Amendments Nos. 226, 228, 229, 233 and 234 are related and they may be discussed together by agreement.
Planning and Development Bill, 1999: Committee Stage (Resumed).
SECTION 47.
Debate resumed on amendment No. 226:
In page 68, subsection (17), line 33, to delete "and facilities" and substitute "facilities and amenities".
–(Senator Norris.)
I was finishing by saying I felt that hospitals and schools should be included.
I support Senator Norris. We have seen the regrettable consequences in areas where there were major developments and no provisions were made for education, shopping or health facilities. The inclusion of education and health facilities is essential.
I gave a fairly full explanation why I made the decision on this. Senator Norris said he was surprised I said I did not believe schools and hospitals are needed. He may have only heard the latter part of the remark. I stated quite clearly that they are needed and this need will arise as a result of new housing developments. However, they are not needed to allow developments to proceed – infrastructure is needed to allow developments to proceed. Of course they are desirable—
It is a shade of meaning.
Perhaps. I reiterate the point as regards what Senator Henry said – if we were to include all the other necessary infrastructure mentioned such as schools, health centres, some would say churches, etc., housing developments would be extremely expensive and out of everyone's reach. This Bill is ensuring for the first time that infrastructure to be provided by the local authority will be allowed for by developers in proportion to the amount they need for new development. We cannot go further than that.
Amendment, by leave, withdrawn.
Amendment No. 227 is in the name of Senator Norris. Amendments Nos. 231 and 232 are cognate and amendment No. 235 is related. All may be discussed together. Is that agreed? Agreed.
I move amendment No. 227:
In page 68, subsection (17)(b), line 35, after "provision" to insert "and use".
This amendment proposes to include the words "and use" and refers to continuous use. It deals with sustainability, which we have discussed throughout the Bill, and maintenance. It is a reasonable amendment at this point.
As I said before, I do not think any Planning Act is the place to introduce the concept of user charges for any service, which is what these amendments would entail. Therefore, I cannot accept these amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 228 and 229 not moved.
Government amendment No. 230:
In page 68, subsection (17)(b), line 36, after "facilities" to insert "and landscaping works".
This amendment permits local authorities to charge development contributions for landscaping works which they carry out as part of the provision of public facilities like open spaces and recreational areas. While landscaping may have been covered by the power to charge development contributions for ancillary works under paragraph (e), I felt it was important to clarify it so there was no doubt.
I congratulate the Minister on including this amendment. The landscaping taking place on many developments, such as roads and other public works, has made an enormous difference. It is good to see the Minister has covered it in the Bill.
I am glad this amendment is included. It is in the spirit of some of the amendments put down today. It is important to humanise what could otherwise be quite impersonal areas. Some degree of landscaping makes these developments far more attractive. It is a fairly recent development in Irish life, particularly in business parks, housing areas, etc. It is important and given our bullish economy we should be able to afford these human notes of graciousness and civilisation. I compliment the Minister on including it in the Bill.
Amendment agreed to.
Amendments Nos. 231 to 235, inclusive, not moved.
Question proposed: "That section 47, as amended, stand part of the Bill."
The Minister spoke about contributions for infrastructure. It is wrong that a local authority will demand a contribution, for example, for parking because that parking may not be provided inside the development but could be a quarter of a mile away. I have discussed this with a number of people who have carried out developments, made a contribution and received no benefit. It particularly arises in relation to parking. Will the Minister consider linking contributions to the development? It is a straightforward matter and I am sure the Minister has come across it. It recently happened in Galway in a development where a substantial contribution had to be made for parking outside the building which was of no benefit to the person involved. No other infrastructure was involved and the nearest car parking provided was in the region of 500 yards away.
I understand the point the Senator is making. The old system of development contributions which operated in that way is being abolished by this Bill. All contributions will be charged in accordance with the scheme in respect of infrastructure provision generally which will include car parking. Even under the old system if people provided their own parking spaces – it was outlined how much it cost per square foot for different types of businesses – they were exempt from the charge. The new system will allow for transparency as regards charges.
I suggested there should be a relationship between the charges and the benefit which would accrue, particularly in the case of parking. Where a developer can provide car parking, it is in a green area. However, in the middle of the city, it is virtually impossible to get parking beside a development. Is there a way of linking the contribution to the benefit? If there is not, I will bow to the Minister's knowledge. The abuse I have received about these contributions being charged in different parts of town makes raising it during this debate worthwhile.
There is no way that it could be reasonably tied down. It is similar to a person paying tax and not benefiting from it.
There is no policy in these Houses regarding tax distinction.
There is no way that it could be tied directly to parking. It can be tied down in relation to some other types of infrastructure, but not regarding car parking. However, the system will be more transparent and if money is made available, it will be at a rate decided by the local authority. It will be applied for the purpose for which it is collected.
Question put and agreed to.
SECTION 48.
Government amendment No. 236:
In page 69, subsection (4)(a), lines 25 to 36, to delete subparagraphs (i) and (ii) and substitute the following new subparagraphs:
"(i)Subject to subparagraph (iii), application for leave to apply for judicial review under the Order in respect of a decision referred to in paragraph (a)(i) or (b)(i) of subsection (2), shall be made within the period of 8 weeks commencing on the date of the decision of the planning authority or the Board, as the case may be.
(ii)Subject to subparagraph (iii), application for leave to apply for judicial review under the Order in respect of a decision referred to in paragraph (a)(i) or (b)(ii) or (iii) of subsection (2), shall be made within the period of 8 weeks commencing on the date on which notice of the decision was first published.".
The amendment is a minor adjustment to the time period within which an application may be made for judicial review of decisions of the planning authority and the board. The Bill currently provides that an application for judicial review may be made within a period of eight weeks from the date of the decision of a planning authority on a planning application. For the other matters covered by the section, which are decisions by a local authority on its own development, decisions by the board on appeals or referrals on local authority owned development which is subject to EIA and on acquisitions of land by local authorities, the time period of eight weeks runs from the date of publication of the decision.
The amendment makes a simple change to that by providing that the eight week period will run from the date the board makes a decision on any appeal or referral. This will then be the same as for decisions of the planning authority on planning applications. The board notifies persons within three days of its decision so that the date of the decision is an appropriate and certain one on which to base the period.
The second paragraph provides that the eight week period will run from the date that the notice is published of decisions of the authority on its own development and of decisions of the board on local authority development which requires an EIA and decisions by the board on compulsory purchases by the local authority. This will reflect the fact that the decisions on compulsory purchases, for example, are normally notified by newspaper notice. It is, therefore, a more appropriate starting point for the eight week period than the actual date of decision.
The amendment makes sense and I compliment the Minister on introducing it.
Amendment agreed to.
Amendments Nos. 237 to 239, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 237:
In page 70, subsection (4)(b), line 18, to delete "substantial" and substitute "sufficient".
The amendments are closely related. The idea behind them is that the word "substantial" could be taken to mean exclusively property. The word "sufficient" would mean that issues which may involve property but which are not necessarily regarded as relating to finance or property would be addressed.
The amendments seek to amend the requirement in the Bill that a person must have a substantial interest in a matter to apply for judicial review. Amendment No. 237 would replace a "substantial" interest with a "sufficient" interest while amendment No. 238 would delete the statutory requirement totally. The amendments would have the same effect as Order 84 of the Rules of the Superior Courts under which an application must be made which already requires a person to have a sufficient interest. Amendment No. 239 would clarify that the substantial interest would not need to be financial or property.
The phrase "substantial interest" is wider than a mere property involvement. A substantial interest could mean that a person could personally be affected by a development or even that the person has taken an active part in the decision making process from the early stages and not lodged an objection only at the last minute. While I agree with the thrust of this amendment, any amendment to the judicial review provisions must be carefully considered. I must consult the Attorney General's office on any draft wording. I ask the Senator to withdraw his amendments so that the matter can be reconsidered on Report Stage in terms of whether it can be further clarified.
I am happy to withdraw them and I am grateful for the Minister's response. However, in common parlance and in the literature of this century, if you look at Soames Forsyth in Galsworthy's novel, A Man of Substance, it meant property and nothing else. This is the point of the amendments but I am grateful that the Minister is showing sensitivity in this area. I would be grateful if he can return to it on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 238 and 239 not moved.
Government amendment No. 240:
In page 70, subsection (4)(c), between lines 36 and 37, to insert the following new paragraph:
"(d)Where an application is made for judicial review under this section in respect of part only of a decision of–
(i)a planning authority referred to in paragraph (a)(ii) of subsection (2), or
(ii)a decision of the Board referred to in paragraph (b)(ii) or (iii) of subsection (2),
the High Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring to be invalid or quashing the remainder of the decision or part of a decision, and if the Court does so, it may make any consequential amendments to the remainder of the decision or part of a decision that it considers appropriate.".
Section 55(a)(v) of the Roads Act allows for judicial review of part of a road scheme order only. It is often appropriate for a court to order a change in respect of one element of a major road scheme in relation to one property, for example, while the rest of the road scheme can proceed. The amendment inserts a similar provision for judicial review of some decisions under this section, including decisions of the authority on its own development and decisions of the board on local authority development which requires an EIA and decisions of the board on compulsory purchases by the local authority.
It is not proposed, however, to extend this change to decisions by the authority or the board on planning applications or referrals. Planning applications usually relate to a specific plot of land and are not as amenable to being broken up into individual issues.
Amendment agreed to.
Question proposed: "That section 48, as amended, stand part of the Bill."
It may not be relevant to this section but I read recently that the Attorney General intended to set up a special division of the High Court to deal with judicial reviews in order to expedite them. I would welcome such a move and perhaps the Minister could tell the House what progress has been made in that area.
The matter is being considered by the infrastructural sub-committee of the Cabinet. No final decision has been made and it may not specifically involve a special division. A number of options are being considered, including judges with specialist knowledge. The matter is being considered in an effort to speed up the process.
I thank the Minister.
Question put and agreed to.
Section 49 agreed to.
SECTION 50.
I move amendment No. 241:
In page 71, subsection (2), line 17, to delete "may" and substitute "shall".
This amendment relates to the Minister consulting the authorities of religious denominations and then issuing guidelines. It is a "may" versus "shall" issue.
The amendment is identical to one discussed a few months ago when we were considering the 1999 Act. At that time I accepted changes that required me to prescribe the form of a record of protected structures and the Minister for Arts, Heritage, Gaeltacht and the Islands to issue guidelines to planning authorities in relation to the objectives which must be included in the development. However, this is a much more sensitive area involving consultation and co-operation with religious authorities and, therefore, I am not prepared to accept the amendment.
Amendment, by leave, withdrawn.
Section 50 agreed to.
Section 51 agreed to.
SECTION 52.
I move amendment No. 242:
In page 72, subsection (2)(b), line 38, to delete "2 weeks from the end" and substitute "6 weeks from the start".
This amendment is relatively slight and technical but it would allow submissions a full period for display plus two weeks. There would be no foreshortening of the period.
The amendment would limit the time that a person has to make submissions on the inclusion or deletion of a structure from the record of protected structures. The Bill provides that a person has up to two weeks from the end of the period of display of the proposed addition or deletion. A period of display must be at least four weeks. Therefore, a person will have six weeks plus to prepare and make their submission. The amendment would limit the time in which the submission could be made to a maximum of six weeks. The Senator might be defeating the purpose. I am happy the timescales set out in the Bill are fair and reasonable. Therefore, I cannot accept the amendment.
If the Minister is happy, who am I to cheat him of his joy?
Amendment, by leave, withdrawn.
Amendment No. 243 not moved.
Section 53 agreed to.
SECTION 54.
I move amendment No. 244:
In page 73, line 22, to delete "may" and substitute "shall".
I may be on slightly firmer ground here and I may find an echo of sympathy from the Minister. Section 54 reads:
Where a structure, a specified part of a structure or a specified feature within the attendant grounds of a structure is included in the record to protected structures, its inclusion may be registered under the Registration of Title Act, 1964, in the appropriate register maintained under that Act, as a burden affecting registered land (within the meaning of that Act).
I believe the word "shall" should be included rather than "may". There may be a reason the Minister feels differently.
Of course there is a reason. I went into this in great detail when we discussed the 1999 Act. When this amendment was proposed during the discussions on the 1999 Act, I explained that requiring the planning authority to register the status of all registered or protected structures would be a laborious process and would impose a huge administrative burden on both the planning authorities and the Land Registry. The Law Society is considering how best to bring to the attention of the buyers and sellers of property that a building is actually protected. This will include measures such as ensuring that the record is available to the public and the Law Society issuing practice guidance to deal with this issue. Together with the changes proposed on including details of the proposed structures in the registers, these will cover all the protected structures, including most urban property which has never been registered. The Senator may recall that I made that point during discussions on the 1999 Bill. This might not cause such great difficulty in rural areas but, because of the lack of registration of properties in urban areas, it would cause horrendous difficulties. I am going as far as possible on this issue.
I have forgotten the content but I do recall the Minister making that distinction. Since it is a burden affecting registered land, if one buys a property they should have easy access to that information. Their attention should be drawn to this as a matter of course. I know there is this notion of caveat emptor, let the buyer beware. However, it would be wrong if one were to buy a property with a specific purpose in mind and then discover it was registered as a listed building. This could be a disaster for that person.
Amendment, by leave withdrawn.
Section 54 agreed to.
Sections 55 to 68, inclusive, agreed to.
SECTION 69.
Government amendment No. 245:
In page 80, subsection (1)(a), lines 13 and 14, to delete "or desirable".
Ministers do not generally admit to being somewhat embarrassed about moving an amendment. This is a slight cause for embarrassment because after the Houses completed consideration of the recent Planning Bill, the Office of the Attorney General advised that, because compulsory acquisition is an interference in the constitutional rights to property, it should only be legislated for where necessary. The desirability of acquiring a structure for its protection is not a sufficiently objective criterion on which to base this interference in property rights. The Office of the Attorney General suggested that the words "or desirable", which had been proposed as an Opposition amendment and which I accepted in a slightly different form, as a reason to make a compulsory purchase order to acquire a protected structure should be removed. This amendment deletes the offending words.
This is a pity and I am not sure this is the best advice. We had a row years ago about property rights and Members with a legal background were of the opinion that there was duty towards the public good. I respect the advice the Minister has been given. However, it is just an opinion. I would like to think that at some stage a Government will take on this notion of property rights as being so very powerful.
This will be addressed in Part V if we reach it.
I am worried about the meaning of the words "where necessary" and I am not nitpicking. Must we wait until the structure is in danger of total structural collapse or ruin or can we intervene earlier? The Minister's advisers are nodding. That is all right, but many people would argue that this interference is not necessary until a structure is about to fall down. They would say that it may be desirable but we are not here to co-operate with those desires. I am pleased the Minister is considering this issue. I want to put on record that there is a substantial body of opinion which believes that the public good and the provisions protecting the public interest in the Constitution override the rights of individual property owners. This is the line that should be taken.
The fact that a property is being acquired compulsorily means that the public good is overriding the rights of the individual. However, one must be careful how this is achieved. In relation to Senator Norris's previous point, a structure does not have to be falling down. Section 69(1)(a) proposes that a planning authority may acquire a structure where "it appears to the planning authority that it is necessary or desirable to do so for the protection of the structure". It is pro-active and preventative. Sometimes local authorities do not move as quickly as they should in this area but they have the right to do so.
Amendment agreed to.
Section 69, as amended, agreed to.
Sections 70 and 71 agreed to.
SECTION 72.
I move amendment No. 246:
In page 82, subsection (2)(a), lines 6 and 7, to delete "the Minister for Agriculture and Food" and substitute "the Minister for Agriculture, Food and Rural Development".
Amendment agreed to.
I move amendment No. 247:
In page 82, subsection (42), lines 10 and 11, to delete "the Minister for Agriculture and Food" and substitute "the Minister for Agriculture, Food and Rural Development".
Amendment agreed to.
Section 72, as amended, agreed to.
SECTION 73.
I move amendment No. 248:
In page 82, subsection (3), line 42, to delete "the Minister for Agriculture and Food" and substitute "the Minister for Agriculture, Food and Rural Development".
Amendment agreed to.
Section 73, as amended, agreed to.
Sections 74 and 75 agreed to.
SECTION 76.
Acting Chairman
Amendments Nos. 249, 250 and 251 are related and may be taken together by agreement.
I move amendment No. 249:
In page 84, paragraph (a), line 8, after "any" where it secondly occurs to insert "appropriate".
Section 73, which involves the use of protected structures, states that a planning authority may "use a protected structure acquired by it under this Act or any other enactment for any purpose connected with its functions". That provision is far too broad because a protected structure could be used for inappropriate functions. Therefore, we must include the word "appropriate", as suggested in amendment No. 249, in the section.
Amendment No. 250 suggests the insertion of the phrase "provided such use is compatible with the preservation of the special qualities of this protected structure". What could possibly be wrong with that? Amendment No. 251 suggests the insertion of the term "provided it is for a use which is compatible with the preservation of the special qualities of this protected structure".
I have explained the specific relevance of amendment No. 249. Amendment No. 250 is quite similar and is designed to strengthen the provision. Amendment No. 251 refers to paragraph (b) and suggests that it should be altered to state that a planning authority may "sell, let, transfer or exchange all or any part of that protected structure" and the amendment suggests that this be enlarged, provided it is for a use which is compatible with the preservation of the special qualities of this protected structure.
It would be quite wrong to allow an authority to sell off a protected building if it was going to be used for purposes which were incompatible with its preservation or with the preservation of its special qualities. There is no doubt that there are some uses which would be quite inappropriate for specific buildings.
I support amendment No. 249. As the Minister pointed out earlier, our planning legislation is a great deal stricter than in some other European countries. One does see quite important structures used in a rather bizarre manner in other countries and I would like to think that our built heritage would be afforded the utmost protection. In my opinion, the use of the word "appropriate" would be much more suitable in this instance.
Section 73 permits a planning authority which has acquired a protected structure to use or dispose of it as circumstances require. The amendments would require the authority to ensure, when it proposes to sell or let the structure, that the new use would be appropriate or compatible with its protected status.
For the information of Members, planning authorities are bound by the objectives in their development plans to protect such structures. That position obtains regardless of whether an authority owns a structure, whether it sells it on or whether the structure is in the ownership of someone else. Therefore, the conditions under which a structure would be sold, let, etc., would include its protected status. If a planning authority can secure the protection of a building or a protected structure by selling it, it should be able to do so. It is important that authorities should be allowed to do this. For the reasons outlined, I believe the amendments are unnecessary.
I should also point out that if a protected structure is sold it remains on the protected structure list and is subject to the full rigours of Part IV of the Bill, including the need to obtain planning permission for any works which will affect its character. The intent of the Senators' amendments has already been catered for in the section. In my opinion, the amendments might, unwittingly, lead to a situation where a local authority with an opportunity to sell a building in order to protect it would not be able to do so. On that basis, I ask the Senators to withdraw the amendments.
I am somewhat dissatisfied with the Minister's reply. For example, the term "for purposes connected with its functions" could mean the provision of lavatory accommodation in a building that was once a church. That would not be respectful but it is permitted to do so under the section. I remember the case of a hotel in Longford under which a tunnel was built to connect it to a historic building where a number of lavatories were placed.
Everyone says that St. George's Church in my area is a wonderful building. It is a wonderful piece of sculpture but is was awful as a church. It was a horrible, bare, barren, empty, gloomy, wretched Hanoverian barn of a place. However, it may have become more cheery because I believe it was last used to host topless bingo. I do not believe that was a particularly sensitive usage for such a structure but it was alleged that it was done to generate money to pay for the steeple to be rebuilt. However, nothing has happened in that regard.
I will not press the amendment and perhaps we can return to this matter on Report Stage. However, it is still my opinion that there are certain functions which are incompatible with the dignity and conservation of particular buildings. Given that the Minister said that the section already deals with my concerns, I do not see any difficulty with accepting the amendments because they will provide reassurance to persons such as myself.
Buildings could also be put to uses which are not compatible with the preservation of their special qualities. Some of these buildings may be fairly ancient. From my involvement in the tourism industry, I have learned that considerable damage can be done by overuse and overexposure to the public. There are buildings which must be handled in a very sensitive way. I will not press the amendment but I ask the Minister to reflect on this matter before Report Stage.
With regard to Senator Norris's point, he should visit the County Hall in Wexford, which was the old jail and which was preserved and now serves as the council offices. The example of that building fits ideally into the type of situation envisaged in the section.
Absolutely.
I am not sure that the word "appropriate" is apt for inclusion in the section.
I am satisfied that the use of the County Hall in Wexford is quite appropriate.
I recently visited Gort, which is a beautiful town, and I spotted the local Church of Ireland church which has been converted into a library. It is absolutely delightful, well run and has a superb collection of books. I was amused, however, when I noticed that it contained a number of icons of the Blessed Virgin which had been donated by a grateful reader whose wife had enjoyed using the facilities. I then noticed some flowers in the baptismal font, I told the librarian that they were beautiful and I asked her if they were growing. She informed me that they were actually artificial flowers which had been brought in by some children who, she thought, had removed them from a grave. However, she left them there because some of the local people had been filling the former C of I baptismal font with holy water, blessing themselves on the way in to pick up a book and repeating the process as they departed. I thought that was lovely because it showed such respect for the spiritual experience of reading. However, she had to try to inhibit this because the local parson objected and it was still legally vested in the Representative Church Body. It showed a fairly grim lack of humour. It was a charming tradition which, although a loyal and devoted member of the Church of Ireland, I would have encouraged. It was wonderful, lovely, and an appropriate use of the church.
It was very shabby to remove the water and put in artificial primulas of all things. Even if they had been living plants it would have been better. I did not realise that the Church of Ireland had anything against blessing oneself.
(Interruptions).
Acting Chairman
Discussing the liturgical practices of the Church of Ireland is not relevant to the amendment.
Most of these places will have been churches and sensitivity has to be shown. Lighting emporiums, offices, houses and restaurants would be acceptable, but bingo and dancing would be a bit much, especially topless dancing – imagine having to mention it in the Seanad. Perhaps the Minister could examine it and see if any modification could be made.
Amendment, by leave, withdrawn.
Amendments Nos. 250 and 251 not moved.
Section 76 agreed to.
Section 77 agreed to.
SECTION 78.
Question proposed: "That section 78 stand part of the Bill."
Section 78 deals with grants to planning authorities. All of Part IV received a very good airing in the Seanad earlier in the year when the Bill on architectural heritage was put through. On that section, it is important that the resources are provided to the local authorities to carry out their functions under this Part of the Bill. Resources are scarce and often valuable parts of our heritage and culture do not receive the finances to address decay and to refurbish them. I urge the Minister to ensure that the resources are made available to the local authorities.
We have finished in half an hour what we spent one and a half hours debating. There are only nine amendments in Part V. The debate from 8 p.m. to 9.30. p.m. did not serve the House properly.
Question put and agreed to.
Amendment No. 252 not moved.
Progress reported; Committee to sit again.
Acting Chairman
When is it proposed to sit again?
Tomorrow at 10.30 a.m.