would abolish the council as well.

Amendment, by leave, withdrawn.

I move amendment No. 28:

In page 9, between lines 10 and 11, to insert the following:

"(d) a copy of any representations or observations made by any third party to the planning authority in relation to the planning application.".

This amendment seeks to add section (d) to the documentation to be submitted. We have already a copy of the planning application, a copy of any report prepared by the planning authority in relation to the planning application, a copy of the decisions of the planning authority in respect of the application. Surely relevant documentation would be a copy of any representation or observation made by any third party to the planning authority in relation to the planning application? Representations from third parties would be valid and relevant. For example, what about any commissioned by An Bord Pleanála such as an inspector's report? What about an oral hearing? This section refers to all documentation that is relevant. It would seem this is an extra tier of documentation that is required to be submitted.

It might help to clarify the inappropriateness of requiring submissions made to a planning authority to be sent to the board to take a couple of examples of the kind of situations that could arise. For example, if a person has written to a planning authority saying he thinks a proposed development should be set back a certain distance from the road or should be subject to an overall height restriction, if the planning authority attaches conditions to the permission dealing with these matters the person's concerns will be met and there is no reason his submission should go to the board if there is an appeal. On the other hand, a person might be opposed to a proposed development and might make submissions to the planning authority saying why he thinks permission should not be given. If the planning authority gives permission, that person will want either to appeal to the board or to make submissions to the board. In that case, his earlier submission to the planning authority will be overtaken by his subsequent correspondence with the board and it is unnecessary for the planning authority to send it to the board. For the foregoing reasons I believe section 6 should be left as it stands and that we should not provide for the transmission of application level submissions to the board.

I would like to turn to the point I made earlier to Senator Hederman in relation to the time a local authority has to submit the documents. We will be sensible about that. We require them within a reasonable time to submit all the relevant documents. In the case of the board itself we streamline their system and in the case of the applicant we require them to submit the appeal and all the grounds. This approach means we will have a sensible, speedy and efficient system. We are not going to allow for the supplying of unnecessary documents that have become irrelevant. We concern ourselves with the relevancy, the flexibility and the efficiency and the local authority's ability to provide the documents on which the decision should be based.

To a certain extent I accept what the Minister says and I accept that this amendment is not an easy or a straightforward one. There is another side to it. If somebody wrote in objecting and saying the development should be set back and the local authority put in a condition to that effect, the Minister asked why should that objection or that observation go to the Planning Appeals Board. I know for certain that many members of the public believe, mistakenly, that when they write to a local planning authority making observations or objections, that observation or objection will accompany that application to its final stages. They do not always differentiate between the Planning Appeals Board, the planning authority and on. It is not unusual for an application that gets a condition inserted by the planning authority to go on appeal to the board. When it is appealed the board could remove that condition and they might not be aware that representations were made. That is the other side of the problem. We do not want to see the board bogged down with unnecessary information, but if members of the public make a representation, it should be brought before whoever is deciding the matter. The board are entitled to remove the condition which satisfied the objector regarding the setbacks.

I liked the spirited way the Minister spoke about dismissing the local council.

I am itching to do it somewhere.

I hope the Minister gets the opportunity but I hope it will not be in Dublin because it would be strenuously resisted. It is nice to know that the Minister is on record as saying he is itching to do it. I will be able to alert my colleagues.

It will encourage them to smarten up their operation. I kept my plea low key that three weeks rather than two weeks would be given in which to send in the documents. I did it in the knowledge that local authorities have seen dramatic reductions in staff numbers since they became subject to the public service recruitment restrictions.

I have constantly said at my own council that we should be more efficient. I have opposed the imposition of service charges because it is a recipe for inefficiency on the part of the council since the manager can look for more charges. We have been bitterly penalised by the Department for not imposing service charges, but that is another day's work. However, I am not going to discuss that now because it is not relevant to this debate. What is relevant is the observations made by the public. I ask the Minister to give a better reason for not passing these observations to the board than that the board would be bogged down with paper work. I do not think that is a genuine reason.

Amendment put and declared lost.
Question proposed: "That section 6 stand part of the Bill."

Has the Minister anymore to say on that section?

I indicated earlier that I wanted to achieve the right kind of balance. We must take into account the planning applications that were decided at local authority level which subsequently become the subject of appeals to An Bord Pleanála and all the documents submitted with them. I am not interested in foisting all of that paper work on the board when I am asking them to decide appeals within four months. In order to achieve that I am asking the appellant to give all the grounds for the appeal together; the local authority must submit the documents within two weeks and the board must ultimately take a decision within two months.

The Senator may not consider it logical to require the board to deal with these matters in that way; she may consider that they should get all these documents whether they are relevant or not. As I see life in Ireland today, the more relevant everything we do is the better it is for the hopes and aspirations of young people. The more time we waste doing things that are not important, the less time we have to do all the things that are important. What we are doing is concentrating people's time. I do not want the board to read reams of material which is not relevant. If that proves I am a Minister incapable of doing the job, then someone else will have to take my place.

What it hinges on is what we think is important and what the Minister thinks is important. I happen to think it is important that if a third party sends in a representation — I am not talking about a vexatious or frivolous representation but about something important — it should not be considered irrelevant. The Minister may not think that is important but I do.

If the Minister told us he was concerned that the public were of the belief that their representation went with their application and appeal and he intended to take steps to rectify that either through publicising it or asking the local authority to notify the person that their representation will not be forwarded, I respect the Minister's bona fides in the matter but I find his dismissal of the fact that these matters are not important rather distressing to say the least.

The point has been raised on a number of occasions that I am dismissing serious matters. That is far from the truth. Senator Hederman made the point that people may not be aware, or may be under a misapprehension, that these documents were sent on. It is not too much to require an interested person or group to follow up their appeal. The 1983 Act required the appellant to submit the full grounds of appeal. I am not going to go over the reasons for putting that provision into the Bill but after 23 years experience, we require the appellant, by law, to submit his or her appeal. I am removing that provision because if anybody is interested in making an appeal they should not be required by law to submit it. If they believe in it, they will check it out and ensure that their case is made. This will discourage those who are only interested in putting in an appeal and not following it up. Senator Hederman can accept that I am not dismissing serious matters.

It might be helpful if I clarified one point.

An Leas-Chathaoirleach

I remind the Senator that we are on a very tight time schedule and there are a number of other amendments worthy of discussion.

The Minister spoke a number of times about people being forced to send in the grounds of their appeal. That happens in many cases because these appeals involve a retention, and it is in the interests of the developer to delay the appeal as long as possible. If he can delay it for five years court proceedings cannot be taken against him. Many people did not send in the grounds of their appeals because it suited them to drag out the procedure. There is a point on which the Minister and myself are in agreement. I know the Minister is correct and they did take a long time to send in the grounds for their appeal.

All the more reason why the Senator should agree with what I am doing now.

Question put and agreed to.
SECTION 7.

I move amendment No. 29:

In page 9, lines 17 to 19, to delete paragraph (b).

The section states that the "Board shall as soon as may be after receipt of an appeal, give a copy thereof to each other party". They can make submissions within one month. I hope the Minister will allay my concerns for the developer. Everybody now has a month in which to put in their appeal. An amendment was put down in the Dáil. It was three weeks originally for one side and a month for the other side and now it is a month for everybody. Am I on the right section?

We are on section 7. It would have arisen if we had passed an earlier amendment. It is not relevant at this stage.

Amendment, by leave, withdrawn.

I move amendment No. 30:

In page 9, between lines 19 and 20, to insert the following new paragraph:

"(c) The planning authority, when submitting documents to the Board, shall also notify any third parties who have made representations or observations on the application that an appeal has been made to the Board.".

I put down this amendment because I was led to believe that not all planning authorities do this. My own planning authority do it and notify third parties who have made representations or observations on the application that an appeal has been made to the board and they tell them the length of time that they have, etc. If this is not a widespread practice, it should be because it is a good one.

It is not a matter for primary legislation but it is a matter for regulation under the planning Acts. It is necessary to have a uniform system. The point is very often made that local authorities should have autonomy but in matters like this it is far better to have throughout the country a uniform system of requirements relating to notices. These will be dealt with by regulation.

I will not press this amendment if it is the Minister's intention to get the planning authorities to notify third parties.

I am in a most generous mood today but I do not want to be tied by the amendment.

That means "no", does it?

Amendment put and declared lost.

I move amendment No. 31:

In page 9, lines 23 to 28, to delete subsection (4).

Amendment put and declared lost.
Section 7 agreed to.
SECTION 8.

I move amendment No. 32:

In page 9, to delete lines 32 to 46.

This is the same basic point we made previously. The section states that any person other than a party may make submissions or observations in writing to the board in relation to an appeal within the period of time and any submission or observation received by the board after the expiration of that period shall not be considered by the board. We made the case as best we could not only for mistakes and inaccuracies but for misrepresentation. However, the Minister has fairly consistently spoken about streamlining and efficiency. These other issues do not seem to weigh very much with him.

I do not think there is much point in speaking at length about this amendment. I ask the Minister to take it on board but I do not do so with any great conviction. I was very impressed by the Minister's attitude and approach to the Bill in the early stages but now that there is a guillotine on it we may as well face up to the fact that we are wasting our time even discussing these amendments. It is impossible for the Minister to take anything on board because of the guillotine. Therefore, any pleas we make fall on deaf ears.

An Leas-Chathaoirleach

We have strayed from the amendment.

We will not get excited about this at all. The effect of——

The Minister may not but I am.

——the amendment would be to remove the time limit on the making of submissions to the board by persons other than parties to the appeal. I have been accused of many things in regard to this Bill. Almost everybody in this House agreed that this system should be streamlined. They agreed it was important for An Bord Pleanála to take their decisions in a much more efficient and businesslike way. Arising from that, we want to put in place the mechanisms which make that possible but once I sought to put the principle into effect, I was faced with amendment after amendment which cut totally across the principle. As Minister, I do not have that luxury. Either I agree with the principle or I do not. Once I agree with it I will try to put it into effect and that means I have to ask Senators to withdraw the majority of these amendments because in practically all cases they make it impossible for the principle of the four months to be observed.

It is not about stubborness or that it is a waste of the Senator's time. There have been very interesting contributions made which will assist me in putting together the regulations under this legislation over the course of the next few months. I have received very valuable information on how the planning system works. When it comes to trying to make the system more efficient in the interest of the country, the taxpayer, the developers, and appellants, we cannot have it both ways.

I would say to the Minister——

An Leas-Chathaoirleach

This aspect of the Bill has been covered at length and I ask the Senator to be extremely brief.

I am merely responding to the Minister's comments about streamlining. He knows we are all in favour of that. He mentioned developers who put in an appeal but who fail to send in the grounds for the appeal and I told him why the majority of them do that. It is because they do not want to hurry up things. Why did the Minister not take action which would nobble them without nobbling the unfortunate members of the public, the third party or prescribed bodies? That is my objection. I am in favour of streamlining the system but the Minister should apply the pressure where it is required. The reality is that the Minister is not in a position to accept amendments because of the guillotine. He need not try to give us the impression that he can take certain amendments on board.

An Leas-Chathaoirleach

In fairness, the Senator will have to accept what she is saying is repetition.

Amendment put and declared lost.

I move amendment No. 33:

In page 10, lines 5 to 11 to delete subsection (4).

Amendment put and declared lost.
Section 8 agreed to.
SECTION 9.

I move amendment No. 34:

In page 10, between lines 29 and 30, to insert the following subsection:

"(2) Notwithstanding the foregoing provisions of this section, an appellant shall be entitled as of right to make further submissions on matters arising from submissions under sections 7 and 8.".

This amendment is in the same vein as the foregoing amendments. The Minister pointed out that his concern is to streamline the legislation. We agree with that. Under no circumstances are we anxious to have a slipshod system. We agreed to the timescale being prepared. The fatal flaw in this legislation is the manner in which it is necessary to make a submission and not to be able to elaborate, under any circumstances, on it. It may result in unfairness if people feel the timescale was too tight, or something occurred in the meantime or was inadvertently omitted and they are not given an opportunity to present any further documentation. We are not talking about this happening in every case but where further relevant information might be allowed by the board.

The principle difficulty with the Senator's amendment is that it would re-open the endless circulation of submissions and countersubmissions which slow down the process at present. If the appellant has an automatic right to respond to the other party's submission, why should the other parties not have the same right? We are back into the paperchase again. I have tried to explain that that was one of the reasons for the long delays in dealing with planning appeals.

It would be preferable for the board, having examined the application, to decide that in the interests of justice the appellant should be required to submit additional information. If the appellant had the right to circulate a further document, a counter position would be adopted by the applicant, and on goes the paperchase. For that reason the more practical and desirable way is to leave section 9 as it is.

I understand the Minister's point about the paperchase but at a certain stage the board make a decision. What happens at the moment if the board is about to make a decision and some other piece of paper is submitted?

I finally laid my hands on An Bord Pleanála's annual report for 1990. It was not my fault it only arrived in the Library on 22 May; I sought it earlier in May. We are still working from 1990 figures. If we had the 1991 report we might discover that the Minister would not need this legislation. According to the 1990 report, planning appeals on hand for more than six months fell from 16 per cent at the end of 1989 to 11 per cent at the end of 1990. This provides they must be able to cope with the paperchase problem.

In the lead up to the preparation of this Bill, a great number of meetings were held to discuss ways and means of improving the system in An Bord Pleanála and many of those systems have been put in place. However, there were problems which could not be dealt with unless the law was changed. I have already explained this.

The board are gearing themselves to implement this legislation and decisions were taken a couple of years ago to streamline the position.

Will the Minister answer the question I asked? At the moment, how do the board manage to come to a final decision when on the day they make the decision, another piece of paper may be submitted? How do they resolve that problem? If they can resolve it now they will resolve it under this Bill.

There is nothing more I can add. The Senator may not have been happy with my answer but let us look at the logic of it. As regards the paperchase and what happens, new information is received when they are trying to make a decision, a number of efforts were made to change the system and within the confines of earlier laws to administer it more efficiently. All the systems have been put in place. After the passage of this Bill, they will not have to deal, on a general basis, with information coming in on a slipshod basis. That is why I said at the beginning that until we pass this Bill, except where the board require information, they will no longer be faced with the paperchase which is part of the old system.

The Minister has not replied to my question, so we may as well move on.

Amendment put and declared lost.
Section 9 agreed to.
Sections 10 and 11 agreed to.
SECTION 12.

Amendment Nos. 35 and 36 are related and it is proposed to discuss them together.

I move amendment No. 35:

In page 11, subsection (1), line 5, after "appeal" to insert "other than an appeal which could materially breach the local authority's development plan zoning".

Very often, councils draw up development plans, seek expert advice, and then have their plans approved and agreed. I know of cases where appeals which do not comply with the county development plan are upheld by An Bord Pleanála. Senator Finneran knows what I am talking about. We have had at least four cases in County Roscommon — a small county with a population of 15,000 — in the last 12 months where An Bord Pleanála refused planning permissions which were in line with the council's development plan. This is ridiculous and that is why I ask the Minister to take this amendment on board. I do not believe we should have oral hearings where there is a proposal that is in contradiction with the county development plan.

These amendments will strengthen the Bill and through them it will gain the respect of councils and the elected members of councils throughout the country.

I am in agreement with this amendment. Where the councillors of a local authority have gone to the trouble of discussing at length a draft development plan, where a development plan is drawn up, voted on and passed and is then the basis on which the local authority operates over a specified period of time, An Bord Pleanála should be obliged to take cognisance of the democratic decision taken by that body. In that context this amendment is appropriate. We should not allow a material breach of a local authority's development plan in relation to zoning. The amendment is an exercise in local democracy.

The position here is that we have gone, fairly generally, for as flexible a system as possible. In the past, in the case of oral hearings, the Minister could decide to have an oral hearing or not. I am discontinuing that system of involving the Minister in deciding whether there is an oral hearing.

Senator Naughten made the point that where there is a possibility of breaching or changing the county development plan there should be an obligation to have an oral hearing. If possible, I want to get away from the position where we set out to define particular cases where the board would be required to have an oral hearing. I have done that consistently throughout the Bill because the more you try to define in law particular categories of cases as being the areas where certain specific action should be taken vis-à-vis an oral hearing the more your realise the problems that poses. While remaining within a county development plan, a case could involve a serious contravention.

Locally elected members can give planning permission in breach of their development plan, as can An Bord Pleanála. There would be very few cases involved, but the power to do that is covered in the Bill. I do not want to get into the area in primary legislation.

I am discontinuing the involvement of the Minister in deciding, in advance, categories where there should be an oral appeal. Categorising at an early stage, anticipating what is likely or unlikely to be involved, is a dangerous business, in primary legislation. Times change, attitudes change, different types of planning applications emerge and have to be dealt with in as fair and efficient a way as possible. I do not want at this stage to be involved in deciding in advance the sort of procedures the board should follow in determining cases like this. It is an independent statutory board with its own quasi-judicial functions and I want to leave it that independence. I want to make it more businesslike but I do not want to prescribe in advance constraints or categories of special cases where they are obliged to take certain actions.

To some extent I can appreciate the concern of Senator Naughten because in his capacity as a local councillor he would have experience of situations which would lead him to put down such an amendment as we have here today.

The implications of the amendment may prove more serious than resolving the actual problem Senator Naughten, and myself to some extent, have found at local authority level. The amendment contains implications for our decisions as a council also. We have the authority and the right to give planning permissions outside our county development plan and to attempt to hamstring An Board Pleanála is not the appropriate way. I know the intent, but I think the logical conclusions may not be as helpful as Senator Naughten believes.

Am I right in thinking that the difference between amendments Nos. 35 and 36 is that in the first amendment there would be an obligation on the board to hold an appeal if there was going to be a material breach of the local authorities development plan, while in the same circumstances an oral hearing would be obligatory? I accept what the Minister says, that local authorities can breach their own development plans, but they have to go through a very rigorous procedure. They have to get the agreement of the council. It is not a managerial function, it is a function of the elected members. They have to put advertisements in the paper alerting the public that they intend to make such an alteration. This is all quite right and proper because those are the procedures we go through when introducing the development plan and if the local authority wants to make a variation to that plan it seems perfectly logical to me that they should have to go through certain procedures of notifying the public.

Senator Naughten's amendments have a solid base because when the Planning Appeals Board wishes to dismiss the development plan they can do so behind closed doors. They do not have to alert the public. They do not have to seek the views even of the elected members who made the development plan in the first place.

The Minister is itching to get rid of a council but, at the same time, he wants to give them automony. One of the only autonomous functions the local authority members have is the making of the development plan. What will happen under this Bill is that the Appeals Board can just ignore the local development plan. They have to have regard to it, but what does that mean? It means they can ignore it if they wish.

May I take it that Senator Naughten is looking for acceptance of one or other of these amendments and not both of them? Amendment No. 36 would keep the Minister happy as well as everybody else. There would be no automatic obligation on the board to have an oral hearing. It there was going to be a major breach of the local authority plan, it would only be obligatory where they were requested to do so. That seems to me to be perfectly reasonable. There are instances I know of, I could cite a recent example, where the board can decide not to hold an oral hearing. The difficulty for the board is that until the appeal takes place it is very difficult to know whether a case is going to be complex and convoluted, involving very difficult issues. The Minister is now insisting that this thing should happen at one time which means the person making an appeal will have to decide, there and then, if he or she wishes to seek an oral hearing. I know the Minister is doing this in the interests of speeding up the procedures and I am not opposed to that.

I would like to give the Minister an example of what can happen. We had a most complex case recently where we sought an oral hearing. Part of the land which was the subject of the appeal was already sterile due to a previous application for planning permission. The board appeared to be unaware of this and they rejected the request for an oral hearing. I am satisfied that if the board had realised the complexities of the case they may have felt that an oral hearing would have been the best way of teasing out the problem; however no such facility will be availabe under this Bill. The decision on whether to have an oral hearing will have to be taken at the outset.

Amendment No. 36 should be accepted.

I have listened carefully to what the Minister said. I welcome the principle of the Bill. We all agree with the spirit of shortening the time involved in appeals before An Bord Pleanála. We have all heard of cases awaiting a decision by An Bord Pleanála for nine or ten months, and I am sure we have lost investment and jobs as a result.

My concern, which Senator Finneran appears to share, is that, after the best technical advice has been obtained and a development plan has been adopted with the unanimous backing of the council, An Bord Pleanála can drive a coach and four through that development plan. I have seen them do that in County Roscommon on a number of occasions in the last 12 months. In the last week planning permission was given for petrol pumps in a small rural village. It was appealed to An Bord Pleanála and the planning permission which the county council had unanimously agreed to was turned down. The Minister has more confidence in An Bord Pleanála than I have. That is why I want to insert this safeguard in the Bill. It was one of the reasons I pressed the Minister to accept the principle of an all party Oireachtas committee to which the board would be answerable with regard to policy, not individual decisions.

This issue has annoyed me, as a public representative. I come from a county where, in my 18 years on the council, only one section 4 motion was put. We approached planning matters in the best interests of the county. In those 18 years I have never seen planning become a political issue. If an application was received and it was found to be in order, it got the commitment of all the members of the council.

I will give another example relating to land zoned for housing. Roscommon County Council gave planning permission for housing, an appeal against that decision was upheld by An Bord Pleanála and the planning permission turned down, despite the fact that the council had zoned this land for housing 14 years ago. I do not want to stray from the amendment, but I make those points to back up my amendments which would strengthen this legislation.

I am impressed by the case made by Senator Naughten. He genuinely believes that what he is proposing is the proper way to go. Perhaps he would look at it from my point of view for a moment. We are dealing with requests for an oral hearing and I am being asked to prescribe the categories where there must be an oral hearing. Let us look at this from a Minister's point of view as distinct from that of a councillor and his adherence to the county development plan. There may be difficult cases involving a young family, such as unemployment or a tragedy in the family but I cannot prescribe for them here. I know such cases exist but I cannot legislate for exceptions. A breach of a development plan could be desirable because it might meet an oversight on the part of the council. As Minister I would not regard it as an absolute for an exception, not knowing what else may be ahead. I would rather leave the decision outside the ambit of primary legislation.

If, in time, I am proved wrong and there is a need for something like this, I give an undertaking that I will look at it again, but only in the context of many other considerations. I would have to take account of the human, financial and other developments which are the subject of planning and for which we want to get proper balanced and fair decisions.

Whenever there is a complex planning problem, there are two sides—the developer and the appellant, the people who want the oral hearing and those who do not. Innate in public representatives is the hope that the problem will go away if there is another system of managing it. Planning is a crunch question. One person is for a development and another against it. Inevitably, in a great number of cases, there is confrontation and somebody somewhere must take a decision. Maybe both sides can be accommodated but more than likely, one side will feel hurt or aggrieved. That is the planning process; it cannot be changed.

Taking all that into account, I do not want to be bound by creating exceptions in areas where, in my judgment, they may not compete in the league of demand, areas where a public or a private right could be hurt in ways we cannot foresee which could be greater than the one we are looking at now which is of a general nature.

Having heard about the planning discipline in County Roscommon, and with my view of Roscommon, I can think of nothing but people who live by the book and could not dream of upsetting a county manager——

——or deviating from the straight and true. I could not command that kind of high ground in Tipperary.

Amendment put.
The Committee divided: Tá, 14; Níl, 22.

  • Cosgrave, Liam.
  • Costello, Joe.
  • Doyle, Avril.
  • Hederman, Carmencita.
  • Hourigan, Richard V.
  • McMahon, Larry.
  • Manning, Maurice.
  • Naughten, Liam.
  • Neville, Daniel.
  • Norris, David.
  • Ó Foighil, Pól.
  • O'Reilly, Joe.
  • Raftery, Tom.
  • Staunton, Myles.

Níl

  • Bennett, Olga.
  • Bohan, Eddie.
  • Byrne, Hugh.
  • Byrne, Sean.
  • Cassidy, Donie.
  • Doherty, Sean.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Haughey, Seán F.
  • Hussey, Thomas.
  • Kiely, Dan.
  • Kiely, Rory.
  • McCarthy, Seán.
  • McKenna, Tony.
  • Mooney, Paschal.
  • O'Brien, Francis.
  • Ó Cuív, Éamon.
  • O'Donovan, Denis A.
  • Ryan, Eoin David.
  • Wright, G.V.
Tellers: Tá, Senators Cosgrave and Neville; Níl, Senators E. Ryan and Fitzgerald.
Amendment declared lost.

I move amendment No. 36:

In page 11, after line 5, to insert the following subsection:

"(2) Any appeal which involves or could involve a material breach of the zoning in the local authority's development plan shall, where requested, be the subject of an oral hearing by the Board.".

Amendment put and declared lost.

I move amendment No. 37:

In page 11, subsection (2) (b) (ii), line 16, after "Board." to insert "Such fee shall be returned if an oral hearing is not carried out by the Board.".

This is an eminently reasonable amendment. I could almost say I am sure the Minister will not disagree with it and will accept it. My amendment seeks to insert the words: "Such a fee shall be returned if an oral hearing is not carried out by the Board.". It is obligatory that a fee accompany the application and if no hearing takes place it means the appellant has not had the opportunity of having the full hearing and the money made available under the law should be returned to the person who transmitted it. Nobody should be discriminated against by having to contribute and then not be able to get value for money. At the very least it would seem following whatever paperwork was required that a substantial amount of the fee could be returned. This is a very reasonable amendment and I ask the Minister to accept it.

I support this amendment. I do not want to give the impression that I object to all these fees but I do object to the manner in which they continue to increase at the stroke of the Minister's pen. There was a huge outcry against these fees when they were introduced. We were told they were all very reasonable and so on but now we see the frequency with which they are increased and the fact that it now costs £50 to have an oral hearing and another £50 just to request it. Which of us would agree with the idea of sending off money for something and if we do not get the goods, they keep the money? That is what is happening in this case. I know the Minister will say the board have to do a great deal of work and research when deciding whether to hold the appeal and that the fee is to cover it.

When we last discussed this matter the Minister gave us an outline of the costs of running the Appeals Board, having oral hearings, etc., and he made the case that this was the cost to taxpayers and he had to have concern for them. We are all concerned for the taxpayers because we are all taxpayers and we do not want to see costs getting out of control but the Minister never made any reference in his contribution to the benefits accruing to a developer. Developers do not put in applications to carry out developments unless they are going to increase the value of their property or, more generally, if they stand to make a good profit on it. I have no objection to that but I object to the Minister's suggestion that instead of the developer paying the major portion of the costs of the Appeals Board procedure, oral hearings and so on the taxpayers are paying. Why does the Minister not increase the charges to the developers? Why does the not increase the charges for major commercial developments? There is a whole range of areas where the charges could be increased if that is what the Minister wants. I am not advocating that but I was distressed on the last occasion when the Minister put forward this view because it is symptomatic of his whole fundamental thinking. If a third party, An Taisce, a prescribed body, the Office of Public Works or Bord Fáilte get involved in making an appeal against some hideous permission which has been given as a result of a section 4 motion by some very irresponsible local authority they will not make any financial gain as a result. They are there purely to protect the status quo, and to assist the Minister and the Department of the Environment.

I quoted from a booklet last week which stated that it is our obligation and duty to have a concern and care for the environment. These people are not going to make any money out of it and yet when they ask for an oral hearing they do not get it and the board keeps their money. It is a bit Irish to say the least of it. The Minister should have a look at the other charges. With regard to this one, he should see that the money is returned if the request is not fulfilled.

We have covered a wide area again considering that the debate so far has not related to the precise amendment.

Planning fees have been increased substantially over recent years. We now have the building regulations and, depending on the type of development, a fire certificate, is required; the costs are in the region of £1.75 a square metre. Overall, the level of fees for planning applications, and subsequently for planning appeals, are reasonable.

About 20 per cent of the total cost of running An Bord Pleanála is provided for in the fees. There is no getting away from the fact that taxpayers pay 80 per cent of the cost of the provision of this system. The Senator is asking me, in a situation where the people who are directly involved contribute about 20 per cent of the overall cost, to reduce that amount and to increase the amount contributed by taxpayers.

With regard to refund of the fee paid by a party to an appeal who seeks an oral hearing, one would have to assume there were very solid reasons for requesting such hearing. The board would take into account all of the circumstances and decide whether an oral hearing was required and on foot of that decision it would be appropriate to write to the applicant in a case where an oral hearing was not allowed. All considerations to determine whether one should have the oral hearing would have been gone through at that stage. If you require the board, in primary legislation, to refund the £50 which was submitted on foot of the request for an oral hearing, somebody else must pay and I would like to be told who is that other person.

The request for an oral hearing is made in good faith. A fee is required for that request. If the fee is not paid that request is not considered. An appeal without the fee invalidates the appeal but if the appeal is refused the money is retained. We are splitting hairs here when the Minister says that the person who makes the request should not get their money or part of it back and brings it into the context of the taxpayer having to pay for it. We are concerned with the increase in the amount of money required in recent years for appeals. There is a need to ensure fairness in the system. The argument is that unless the request for the appeal is accompanied by the fee then it is not permitted under any circumstance.

The Minister is being a little simplistic when he turns around and asks me who should pay for it.

We had better start to face those realities, otherwise it is only a pretence.

It is rather an unusual case. The Minister seems to be making the point that it is desperately difficult for the board to decide, not just on the appeal, but on the simple fact of whether they will hold an oral hearing. Because the issue is so complicated for them it takes time for the board to go through the papers and so on. The Minister is making a very good case perhaps for going back to having an automatic oral hearing if such is requested. I do not know if that is the case the Minister meant to make and I suspect it is not but the Minister does not realise the extent to which he gives away his fundamental approach to this whole matter. The Minister's Department — and I can only assume the Minister supports them — brings out these excellent briefing sheets by ENFO which is an offshoot of the Department of the Environment. These briefing sheets tell us to promote care for the environment and the most recent one is called Planning Anew. It makes it quite clear: remember you are supposed to get involved, it is your right and responsibility, do not be afraid to go it alone, you can play a part in creating a better environment, planning is everybody's business, it should be seen as a duty as well as a right, an opportunity to help create a better environment.

At the same time, the Minister wants to put this cripping burden on a person who decides to take the suggestion here of going it alone. It is £50 to ask for an oral hearing which is a lot of money. The Minister wants people to be involved, to have the courage of their convictions, and the guts if necessary, to ask for an oral hearing and go it alone as suggested in this leaflet but now he is putting forward the argument that they should sustain the costs. The Minister does not seem to realise that a good environment is a financial benefit to the whole community and that the whole community is prepared to pay for having a good environment.

The Minister and his Government make us pay for all sorts of things we do not want. Most people want a good environment and are prepared to pay for it. The Minister is trying to drag it down to the lowest level; in other words, every time a person wants to have an oral hearing they should be thinking of the costs involved and the fact that only 20 per cent are covered by the fees and 80 per cent is borne by the unfortunate taxpayer. If the money was spent as well in other areas as it is in this area, the country would be a better place.

What I have to say sometimes may not necessarily be popular. I am not setting out to be popular.

The Minister does not want to be rash.

What I am saying happens to be the truth. For too long and too often contributions from Senator Hederman and others tended to suggest that the Government ask us to pay for many things we do not want. Can the Senator tell me what she does not want in the Department of Education, the Department of Health and the Department of Social Welfare because it is very easy to talk in hypothetical terms? I would be waiting a long time in this House before Senator Hederman would say abolish this service or abolish this demand. I have to be fair to everybody. I am trying to provide for a system where a person is not obliged to look for an oral hearing but when they do, they are obliged to submit part of the cost. It would frighten Senators if the appellants had to pay the true costs. I am not prepared to do that. I will not ask people who request an oral hearing to pay the full costs; I am not asking them to pay half the cost. I am asking them to make a contribution towards the overall cost. I am not going to deceive this House by telling Senators this money can be found somewhere else

In the best, independent planning system which will allow for a good, sensible, planned, balanced development, and provide for the rights of individuals to object, there is public participation, public contribution and it is supported willingly by the taxpayer. That is the system we have.

The Minister will not have to wait more than half a second for me to tell him what I do not want. I do not want an incompetent, inefficient centre of bureaucracy or a Euro-bureaucracy which will not introduce the idea of subsidiarity. That is where I see the most waste of our resources.

Amendment put and declared lost.
Section 12 agreed to.
SECTION 13.

I move amendment No. 38:

In page 12, subsection (3), lines 8 to 10, to delete paragraph (a).

We have asked that the restriction should be deleted and that submissions could be considered by the board. I will say not more than that.

Amendment, by leave, withdrawn.

I move amendment No. 39:

In page 12, subsection (3), lines 11 to 19, to delete paragraph (b).

Amendment put and declared lost.
Section 13 agreed to.
Section 14 agreed to.
SECTION 15.

Amendments Nos. 40 and 41 are related and may be discussed together.

I move amendment No. 40:

In page 13, subsection (2) (a), line 10, after "instance," to insert "also having regard for the provisions of the Development plan, the provisions of any Special Amenity Order and any Tree Preservation Order relating to the area".

We are asking that regard should be had to the provisions of the development plan, the provisions of a special amenity area order and any tree preservation order. As I understand it, tree preservation orders are not included in the original legislation. Since there are not many such orders, as the Minister is aware, it is reasonable that consideration should be given to this point.

Amendment No. 40 would require An Bord Pleanála when exercising their power under section 15 of the Bill to have regard to the development plan of the planning authority concerned and to any special amenity area order or tree preservation order relating to the area in question.

Amendment No. 41 differs in that it specifies special amenity area orders and tree preservation orders as the matters to which the board would have to have regard. Section 15 (2) as it stands requires the board to deal with cases under that section by reference to the considerations they would take into account in dealing with an appeal de novo. These considerations are the proper planning and development of the area concerned having regard to the provisions of the development plan and any special amenity area order relating to the area. To that extent, therefore, I consider that these amendments are unnecessary.

Planning authorities and An Bord Pleanála would clearly have regard to the provisions of a tree preservation order when considering a planning application or appeal, although the planning Acts do not expressly require them to do so. I do not believe that this proposal would establish a formal requirement for the board to have regard to tree preservation orders only when exercising their power under section 15. It is an appropriate approach to what is a general question concerning the standing of such orders. We would be happy to consider this matter in a future general review of planning law, but I do not think it would be appropriate to accept the amendment at this time.

Is the Minister confirming that they must have regard to the development plan and the amenity area order but not to the tree preservation order? I cannot understand why the Minister would suggest that. He then went on, rather helpfully, to say he might introduce such a provision in future legislation. Why wait for future legislation? Is this not the right time?

Section 15 deals with a small number of appeals. The consideration the Senator is suggesting is something to be considered in a broader context. I will give it consideration in the context of a future planning Bill. The Senator returned to a question we dealt with earlier, that is, putting into primary legislation a requirement covering proper planning considerations. The Senator is giving priority to a particular consideration. That should be done in a broader context because it means ultimately that you are giving priority to one type of development and not specifying others. In planning terms there is a whole range of planning considerations that are important in the determination of appeals. Singling out a particular area which is already covered and leaving out hundreds of other considerations at the same time is not the way to approach it.

Amendment, by leave, withdrawn.

I move amendment No. 41:

In page 13, subsection (2) (a), line 10, after "instance," to insert "and regard being given to the provisions of any Special Area Amenity Order and any Tree Preservation Order".

Amendment put and declared lost.
Section 15 agreed to.
Sections 16 and 17 agreed to.
NEW SECTION.
Amendment No. 42 not moved.
Section 18 agreed to.
SECTION 19.

Amendments Nos. 43, 47, 48 and 50 are related. Amendment No. 46 is consequential on amendment No. 47 and all may be discussed together.

Government amendment No. 43:
In page 15, between lines 10 and 11, to insert the following subsections:
"(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.".

These amendments are concerned in the main with time limits for taking enforcement action under the Planning Acts. Certain powers that planning authorities can use against unauthorised development or development which does not conform to the terms of the relevant planning permission are subject to a five-year limit. For example, an enforcement notice under section 31 of the 1963 Planning Act can be served in respect of an unauthorised development only within five years of the carrying out of development. However, other enforcement powers such as the warning notice under section 26 of the 1976 Act are not subject to any time limitations. The open-ended nature of some of the enforcement powers gives rise to serious practical difficulties, particularly in the area of property transactions.

Effectively the existence of these open-ended powers means that the planning history of any property has to be checked right back to 1 October 1964, the date on which the 1963 Planning Act came into operation. This is very often difficult, time consuming and expensive and is likely to be even more so as 1964 recedes further into the past. I am proposing, therefore, that we should bring about greater clarity and consistency in relation to enforcement powers by putting a five-year time limit on the use of these that are currently open-ended. I am satisfied this will not adversely affect the ability of planning authorities to police the proper planning and development of their areas because any unauthorised or non-conforming development or use that has not come to attention or been the subject of enforcement action within five years is most unlikely to be problematical from the point of view of the proper planning and development of the location concerned.

Amendment No. 43 will put a five-year limitation on 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 planning permission grant. That 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 conditions attached to a planning permission.

Amendment No. 47 proposes 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. 48 would place a time limit of five years from the date of the relevant contraventions on applications to the courts for an order under section 27 of the 1976 Act. Amendment No. 46 is a minor consequential drafting change arising from these amendments.

It is my intention that these new time limits generally will not come into operation until the start of 1994 so that planning authorities could take action in the intervening period in relation to any longstanding planning infringements of which they are aware.

I would like to explain also that these proposed time limits on planning enforcement will not affect local authority enforcement powers under other legislation. For example, a fire authority's power under section 23 of the Fire Services Act, 1981 to seek a High Court order restricting or prohibiting the use of land or a building where it considers there is a serious fire risk posing danger to people will be unaffected. These amendments meet the concern underlying amendment No. 50 from Senator Costello and others. It should not be possible to challenge the validity of a development after an unduly long period and I ask the Senator to consider withdrawing the amendment.

Finally, amendment No. 47 also contains another amendment of section 26 of the 1976 Planning Act. As that section stands at present a warning notice in relation to unauthorised use of land can be served only when the unauthorised use is taking place. The amendment will allow a notice to be served also when a planning authority considers that an unauthorised use is likely to be made of the land and will make it an offence knowingly to assist or permit the commencement of unauthorised use in contravention of the warning notice. I believe these changes will bring about a significant improvement in the warning notice procedure as it relates to unauthorised uses by allowing planning authorities to take pre-emptive action in the same way as they can in relation to anticipated unauthorised development.

The Minister has used arguments which made this seem very reasonable and straightforward, but many of us have an intimate knowledge of the enforcement problems for local authorities. I gave earlier the very high figures for unauthorised developments or developments seriously in breach of the planning permission given either on appeal or by the local authority. We know we have a fairly serious situation on our hands. We also know as members of local authorities the very grave problem of understaffing in local authorities. Legal departments are always understaffed.

There are also very serious practical difficulties in the courts. It takes a long time to get cases into court and there is an unsympathetic attitude on the part of some district justices or High Court judges in appreciating the pressure on local authorities because of these time constraints. If an unauthorised development has been in existence for five years, that precludes the court from taking action. In some instances it is not actually laid down but the courts seem to have decided that after five years have elapsed they should not prosecute or find somebody guilty of the offence. The Minister made the point that if authorised developments do not come to the notice of the local authority for five years they cannot be very serious. I accept that, if it is a major development.

I am sure the Minister is in favour of the living city and all the very laudable sentiments which are expressed from time to time by members of his Government. Very often a difficulty is that a developer in a sneaky way can expand an unauthorised development. I heard of a case only yesterday involving two houses in Wellington Road. There was authorised office use in one — it was pre-1964 and the house adjacent to it had been a family residence. The owner of the authorised office in the first house acquired the adjacent house on the same terrace. The local residents' association were unaware of any unauthorised activity in the adjoining house. They watched it very carefully. However, on one occasion a member of the residents' association went in to speak to some workman who was in the second house and discovered a wall had been broken through betwen the basement of the office house and the basement of the family house. They brought this to the attention of the local authority because we do not want another house used for offices. We are trying to keep the area as part of the living city. The local authority sent out their planning inspector but the owner maintained that the work had taken place a considerable time previously and that he had been using this other house for his offices.

You may say that if the local residents are interested and concerned they could give evidence. How can they give evidence as to exactly when this took place? Let us say that the developer brought the house a year and a half ago and carried out the unauthorised development. It then comes to the notice of the local authority but they are very reluctant to take action because they do not know if the residents will stand up in court and give the necessary information, but they finally decide they will take action. They probably get affadavits from the previous owner of the house. The local authority will have to send these documents to their legal department for examination and the local residents will have to be able to countermand them when the case goes to court. All this takes time.

Eventually the local authority decide to prosecute and as soon as the owner of the illegal development knows what is happening, he makes a planning application to stall the whole process so that the planning authority will not go ahead with the court action. If they try to go ahead with the prosecution, the courts will say they are unreasonable because the man has submitted a planning application to which the local authority or the Planning Appeals Board may agree. The courts will not give a decision on this case and will adjourn it. The matter has to go through the application and appeals procedures. This developer may be one of those people the Minister finds so irritating because they will not provide all the back-up information for their appeals. They want their case to drag on. The local authority refuse it, the Planning Appeals Board refuse it, the local authority go back to court and our friend, the developer, makes another application. This time he is only asking for two floors in offices instead of the three floors he asked for the first time, and so it goes on, sometimes for five years.

If it is the Minister's intention, which I am sure it is not, to facilitate these unauthorised developments and developers by bringing in the five year cut-off point and to make life easier for them, I would be very sad. I am certain that what he has in mind is to make the whole process more efficient. I suggest with the greatest humility, that of all the amendments, the Minister should not to go through with this one. I would be prepared not to speak on any other amendment if he were prepared to withdraw this one.

Why did he bring it in at this late stage? Who made representations about it? Why was it not in the Bill when it went through the Dáil? Would he not consider that the advantages gained by making life easier for the solicitors, because they will not have to go back to October 1964, are greatly outweighed by the disadvantage he is imposing on people who are endeavouring to assist the local authority to prevent illegal developments taking place? I would urge the Minister to drop this amendment.

During the debate in the Dáil I indicated that I was trying to find a suitable amendment to cater for the kind of situations I have outlined. Deputy Howlin put down an amendment in the Dáil containing the same type of aspirations. We are trying to meet a certain type of problem.

It is an outrageous perversion of everything I have said to suggest that this amendment is introduced to facilitate people who want to pursue a course of unauthorised development. Not only am I making it more difficult to do that, but I am imposing a new regime in that fines for offences in this area are astronomically different than anything ever provided in planning law. Let us get rid of the notion that we want to facilitate unauthorised development.

The enforcement procedures only have to be initiated within the five years. Whatever takes place after that can go on as long as necessary, whether there are court developments or otherwise. This amendment is in response to representations and is designed to achieve our own objective. In some cases it was necessary to go back to 1964, and that took a considerable time. We need to regularise this. In no way does this amendment facilitate unauthorised development. In fact, if you combine all the features of this Bill, you will find that unauthorised development is being outlawed in a more significant and substantial way than ever.

This is the most serious change in the Bill. I can only repeat my plea to the Minister to drop it. The Minister claims that it is a perversion of his views to assert that he wishes to facilitate unauthorised developers. I am certain that it is not his intention, but the unwitting outcome may be that that is precisely what will happen.

The Minister makes the very good point that only the initial stages will have to be taken. To what initial stages is he referring? I do not know exactly how far it will have to go. As soon as a planning application is submitted, that puts a stay on the local authorities. If a planning application has been made, you will not be able to persuade the legal department to take legal proceedings because they know what will happen. Could the Minister explain what he means by "initial proceedings"?

I take the point about the astronomical new fines but may I point out that astronomical fines are not worth anything unless the cases can be prosecuted in court? By introducing this five year bar, the Minister is making it far more difficult even to get them fined sixpence. That is the reality. Having astronomical fines will be of no value if they are not prosecuted and we cannot get the judges to impose these fines. If five years is to be the cut-off period, we may never reach that position.

What is the great and deep concern for legal persons having to go back to 1964? Is that not what a lawyer is for? If you employ a solicitor to buy your house, do you not expect him not only to go back to October 1964 but to the date the house was built? My house was built in 1834 and my solicitor went back to 1834 to check it out. Senator Norris's house was probably built in the 18th century and he expects his lawyers to go back and check from the first legal document which was drawn up. That is what solicitors are for. I do not understand the grave concern and trauma about solicitors having to go back to October 1964. That is not a terrible burden on anybody.

Amendment put.
The Committee divided: Tá, 22; Níl, 4.

  • Bennett, Olga.
  • Bohan, Eddie.
  • Byrne, Hugh.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Haughey, Seán F.
  • Hussey, Thomas.
  • Kiely, Dan.
  • Kiely, Rory.
  • Byrne, Sean.
  • Conroy, Richard.
  • Doherty, Sean.
  • McCarthy, Seán.
  • McKenna, Tony.
  • Mooney, Paschal.
  • O'Brien, Francis.
  • Ó Cuív, Éamon.
  • O'Donovan, Denis A.
  • Ryan, Eoin David.
  • Wright, G.V.

Níl

  • Hederman, Carmencita.
  • Norris, David.
  • Ó Foighil, Pól.
  • O'Toole, Joe.
Tellers: Tá, Senators E. Ryan and Fitzgerald; Níl, Senators Hederman and O'Toole.
Amendment declared carried.

As it is now 5 o'clock I am required to put the following question in accordance with the Order of the Seanad of this day: "That the amendments set down by the Government for Committee Stage and not disposed of are hereby made to the Bill, in respect of each of the sections undisposed of that the section or, as appropriate, the section as amended, is hereby agreed to in Committee, that the Schedule and the Title are hereby agreed to in Committee, that Report Stage is hereby completed and that the Bill is hereby passed."

Question put and agreed to.

A message will be sent to Dáil Éireann stating that the Seanad has passed the Bill with amendments.

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