Amendments Nos. 23, 27, 29, 137, 141, 192, 386, 459, 538, 539, 558, 637 and 638 are related to amendment No. 13 and may be discussed with amendment No. 13. Is that agreed? Agreed.
Planning and Development Bill, 1999 [Seanad]: Committee Stage (Resumed).
SECTION 27.
I move amendment No. 13:
In page 17, line 14, to delete "96” and substitute “139”.
This amendment is one of a group of amendments which provide for corrections to the text of the Bill. It has been divided into two groups, corrections to references and corrections from months or days to weeks. There are also some corrections which must be made to wording but those amendments will be taken individually.
This is the first group of correction amendments to the text. They deal with incorrect references to sections, subsections and so forth. There is no change to the substance of the Bill.
Amendment agreed to.
I move amendment No. 14:
In page 17, between lines 30 and 31, to insert the following definition:
" 'existing establishment' has the meaning that it has in the Major Accidents Directive;".
Amendment agreed to.
Amendments Nos. 19, 25, 36, 73, 76, 110, 112, 116, 128, 131, 139, 147, 155, 161, 167, 274, 281, 318, 323, 347 and 348 are related to amendment No. 15 and will be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 18, between lines 15 and 16, to insert the following definition:
" 'in writing' means a letter by way of correspondence or electronic mail sent to a planning authority or board;".
These technology driven amendments could be described as the Nasdaq grouping. Amendment No. 15 proposes to insert a new definition for the phrase 'in writing' in section 2. I want to ensure that representation can be made to a planning authority or board by means of a letter or electronic mail. Electronic mail is now a normal part of business and social affairs. People do not have time to go to local authority planning departments which restrict the amount of time available to the public to see information on planning permissions. We should be as flexible as possible. Given that a large number of people have electronic mail, we should allow their observations to be made in that way.
Amendment No. 167 seeks to make a development plan available to the public. It states that where "a planning authority has an Iinternet site, its development plan shall be made available for inspection by the public on such a site". I presume all local authorities have an Internet site but I thought a development plan would be an integral part of it. The Minister may say he will do this by way of regulations or guidelines. We need a reference to a development plan to ensure planning authorities are up to speed on technological changes. Local authorities do not update their Internet sites as regularly as they should and one often finds that former members are listed as existing members. Those corrections must be made. It makes sense that a development plan is on the Internet site and this reference should be included in section 16.
I support the amendment. My amendments relate to the same subject. We are seeking to bring the planning process on to the Internet and to make it part of the electronic communication system which is increasingly being used. There are probably few areas of public business which lend themselves more easily or appropriately to electronic communication than the planning process. The potential for involving the public to a greater extent in the planning process through the use of electronic communication, particularly the Internet, is enormous.
By its nature, planning is a public process. A structure was set up in the 1963 Act which allowed people to go into a planning authority, examine a file and make their observations. One can recall the period of public display in the development plan process, the advertisements in the newspapers, the submissions made by the public and the amount of detail which had to be considered. We are creating in this legislation a couple of new layers in the planning process which will involve public consultation, such as the making of local area plans, strategic development zones, regional planning guidelines and the national spatial plan.
The highly based paper system of advertising, notices, etc. anticipated the arrival of electronic communication, although it did not do so at the time, because it lends itself easily to the Internet. There is no reason a person making a planning application cannot submit a disc and put it on the Internet so that others who want to look at the material can do so electronically and directly communicate their comments or observations. The same is true for the development plan. It should be available on the Internet so that people have the opportunity to make their observations directly to the planning authority. It might also give people the opportunity to submit as part of their observations their variation of maps which are part of the development plan.
Electronic communication has enormous potential to reduce the amount of paper and administration involved in the planning process. We should make explicit provision for that in the Bill. This Bill will see us through the planning process for the next quarter of a century. The computer and Internet access will be as common in every home in five or ten years as the television and the telephone are today and will be linked to them. We need to anticipate in the Bill the change that is taking place and will take place over the next decade in electronic communication. It will become part of people's everyday lives. The planning system must be refashioned so that it becomes part of the planning process. It has huge potential to make the planning system more accessible to the public. It is easy to convert it because the way our planning system is structured and designed lends itself to automatic conversion to an electronic form.
I ask the Minister to use the opportunity of this legislation to make the necessary preparations throughout the Bill to include that form of communication and to modernise and make more accessible the planning process through the new information and communication technology now available.
In the interests of making progress, I suggest that if the Minister agrees with an amendment - I do not know from his reaction whether he does or not - he should state that before we start discussing it. That might reduce the number of days we have to sit.
We can all speak very strongly on these amendments because, as local representatives are aware, the work in planning offices has almost tripled in the past couple of years. The complexity of planning applications has expanded greatly since the Bacon report. Apartment buildings are not as simple as one-off houses or housing estates. It is essential to have the development plan on the website. That is an essential part of the consultation process with the public and public representatives on development plans. However, that is very time consuming.
There should also be public consultation on other matters, such as waste management and by-pass roads, with a statutory period of time in which to make submissions. That should all be on the Internet.
While the work of planning offices has more than trebled, the corresponding staff levels have not. As Deputy Hayes said, they do not have time to deal with the public at the counter. Clerical and planning staff in planning offices are working flat out and do not have time to meet the public. The process suggested would be a means of overcoming that.
I do not want to waste a great deal of time - although I am not saying the contributions by Deputies Gilmore or Hayes were a waste of time - on other amendments with which the Minister is broadly in agreement. It would save us all a lot of talk if he could indicate that at the beginning.
I would be delighted to do that if members decided not to say anything as a result.
We will not say anything if the Minister agrees with the amendment.
We would need a person to interpret the body language.
I interpreted the body language as being positive, which is why I declined to speak.
I refer Deputies to section 224, which is an enabling section to allow the Minister make regulations on all these matters. I agree with the Deputies that, in so far as we possibly can, we should facilitate the use of modern means of communication throughout the planning system, which is what section 224 is designed to do. The Government and all parties are committed to the idea of e-commerce, e-government and so on. That is the reason we included section 224.
It would not be suitable to use e-mail for certain matters. There are particular statutory requirements in regard to certain notices, for example, which mean it would not be possible to give them by way of e-mail. The use of those forms of communication is covered in a general sense under section 224. If the Deputies withdraw their amendments, we will look at the specific areas to which they referred and see what amendments we can table on Report Stage to specify the use of e-mail in certain areas, while leaving the rest for the general regulations I will make. We will try to specify this in as many places as possible for Report Stage. We will then leave the areas where it is not possible to do that, for legal or other reasons, to the regulations. However, as I said, I accept the thrust of the amendments.
In regard to what Deputy Hayes said, it is fair to point out that not all local authorities are as far advanced in this regard as we would like them to be. On the other hand, some local authorities are making their planning applications available to the public on the Internet. Two local authorities are working on a pilot scheme where they will put, in addition to the application form, the maps and so on in three dimensional pictures on the Internet. Many people are not used to reading maps or one dimensional diagrams and are happier with a three dimensional computer model. Some local authorities are very advanced in that regard while others have not got off the starting blocks.
Section 224 allows us to introduce this concept in every section of the Bill. However, in deference to the Deputy's amendments, we will look at the specific areas they indicated before Report Stage to see what ones we can specifically include in the Bill and leave the rest to the regulations.
Amendment No. 36, tabled by Deputy Dukes, is probably better than mine. It states, "All reference in this Act to the making of submissions or observations, the publication of notices and the making of any other communications whatsoever shall include the use for such purposes of electronic mail". That is probably a better way to put it.
When the Minister says statutory provisions would prevent the use of electronic mail, is he referring to circumstances in which a person would have to receive a registered letter in reply to a specific objection? For example, I receive registered letters when I make a specific representation in writing, as a member of a local authority, on a file. The days of registered letters are over because it is now so much easier to communicate with people direct by e-mail. A great deal of unnecessary fuss is attached to correspondence.
People are away from their houses from 7.30 a.m. or 8 a.m. to 7 p.m. or 9 p.m., Monday to Friday. There is very little time available for people who do not have a real interest in their area to go into a local authority office, most of which do not open until 9.30 a.m., take lunch from 12.45 p.m. until 2 p.m. or 2.30 p.m. and close at 4.45 p.m. That is the greatest anti-working practice I have ever come across. I am referring here to my own local authority. It is almost impossible for members of the public to access information if they do not have another person working for them or ask a member of their family to do it. Is the Minister referring to registered letters when he says there may be some legal difficulty?
And public notices for applications.
It is not sufficient to send notices for applications by e-mail. Much of this is connected with the standards of proof that would be required if a case went to court. There probably would be no difficulty in 99 cases out of 100. However, we all know what happened in the past in relation to the standard of proof required in cases. That will have to be dealt with in legislation on e-commerce and so on. It also arises where fees have to be paid.
They could use credit cards.
Provided the person has a credit card. Specific notices must be served in certain cases in regard to planning which might require personal delivery. We might have to consider changing the law in certain cases in regard to the serving of notices. E-mail can be used across a range of areas, but legal issues may arise in some. We want to distinguish between them to allow for it where we can and leave it possible for the others to be included under regulation.
I welcome the Minister's remarks in so far as they go. I understand he will make regulations for the use of electronic communication, the Internet, etc., where he considers it appropriate, that is, it would be used as an add-on to the existing framework for communication in the planning process. I am not sure that goes as far as is necessary. We should replace the assumption underpinning the existing planning system that it is paper and office based. It assumes, for example, that anybody with a planning application in County Galway submits it to a planning office in Galway city, that the office communicates with the applicant by registered post or ordinary mail and that anybody who wants to look at the application must travel to the office. That working assumption is dying in every area of communication.
We need to make a leap in thinking from the traditional paper and office based system to an electronic based system. We also need to assume that the electronic system will be the basic system of communication in future. This would have a beneficial impact on many aspects of the planning system. First, the length of time involved in dealing with a planning application could be reduced. This would positively address many of the delays in the process. Second, it would enormously reduce the administrative and personnel costs. This would release people from the drudgery of paper shuffling that must take place in planning officers and allow them deal with planning issues.
Third, it would deal much more effectively with the issue of records. We will address this matter later. The Law Society made a lengthy submission regarding the difficulties encountered by its members in accessing planning records, etc., for the purposes of conveyancing. Fourth, there is the question of public involvement and transparency of the process.
We do not wish to create an additional means of communication, which would probably add to time, cost and delay, but to replace what we have with an electronic system. Perhaps interim measures should be introduced to allow for the period of time between now and when everybody is connected, whether it be by way of public Internet booths or whatever. We are still prisoners of the idea that everything needs to be done on paper in offices. We need to make a quantum leap away from that.
We are near agreement on these amendments. I understand the Minister has said if we can be more specific about what is proposed he will be happy to consider matters further. Perhaps a proviso should be included to the effect that everything not legally required can be included on websites or done through the Internet. Exceptions to this may be the legal requirements that notices must be served in certain instances or that notice to the public must be displayed on sites. These could also be included on websites.
Deputy Gilmore gave a good example of County Galway, a big county. Somebody may have to travel from Cleggan or Ballyconneely to the planning office to lodge an application and in the process they may clog up traffic in the city. It should be possible to lodge such applications through the web. I am disappointed to note that so many local authorities are not connected and I encourage the Minister to use his powers of persuasion to ensure they all become connected as soon as possible.
We must deal with the tremendous potential offered by websites in being able, for example, to process applications from the home or office. It is similar to acceptance of the telephone as a means of communication 20 or 25 years ago. At that time people thought they could not transact business unless they dealt directly with people face to face. They later found they could do their work as effectively over the telephone. As Deputies we have reached this conclusion. There was a time we had to travel around the constituency to meet people in pubs because there were no telephones. We can now do 95% of our work - I am doing 100% of mine - in our office and over the telephone.
We must advance with the modern technology that is available. In a few years websites and the Internet will be as user friendly as the telephone is today. There is no difference between the amendments proposed and what the Minister has said, other than that he must cover himself from the legal point of view. If we get assurances from him on this we can move on.
I have given that assurance a couple of times this morning. This is not an add-on, it is an incremental progression. We have a paper based system and it is not possible suddenly to go from that to an electronic system without making provision for the continuation of the paper based system as it is. Irrespective of what we might like to think and believe, I agree that most of us will, whether we like it or not, be IT proficient or else we will be left behind.
I am making provision to ensure that whatever advances occur in the planning system with regard to the Internet, intranets, etc., - there have been a number already - we will have the means by which we can make regulations to ensure that electronic data and information can be used by those who have access. It will be done by incremental progression. Between now and Report Stage we will look at all the areas where it can be introduced. We will also consider these amendments and propose others to ensure that in every possible case the electronic format can be used.
Some local authorities are advanced in this area but others are not. The one stop shop concept, which a number of authorities, including Galway, have adopted, will mean that people will in due course be able to contact their local area office by e-mail in respect of their planning applications, motor tax applications and so on. That is what those arrangements are designed for, or people can call to the office if they wish.
We have provided in the Bill to move from a paper-based system to an electronic format. We cannot discard the current paper system and I am not sure if we will ever be able to do so completely, but the Bill allows the Minister to make regulations relating to that matter. On Report Stage we will come back with the areas where we can do that immediately. Deputies are saying that if that provision was included specifically in the Bill at this stage it would at least create an ethos of moving on in the legislation itself. I have no difficulty with that and I will do it.
Section 224 provides for regulations where there are legal difficulties. Eventually those difficulties concerning encryption and other technicalities will be overcome and it will then be possible to have electronic payments and service of notices. It cannot be done just at the moment, however, and we cannot anticipate its introduction other than by providing the power to make regulations for it.
I accept that much of this involves a cultural change at management level within local authorities. I was surprised to hear the Minister say earlier that a number of local authorities do not even have Internet sites. Has the Minister produced a memorandum or guidelines to pressurise those local authorities to get their act together? As the Minister rightly says, there are many such opportunities. From next September, for instance, the Revenue Commissioners will be taking audits directly from accounts via the Internet and electronic payments will be dealt with in the same way.
Later, we will be discussing the issue of enforcement which is difficult to tie down. How does one ensure that notice is served on somebody? Another option would be to provide electronic mail for that purpose and it would be one of the most direct ways of doing it. Does the Minister have any information on the number of local authorities which have yet to put all their information on a website? A designated officer answerable to the Department should be dealing with this matter at local authority level.
When the Minister is examining the operation of section 224 he should keep a close eye on what is going on in other parts of the Government machine. Decisions that will be made about the validity of documentation in e-commerce will be important. In looking at that matter the Minister should make sure that planning information coming through the local authority system is kept as accessible as possible to the public. There is hesitation on the part of local authorities, for copyright reasons, to make available copies of photographs and maps. This point was touched upon in the Seanad debate. As far as possible, we should operate on the presumption that all documents relating to planning applications are made public. The Minister should be parsimonious in his approach to encryption and copyright - much of that matter is nonsensical anyway.
The curse of the e-mail is that everybody feels they can send voluminous scripts about every possible thing they can think of. I received an e-mail the other day which included the names of every Member of the Oireachtas on the top, and an apology that some people might have been left out. At the bottom, the statutory notice to the effect that this is a private document intended only for the addressee. The more that happens, the more nonsensical all these privacy rules appear to be. The Minister should be very parsimonious about confidentiality in these matters and err on the side of public availability.
I agree with Deputy Dukes about that. The hallmark of our system is its accessibility and openness. There are those who would argue that it is much too open and transparent, while others would argue the opposite. Any fair judgment of it, however, would say that such information is accessible. The difficulty of sending out maps and sketches, to which the Deputy referred specifically and which was discussed in the Seanad debate, will be dealt with and overcome when the Copyright and Related Rights Bill is enacted.
In relation to the more general question raised by Deputy Hayes, I do not want to give the impression that there are local authorities that do not use computer systems, but some are at a very early stage of developing websites and intranets. A considerable amount of work is being done, however, by a number of local authorities who are spearheading this experimentation in local government. A number of projects have been put in place through the information society project. The Local Government Computer Services Board is now very active in trying to ensure the standardisation of computerisation within local authorities for ease of communication between local authorities, and between the Department and those authorities. A considerable amount of work is being done, therefore. Some local authorities are very advanced and we are actively pursuing the concept of e-local government.
We are committed to the idea of being very advanced in e-commerce and electronic communications generally. There is an onus on the Government to do that. Before the end of this year, or certainly in the first quarter of 2001, we will develop e-Government and I hope that e-local government will follow shortly afterwards. Rather than having 112 local authorities devising and operating their own systems, some pilot work is going on to lead the way and that is advancing fairly well.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 18, to delete lines 16 to 20 and substitute the following definition:
" 'land' includes any structure and any land covered with water (whether inland or coastal);".
Amendment agreed to.
I move amendment No. 17:
In page 18, between lines 23 and 24, to insert the following definitions:
" 'major accident' has the meaning assigned to it by the Major Accidents Directive;
'Major Accidents Directive' means Council Directive 96/82/EC of 9 December, 1996, on the control of major accident hazards involving dangerous substances;".
Amendment agreed to.
I move amendment No. 18:
In page 18, between lines 30 and 31, to insert the following definition:
" 'material contravention' is where an application if granted would be in breach of a specific policy, or a specific objective and a specific zoning in a development plan, local area plan, an area of special amenity or a landscape conservation area;".
This amendment aims to include a definition of the term "material contravention". The term is widely used and known in the planning process but it is not defined in our planning legislation. There are two issues - one is the issue of definition and the other is the question of who decides when a material contravention arises. There have been a number of cases where applications have been submitted and where currently, in practice, the decision as to whether or not the application constitutes a material contravention is made by the county manager rather than by the elected members of the local authority, who make the plan in the first place. We need to define the meaning of material contravention and clarify in the legislation who makes the call as to whether or not a particular application contravenes materially the development plan, and whether or not the procedure for the making of a material contravention of the plan should be initiated by a council.
The amendment would define material contravention for the purposes of the Bill but the phrase "material contravention" does not appear anywhere in the Bill. For that reason, I am not accepting the amendment. The phrase "would materially contravene" is used, but it is not confined to planning applications, as the amendment would seem to suggest. For example, section 162 prevents local authorities carrying out development "which contravenes materially the development plan". Therefore, any attempt to define the concept, as the Deputy's amendment shows, is liable to exclude things and cause more problems than it solves. I would be reluctant to accept an amendment on that basis. The idea of "contravening materially" development plans, etc., is fairly well accepted and it has worked well in practice. Trying to define it could leave us in a situation where we would be creating a gold mine for certain individuals.
I want to stick to the issue of planning applications although I accept what the Minister said, that the phrase "contravenes materially" arises elsewhere in the Bill. When a planning application is submitted to a local authority and the county manager takes the view that it does not contravene materially the development plan but the members of the council, or even some members of the council or members of the public for that matter, take the view that it does contravene materially the plan, who makes the decision as to whether or not it is a material contravention and whether or not the process for the making of a material contravention should be initiated?
In the situation outlined by the Deputy, which relates to a planning application, obviously the manager has the final decision on any individual planning application as to whether or not it contravenes materially the plan. Obviously members of the council, the applicant or third parties can appeal that decision to An Bord Pleanála. If they are still not satisfied they have redress to the courts which will decide, but the decision on a specific planning application is a managerial function.
I want to stick with that point because this is something to which the Minister may wish to return on Report Stage. I accept and agree that the decision on an individual planning application is an executive function and it should remain so, but the decision on the specific aspect of an application which relates to the contravention of the development plan should be made by the council, which made the plan in the first place. For example, the local authority of which I am a member received a planning application for a mixed residential and office development on a site on which there had been office development but which had been zoned for residential development. The matter is a little complicated but, to make a long story short, the residential and office development was greater than either what had been originally zoned for or what had been on the site in practice. The country manager took the view that there was no material contravention of the development plan but the elected members of the council, or at least a significant number of them - the matter did not go to a vote but if it had, I suspect a significant number of the members of the council would have been against it - took the view that it did contravene materially the development plan. When the members of the council adopted the development plan, they had a particular zoned purpose in mind for that site and this application did not fit it.
It does not often arise that the manager and the elected members differ on an issue like this but since it is the members who adopt the development plan, it ought to be the members who, in the final analysis, decide the issue of interpretation of the development plan. Of course if it is a material contravention, it will be the members who must make the decision and it must be advertised.
I ask the Minister to consider this before Report Stage. There is a need to provide in the Bill for a reserved function on individual applications in order that where the members consider that a material contravention may arise from an application, the members would have, as a reserved function, the right to initiate the material contravention process. It would keep that aspect of it within the domain of the elected membership. I am suggesting that should be the case regarding planning applications and not that it should stray into the other considerations. The Bill should provide for such a reserved function.
If a policy decision is taken by the members of the local authority regarding an application such as the example to which Deputy Gilmore referred, which has its reference at the development plan stage, surely the manager must have due regard for that policy decision. For instance, if that case had gone to a vote and it was passed as policy to back up that which was stated in the development plan, how can the manager not accept that?
As I understand it, the case to which the Deputy referred specifically is before the courts and therefore I am somewhat constrained in what I can say about it. It is certainly something at which I can take a look. The general point is that the members adopt the development plan. They have a statutory obligation to do so. It is the executive function of the manager then to apply the plan. If he errs in law or otherwise in this regard, that error can be subjected to judicial review.
If we go down the route which is being suggested regarding individual planning applications, then I think I can see what will happen, that is, on every planning application which is controversial in any way the local protest group will immediately spring up and put severe pressure on all of the members of the local authority to declare that this is a material contravention and the manager should not grant the planning permission. If one leaves that avenue open, that is a real danger. I am not being facetious. One would end up in a situation where many of the applications would end up being reviewed by the members.
On the subject of section 4 motions, in County Meath, where members formed the view that the manager would not grant a planning application or, as in one famous case, where he was going to grant one and members did not want him to do so, the procedure was that once the members submitted a section 4 motion the manager then invoked section 26, the material contravention procedure. In such cases, public notices, etc., also had to be issued.
I am reluctant to go down the road of second guessing the planning authorities. Development plans are put in place by local authorities and instances of the sort under discussion do not arise that often. However, everyone must make their own decisions. In that context, members of local authorities are obliged to draw up their plans, the executives make decisions and the managers make decisions in respect of specific considerations. In addition, appeals can be made to An Bord Pleanála or judicial review proceedings can be entered into. I am reluctant to move away from that process.
I will withdraw the amendment but I intend to address this issue on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
I move amendment No. 20:
In page 18, between lines 32 and 33, to insert the following definition:
"'new establishment' has the meaning that it has in the Major Accidents Directive;".
Amendment, agreed to.
I move amendment No. 21:
In page 19, line 15, to delete "determination" and substitute "referral".
This amendment involves another correction. We are putting forward a number of these amendments to the Bill to either delete unnecessary words or substitute more correct wording. The amendment does not involve any change of substance, it merely involves deleting the word "determination" and substituting "referral", which is the correct term to use for a matter referred to the board under section 34(5). It is a technical amendment.
Amendment agreed to.
Amendments Nos. 22, 28, 307, 309 and 315 are related and may be discussed together by agreement. Is that agreed?
On a point of order, is there a new list of groupings?
I move amendment No. 22:
In page 19, between lines 16 and 17, to insert the following:
"(e) in the case of a referral under section 36(5) , the person who made the application for permission which was returned by the planning authority,”.
This matter was discussed extensively in the Seanad and on Second Stage in the Dáil and Deputy Gilmore has also tabled amendments in respect of it. My Department received complaints from the public about persons who make repeat applications for the same developments where the first application is under appeal, probably in an attempt to avoid third party involvement. What usually happens is that the original site notice is left on display and people passing are not notified of the change to the application. This matter was also raised with the Department by the Ombudsman because there were a few famous cases which were the subject of newspaper reports.
For those reasons, I have brought forward these amendments which seek to prevent people making multiple applications to the same development while the first application is still before the board. Deputy Gilmore's amendment No. 309 to section 36 is intended to achieve the same purpose. Amendment No. 22 provides that if an application is made for the same development or development of the same description as one that is currently under appeal before the board, the planning authority will have to return the application papers and refuse to consider it. If an applicant disagrees with a planning authority's ruling that the second development proposed is the same or very similar, he can seek a reference to the board to determine whether the applications are alike or whether the local authority is acting correctly.
Amendment No. 22 requires the tabling of a consequential amendment to the definition of "party to an appeal or referral" in section 2 and to the definition of "referral" because a new type of referral is required. I hope the amendment meets Deputy Gilmore's concerns and those expressed by the public. I request that the Deputy withdraw his amendment in favour of amendment No. 22, which is designed to deal with the same problem.
It may be pedantic to say so but we are discussing amendment No. 22 which refers to section 36(5). However, in my copy of the Bill section 36 ends at subsection (4)(b).
The Deputy is not being pedantic if he is correct. However, I am informed that amendment No. 315 involves the introduction of a new subsection (5).
Is amendment No. 315 being discussed with amendment No. 22?
Yes.
The Minister had me worried for a moment.
The Deputy had me worried.
I welcome the Minister's amendments and I will accept them in preference to my amendment. The Minister outlined the problem in this area, namely, a persistent applicant who wears everyone down in order to obtain planning permission. Individuals of this sort submit an application which is appealed to An Bord Pleanála and they submit another while the first is under appeal. It often happens that people who objected to the first application do not realise that a second has been made. This technique is used by determined applicants to simply wear down everyone - a planning authority, objectors, etc. - in the hope that they will obtain planning permission, sometimes by default. I am aware of one case where an application which was dealt with by different officials of the planning authority was successful but no one outside the authority knew what it involved and it was not appealed. That application slipped through the net despite the fact that it had been previously refused and that the board had also made a decision in respect of it. I welcome the fact that the Minister's amendment closes off this loophole.
Amendment agreed to.
I move amendment No: 23:
In page 19, line 27, to delete "209 or”.
Amendment agreed to.
I move amendment No. 24:
In page 19, between lines 29 and 30, to insert the following:
"(j) any prescribed body in relation to any appeal in an area zoned for amenity purposes or affecting any listed structures or architectural conservation areas,”.
This amendment is concerned with the part of section 2 where the party to an appeal or referral is defined. The section lists those - the appellant, the applicant, planning authority, etc. - who are party to an appeal. I am seeking that in regard to an appeal in regard to an area zoned for amenity purposes or that affects listed structures or architectural conservation areas prescribed bodies would also become a party to it. This would include bodies such as An Taisce, the Irish Wildlife Trust, Dúchas, etc., and it would help the process as they would automatically become parties to the appeal. They would receive notification of the appeal and be able to participate in the process if they wish.
What the Deputy is trying to achieve is already covered in the legislation in terms of the role prescribed bodies play in the process. The effect of the amendment, which is unintended, would be to automatically make such bodies party to an appeal or referral in certain circumstances. Currently, they must be notified if applications are relevant to them and they can participate in the decision-making if they wish. They also have a right to appeal a decision to the board under section 36 even if they have not received the required notification. The amendment would needlessly require the prescribed bodies to participate in all the stated appeals. They could also have to participate in any judicial review taken on foot of the appeal with all the related costs of court appeals and so on. During my consultations with many prescribed bodies they stated they do not have the people or resources to undertake the work they already must do and I am sure they also informed the Deputy of that. Making this compulsory for them would add hugely to their workload and expenses.
That was not the Deputy's intention but that would be the effect. Prescribed bodies have important rights of participation which are preserved in the legislation but the amendment would not add to them. More difficulties would be created for them unintentionally. I am aware of what the Deputy is trying to safeguard but huge obligations would be imposed on them that they would not be able, or in some cases might not want, to discharge. For that reason I ask the Deputy to withdraw the amendment.
Perhaps I am missing something but I do not follow the Minister's logic. As I understand it, prescribed bodies are notified by the planning authority when an application is relevant and then it is a matter for them whether they wish to make any observations. This section refers to appeals and referrals to the board which, by definition, are confined to those applications about which the prescribed body would already have been notified by the planning authority. The problem that arises is that there is no obligation to notify prescribed bodies of an appeal unless they are already a party to the original application by making observations or lodging objections.
That was the case in the Bill, as initiated, but an amendment was made in the Seanad to which I referred. Under section 36 there is an obligation to inform prescribed bodies even if they were not notified during the appeal. If a prescribed body has not been aware of a planning application under the terms mentioned by the Deputy, it still has a right to lodge an appeal. Perhaps we are at cross purposes. The Deputy is talking in terms of giving them a statutory right to be informed.
I am talking about a statutory right to be informed of an appeal. By definition, we are referring only to those applications about which they had to be informed by the planning authority. I understand they are informed if they have already made observations but if they have not done so they are not informed that there is an appeal. There is a limited number of circumstances.
We are at cross purposes. The fairest was to deal with this is for the Deputy to withdraw his amendment and table it again on Report Stage. I will try to re-draft an amendment or accept his then. He has a valid point.
Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 20, subsection (1), before line 1, to insert the following:
"'proper planning' shall include consideration of the aesthetic qualities of any place or structure liable to be affected by any development comprehended by the provisions of this Act, the aesthetic qualities of any development proposed in accordance with the provisions of this Act, and the aesthetic effects of any decision, or the determination of any appeal, made pursuant to the provisions of this Act;".
I propose to include a definition of one aspect of what "proper planning" might include because nobody is very sure what it means. There has been a concept around for many years that proper planning and development does not include any issue dealt with under the Environmental Protection Agency Act, 1992, and that it has no regard for environmental or aesthetic considerations. I believe it does. I am amused that a number of interest groups are getting cranked up because they have seen the word "environmental" in this legislation and they think a new and onerous set of conditions will be applied. The pharmaceutical and a few other industries are getting very exercised about this, and I am sure there will be others.
Quarries?
Quarries are a different day's work. Nobody could suggest a quarry has aesthetically appealing characteristics but they are part of the issue. The proposition now is that the Bill will do dreadful damage to various economic interests because buildings will have to be nice to look at as well as being adequate in terms of the proper planning and development of an area.
On the other hand, Ireland is full of people who believe their local planners, when it comes to housing, are excessively influenced by aesthetic considerations, such as the colour of roof tiles, the size of windows, the shape of doors and all such matters that make life such a joy for people in planning departments throughout the country.
It was brought home to me that we do not have a definition of proper planning. The Minister will reply, and he would be right to do so, by saying that proper planning is a concept which has been used since 1963 and has, on the whole, been successfully applied. It is a moot point which can be argued. By and large, it does not seem to have caused a huge problem. I am trying to make clear that the aesthetic qualities of development should be taken into account when considering proper planning. I know this is a difficult area and is subjective.
There are some structures which cause one to wonder how planning permission was obtained. I will not say where it is, but I stopped to get a bite to eat the other day in a certain hotel on the outskirts of a city. It reminded me of a super deluxe jumbo version of what we used to call workhouses in the old days. It was a modern construction in dark grey stone and was completely out of place in its location. Perhaps the Minister knows to what I refer. Someone gave planning permission for that and, to my mind, they should have been allowed to refuse it because it is an ugly pile of a building. If there were no other reason for refusing it, that should have been sufficient. For that reason——
It might be burned down again.
I am not talking about the Custom House. For that reason, I propose we include some reference, however minimal, to the idea of aesthetic considerations in our definition of proper planning.
We all recognise the hotel to which the Deputy refers. This amendment would define proper planning as including the aesthetic qualities of a place or development. Proper planning and development already includes visual impact, visual amenities, design standards and so on, but they are elements in a multiplicity of values in a balanced concept. The approach is to try to maintain a balance. Many people would disagree with emphasising aesthetic qualities and giving them a special status over other elements which they would deem more important, such as safety or environmental protection or pollution. As the Deputy admits, it is a subjective concept.
My diligent officials went to the bother of looking up a definition in a dictionary, which states that it relates to perception by the senses and generally relates to a sense of beauty.
That sounds great.
It sounds like a better idea all the time.
It gives a whole new meaning to planning.
If the concept of aesthetic qualities were elevated to the point where special consideration were given to it, it could cause difficulty in the implementation of planning and development and give rise to widespread disagreement about its meaning in respect of a specific project. While we agree on the building to which Deputy Dukes referred, architects and others often disagree on the aesthetics of a building. Furthermore, what is meant by the aesthetic effect of a building?
I know the point the Deputy makes in the amendment about the necessity for high design standards and quality and I agree with him. Other provisions in the Bill can help achieve this. I refer the Deputy to section 19 in respect of local area plans. We have included in that a specific provision for area plans to include design standards, which is what I understand the Deputy emphasises. Furthermore, the First Schedule of the Bill allows local authorities, through their local development plans, to regulate and control the design, colour and materials of structures.
I accept the point the Deputy makes, but the issue of design is catered for in the Bill and it is probably a more realistic way of approaching it than giving it a special place in the hierarchy of considerations which must be taken into account when deciding on proper planning. I ask the Deputy to withdraw the amendment.
I did not propose to give it a special place. I suggested that proper planning should include consideration of these matters. Given the difficulty of making objective definitions, I take the Minister's point and withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 20, line 2, to delete "Part II” and substitute “section 12(4)”.
Amendment agreed to.
I move amendment No. 28:
In page 20, line 23, after "34(5),” to insert “36(5),”.
Amendment agreed to.
I move amendment No. 29:
In page 20, line 28, to delete "section 25” and substitute “Chapter III of Part II”.
Amendment agreed to.
I move amendment No. 30:
In page 20, between lines 39 and 40, to insert the following definition:
" risk' has the meaning assigned to it by the Major Accidents Directive;".
Amendment agreed to.
I move amendment No. 31:
In page 21, line 6, to delete "person" and substitute "a public body".
This is about statutory undertakers. I used to think that statutory undertakers were stiff-looking gentlemen in black coats who came to take one away, until I became a member of a local authority and discovered they were the people who dig up the road.
They can also come and take one away.
There were only a few of them a number of years ago. There was the local authority itself, the ESB, Eircom and Bord Gáis. Between the four of them, they managed to create a great deal of havoc. A new road would hardly have been laid when Bord Gáis or Eircom came along to dig it up to lay cables. They would be just finished and have it covered when some other utility company would dig up the same road again. It is well known and understood that, while the work of statutory undertakers was necessary, it created a great deal of inconvenience. The problem is that there will now be many more of them because the number of telecommunications companies has multiplied enormously and, with the deregulation of electricity, we will have more electricity companies. In the areas of gas, telecommunications, cabling and television, there will be a huge increase in what are called statutory undertakers.
The problem in the Bill is that, in section 4, development carried out by statutory undertakers for any works for the purpose of inspecting, repairing, renewing, altering or removing of sewers, mains, pipes, cables, overhead wires or other apparatus, including the excavation of any street or other land for that purpose is exempted development. They do not have to apply for permission. This means that a multiplicity of bodies will be free of the need to apply for planning permission to dig up roads, excavate, erect structures and so on. It was bad enough when there was only the ESB, Telecom Éireann and the gas company. However, there may now be 20 or 30 such bodies and this will be a nightmare given the amount of road construction and so on which will be undertaken.
I propose this amendment but I accept that there may be a different way of doing this. However, I wish to limit the number of bodies to which the exempted development criteria will apply to at least public bodies. My proposal is that this category will be confined to public bodies such as local authorities, State bodies or whatever. There may be other ways of achieving this and I am not offering this amendment as the sole solution. However, we cannot allow a situation where there will be exempted development for a multiplicity of utilities who will be competing against each other.
Some local authorities tried to co-ordinate the activities of public utilities and their own sanitation departments to minimise the amount of work. However, there will be competition for these services and different utilities will be tripping over each other to lay cables, pipes, wiring, connections and so on with consequences for traffic disruption, environmental problems and damage to road surfaces and other structures. There will have to be some way of limiting this. As the Bill stands, these bodies will be exempted from planning permission. If the Bill is left as it is it will be a great time to be a statutory undertaker.
I have much sympathy with the Deputy's comments but I assume the reference to persons includes legal persons and others and that they are all covered by this. If this provision is limited to public bodies there will be a serious danger that where a public body sub-contracts work to a private firm, they will be obliged to seek planning permission. Deputy Gilmore is a member of a local authority which I am not. However, planning departments of local authorities will be inundated if they have to deal with a planning application every time someone wants to put in a new set of manhole covers which people will not trip over or to lay telephone cables.
There is another way of dealing with this problem which is the subject of amendment No. 52. This deals with a different part of the problem which is the restoration of streetscapes or whatever, once work has been done. The other problem which neither the Bill nor Deputy Gilmore's or my amendment can successfully address is the simple question of co-ordination between local authorities and the statutory bodies which carry out these works. It is wonderful to find that we still envisage public bodies talking about railways, canals, inland navigation and so on. These phrases are borrowed from a time when there was heavy traffic on canals. We have one word for telecommunications which is the most pervasive and more digging up is done for telecommunications purposes than for any other utility, including water.
The problem which arises and which the public recognises is the lack of co-ordination. Deputy Gilmore referred to a situation where a brand new piece of infrastructure such as a road is installed and in no time it is dug up under a succession of road opening licences to put in water facilities, fibre optic cables or because the ESB has a different plan for lighting the area.
For almost a whole summer, the street outside this building was dug up for various purposes and there seemed to be no co-ordination. Citizens and business people in Dublin are quaking in their boots at the idea that something will go wrong with the installation of the Luas, if it ever happens. The latest instalment of that plan involves £8 billion. At one stage the plan was to work on 100 metre stretches of road at a time. However, given the record of some utilities, they could be back in six months with a different idea. This Bill cannot deal with the core problem of the co-ordination of work by local authorities.
Even if planning permission is not involved, wherever work is carried out an executive decision is made by a local authority to allow interference with infrastructure. This problem has been the topic of all levels of conversation for a long time and no one seems able to crack it.
Deputy Gilmore raised an important issue. The amendment would change the definition of a statutory undertaker from any person authorised under statute to any public body authorised under statute. However, Deputy Dukes referred to the competition in which services previously provided only by the State are now being provided by a multitude of licensed operators. We cannot distinguish between operators with regard to the planning code in the way suggested. As long as these companies operate under a publicly granted licence they are entitled to be treated in the same way.
Section 4 refers to inspecting, repairing, renewing, altering or removing sewers, mains, pipes, cables, overhead wires and so on. One could not ask people to apply for planning permission for maintenance work which would be the effect of this amendment. However, I agree that there is a need for some kind of control. Controls on the opening of roads are dealt with under the Road Traffic Acts and the Gas Acts and the Telecommunications Infrastructure Bill contains additional controls over this activity. However, I accept the point made by the Deputies and there is a need to examine this situation by way of a single Bill that would deal with the issues raised by the Deputy. The essential point is that we must treat everybody in the same way.
I also want to refer to the definition of statutory undertaker. As Deputy Dukes pointed out, this deals with railways, canals, harbours, etc. I wish to give notice to the committee that between now and Report Stage I want to consider whether airports should be included in the definition of statutory undertakers. I think a case, which is being put by some people, can be made for doing so.
I appreciate what the Deputy is trying to achieve in terms of the amendment, namely, to exercise control of ongoing maintenance, the digging up of streets, etc. However, the planning code is not where this should be dealt with and for that reason I ask the Deputy to withdraw the amendment.
Is there a doubt in terms of airports? The definition talks about a person authorised by or under any enactment to carry out a public undertaking. Airports carry out their function under statute law and it seems they are included in the definition of other public undertakings.
That is what we want to ensure. They may or may not be included and we may have to be specific. Harbours are specifically included and it seems there is a case for specifically including airports.
When the list was first put together in the late 19th century we did not have airports.
We are examining the matter.
I thank the Minister for his response and for recognising that the issue will have to be dealt with. I accept a distinction cannot be made between public and private bodies which provide utilities and services, although at the time the 1963 Act was drawn up, which is where this comes from, they were all public bodies.
Dublin Gas.
Yes, Dublin Gas. However, it largely applied to public bodies of which there were very few. I am encouraged by what the Minister said about looking at this in the context of separate legislation. I ask him to inject a bit of urgency in this regard as a major problem will arise in the short-term given the different telecommunications and electricity companies.
We are spending a fortune trying to deal with the traffic problem, a huge portion of which is created by disruptions and lane closures because of road openings. Local authorities cannot do much in terms of the road opening licence arrangement, other than impose conditions about reinstatement, etc. At the end of the day there are only very limited circumstances where they can refuse a road opening licence, particularly to these bodies. These utility providers do not decide over night, except in the case of emergencies, where they will carry out works, and there should be a statutory obligation on the providers to notify planning or local authorities of their work and maintenance programme. This would enable local authorities to co-ordinate works with other utilities. There should be an obligation on utility providers to co-operate with such co-ordination. For example, it should be possible to place a single channel on roads for all cabling, shared by all providers. There is a case, perhaps, for that being done by local authorities. If the road has to be opened the utility provider should apply to the road authority for the opening. Otherwise every telecommunications company and electricity company could open and re-open roads almost with free reign, causing mayhem in terms of traffic and huge damage to the road surface and structure. This is urgent as competition is now setting in and much of this work will be taking place in the short-term.
I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 32 not moved.
Amendments No. 33 is consequential on amendment No. 491, and both amendments may be discussed together by agreement.
I move amendment No. 33:
In page 21, to delete lines 36 to 42, and in page 22, to delete lines 1 to 7 and substitute the following:
"'unauthorised development' means, in relation to land, the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use;
'unauthorised structure' means a structure other than-
(a) a structure which was in existence on 1 October 1964, or
(b) a structure, the construction, erection or making of which was the subject of a permission fordevelopment granted under Part IV of the Act of 1963 or deemed to be such under section 92 of that Act or under section 34 of this Act, being a permission which has not been revoked, or which exists as a result of the carrying out of exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act);
'unauthorised use' means, in relation to land, use commenced on or after 1 October 1964, being a use which is a material change in use of any structure or other land and being development other than-
(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 or under section 34 of this Act, being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;
'unauthorised works' means any works on, in, over or under land commenced on or after 1 October 1964, being development other than-
(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or
(b) development which is the subject of a permission granted under Part IV of the Act of 1963 or under section 34 of this Act, being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;”.
These are important amendments, which will probably result in quite an amount of discussion, and perhaps it would be as well to suspend at this stage.
Sitting suspended at 11.00 a.m. and resumed at 11.30 a.m.
These are important amendments which clarify and extend the definition of what constitutes unauthorised development by persons who may, therefore, be liable to prosecution for an offence. The amendments are also intended to provide a greater degree of certainty to people operating on the basis of the pre-1963 authorisations. These changes arise as a result of the consultation process which I commenced following publication of the Bill. I provided a commitment at that time that we would respond to useful and material amendments and these amendments represent a good example of that commitment being honoured.
The amendment to section 2 deletes the current definitions of "unauthorised development" and "unauthorised structures" and replaces them with four different definitions of "unauthorised development", "unauthorised structures", "unauthorised use" and "unauthorised works". The definition of "unauthorised development" refers to unauthorised works, including the erection of an unauthorised structure or the making of any unauthorised use. By defining the three concepts of unauthorised structure, unauthorised use and unauthorised works, we were able to provide a more expanded definition of unauthorised development. The definition of an unauthorised structure now relates to any structure not granted planning or retention permission under the 1963 Act. The meaning of "exempted development" is also newly stated as being exempt under either section 4 of the 1963 Act or section 4 of this Act. The definition of unauthorised use was included in the 1963 Act but was omitted from this Bill in the belief that the definition of unauthorised development was adequate. However, commentators pointed out that any lack of certainty about pre-1963 uses could have far-reaching consequences for many types of development which depend on pre-1963 authorisation. Therefore, I agreed to re-insert the definition in the Bill.
The amendment defines "unauthorised use" as a material change in the use of land after 1 October 1964 - the date of commencement of the 1963 Act - which is or was not exempt, or which does or did not have planning permission, or does or did not comply with the planning permission granted for it. As both works and change of use constitute development, they must both be defined for the purpose of defining unauthorised development. "Unauthorised works", therefore, is similarly defined to "unauthorised use" as meaning works beginning after 1 October 1964 which is or was not exempt, or which does or did not have planning permission, or does or did not comply with the planning permission granted for it. As a consequence of this extensive change to definitions, we had to make consequential changes to section 136 by stating that it is an offence to carry out unauthorised development. First, these changes will make it more difficult for a person to argue their development is not unauthorised and, second, it will offer more security to persons who are lawfully operating under a pre-1963 authorisation.
The Minister's amendment is clear and gives a better definition than the one already included in the Bill. Amendment No. 491 makes it clear beyond any doubt that certain behaviour is an offence. However, a problem arises with this type of definition in relation to structures which exist, that are not authorised and have been in existence for some time. I received a submission from the Law Society in relation to the difficulties which arise in this regard.
I have tabled two or three amendments to other sections which arise from some of the issues raised. These issues relate to the difficulty in some cases in establishing the exact status of a structure or building if it was built a considerable time ago without authorisation. It can sometimes be difficult to find out from the records of the planning authority whether this is the case and whether any subsequent permission for retention was granted. This can pose problems. Another problem arises where an unauthorised structure has been in existence for a considerable time and does not seem to have caused any problems to neighbours. I understand a certain type of jurisprudence has emerged whereby if a structure has been in place, even if unauthorised, for five years or more, in a majority of cases there is a certain resistance to classifying it as unauthorised and taking enforcement action against it.
Uncertainty is the worst thing that can happen. The Law Society states that a considerable number of transactions relating to property have been delayed or unable to be completed because of the doubt about the exact status of the structure. This may not be directly germane to the Minister's amendment but I would like to know if the Minister, in defining unauthorised structures and unauthorised use, is conscious of the other problem which arises and whether he intends to do anything to deal with the problem. This worry arises because in the past a number of local authorities have been less than diligent in their approach to enforcing this requirement.
The house I bought was built originally without planning permission. It got permission for retention and I had to find out whether a couple of garages within the curtilage of the house were exempt development. This took a lot of effort on the part of my local county council because it could not decide whether these could be considered as being within the curtilage or whether they were exempt development. When I decided to add an extension to the house, I again had a certain amount of toing and froing to find out whether I needed planning permission. I finally obtained a declaration that I did not need planning permission just in case someone decided in the future that I did.
These issues need to be clarified and there are a few opportunities in the Bill to do so. Will the Minister, by way of other amendments, clear up these implications in the Bill in the way this amendment does?
I wish to raise three issues arising from the amendment. The Minister stated that the redefinitions arose from the consultation process which he undertook in relation to the Bill. I congratulate him on this consultation process, which was a valuable exercise and a practice that might be followed. It would be useful to the committee if he could give an indication as to the quarters from which representations were made to alter the amendments. I am not looking for a comprehensive list of the people who made submissions but it would be of interest to the committee to know who recommended the amendments.
I want to raise the issue of whether the amendment widens or narrows the concept of unauthorised development. In the original definition, "unauthorised development" means the carrying out of any development. This definition would define "unauthorised development" as having three legs: unauthorised works, unauthorised structure or unauthorised use. I presume the Minister has obtained advice on whether there are developments which are not works, structures or use. In attempting to extend the definition of "unauthorised works" we may, in fact, create a space aside from works, structures and use which might create a loophole.
The other issue I wish to raise relates to use. In urban areas many problems regarding unauthorised development relate to the issue of use, particularly the intensification of use. For example, I recall a case in my constituency - the Minister will appreciate this is a rather built-up constituency where property values are very high - some years ago in relation to a pig rearing operation. This had been in existence prior to 1963 and was exempt development. As the years passed, it appeared that more and more little pigs were being squeezed into the space. The issue arose as to whether there was an intensification of use and whether this related to the size of the building in which the little pigs were housed or the number of pigs housed in the building. That may be an extreme example but it illustrates the problem.
Garages are very different now from the way they were before 1963. Would spraying operations and other activities associated with garages stem from before 1963 or do they require permission? Intensification needs to be addressed in the definition of use. Problems arise in this area about whether permission is needed.
Deputy Dukes raised the question of structures which are not authorised but which have been standing for some time and asked why we do not deem them authorised structures when they have been there for so long. A local authority cannot take action currently after five years but the Bill changes that to a seven year period. There is a legitimate argument that if they are not deemed to be unauthorised after that, they should be made official. It would be of great convenience to solicitors doing conveyancing. The Law Society made a submission on this and we gave it very careful consideration. We could grant an amnesty to all unauthorised developments over five years old. In the context of the Bill - keeping control of planning and development and tightening up on areas where there has been abuse in the past - it would send the wrong signal to the public if we were to grant an amnesty to people who had broken the law previous to this. That is why we have not included it.
The Law Society made representations about this because it finds it a great annoyance to have to deal with conveyancing of property the planning status of which is uncertain. It is also true, however, that it rarely prevents conveyancing, although it may cause inconvenience. I am anxious that we do not send out a signal to any sector that a person can do something, hope to get away with it for seven years and then be granted an amnesty. That would give the wrong impression.
The Irish Concrete Federation made a submission about quarries which have been operating since before 1963. The IRFU made a submission on concerts for which there is existing planning permission. There may have been one or two other submissions but those were the three formal submissions on this aspect of the Bill. We have been advised that there are no loopholes. Developments are either works, structures or use. The definitions are comprehensive and cover everything.
Intensification will be dealt with in section 3. It is always difficult to define intensification but local authorities have adopted a reasonable approach in most instances. If we were to define activities, so many would have to be included that it is really best left to a common sense approach. It has caused difficulty in the past for quarries and garages. There is an amendment dealing with intensification and we can deal with the issue in greater detail when we reach it.
All of this is predicated on the idea that building control sections of local authorities are well staffed. In my area there are fewer people employed in the building control section than there were three years ago, while the number of complaints has doubled. The time limit for many of those could expire before an enforcement notice served.
As regards penalties, in my area there was a case where an unauthorised development occurred and the council took action, but at the same time a planning application arrived from the developer. Is that type of action precluded under the Bill? If someone is charged with an unauthorised development, can that person still make an application for another site? All the rigours of the law should be brought to bear on these people. If they cannot abide by the law in one area, they should not be allowed to use the planning system for further gain in another area.
The penalties will be substantially increased under section 141.
There is no preclusion from making another planning application for a structure in the same functional area.
There is provision in section 36 of the Bill that a person's previous history can be taken into account. It is not possible to preclude people from applying for planning permission and currently their past history cannot be taken into account. We are attempting to deal with that in section 36 and the penalties will be much more severe.
The Minister mentioned his distaste for an amnesty. He will not mind me pointing out that his party does not seem to have an objection to amnesties in principle. That, however, is another day's work.
It is not that different.
He is still there. I note the Minister shares this lack of concern for the comfort of lawyers. There are stories about that in California. I am more concerned about the comfort of their clients and there are cases where conveyancing is made difficult by issues like this. I know the Minister does not like the idea of appearing to condone past misconduct and I agree with him. However, where there is the continuing existence of an unauthorised structure there is at least the possibility that the planning authority may be as guilty in the matter as the person who built the original structure which is why I referred earlier to the deficiencies in enforcement in local authorities.
I know there are many wild boys around the country who will go ahead and erect a building. Quite often they do so in the expectation that when push comes to shove and they apply for retention they will receive it. They have been encouraged to date by the belief that if the local authority proceeded against them for enforcement and they applied for retention that would stop the case. I am delighted this Bill removes that possibility. Equally, there are people who do work that is outside the conditions of their permission and is unauthorised but nothing is done about it. Local authorities have a responsibility in such matters.
I agree with Deputy Hayes that resources is a central issue. We can have wonderful legislation but if we do not have sufficient resources it is a dead letter. That applies particularly to enforcement. What the Law Society has proposed would bring a measure of certainty into the matter. I deplore the erection of unauthorised structures but if a structure has existed for 10 or 12 years and people have lived with it, although there may be a difficulty about its status there is an advantage for the community in clearing up that uncertainty. This legislation would be a good place to draw a line - I refuse to use the Minister's party's term of art "the line in the sand" which means the opposite of what his colleagues think it means - and say we will concentrate on enforcement and make sure everything is brought into order as and from that date, as per the definitions and procedures set out in this Bill. Does the Minister see any advantage in that?
The Deputy raises valid points. I have a healthy scepticism of the legal profession that probably grows a little each day when I see some of what is happening but I have a brother in that profession so it is balanced by a respect for knowing what a necessary force they are in society.
Sometimes I suspect the compliment is returned.
I will think further about this. My view is not doctrinaire on this issue. If Deputies are concerned we are not sending out the proper signals on unauthorised developments I am prepared to consider it. It would have the advantage of drawing a line in the sand, although the Deputy hesitated to use that phrase. However, that is the only basis on which I would do it. The Law Society's submission goes further than that. It sought a rolling amnesty every five years with which I would not agree nor would the Deputy. I will look at the matter for Report Stage and if Deputies have views they wish to express and there is a general consensus that it would be good to allow local authorities to start with a "clean sheet" and concentrate more on enforcement of current breaches, that is a valid argument.
As regards resources Deputies are correct and I would not claim that we have sufficient resources in the planning sections of local authorities. However, that is not because of a lack of willingness on either the part of the Government or the local authorities. A number of planners have been attracted into the private sector. Planning sections are understaffed and this Bill will add to the need for further planners. I have discussed that with my Cabinet colleagues to ensure the necessary finance is available. We have facilitated local authorities in creating extra posts and so on but they have had difficulty in filling them.
While acknowledging the difficulties in planning sections, much of the hype and criticism generated by the construction industry is most unfair to planners. Deputies who are involved with local authorities know the pressure under which planning staff operate. The number of houses doubled in the period 1993 to 1999 and there was a huge amount of other development. The planners are doing remarkably well in very difficult circumstances. The system is not perfect but to blame the people operating it is less than fair. I will not put it any more strongly.
I will consider the arguments put forward and if Deputies wish to talk to me further about this we may be able to have an agreed amendment for Report Stage.
I agree with the Minister in regard to the staffing of planning departments and the amount of work with which they are coping at present. I also agree that much of the criticism, the implication of which is that planners are not delivering quickly enough, is unwarranted. They have had to cope with a huge increase in the volume of planning applications with, in many instances, no increase in staff numbers and in other cases reduced staff numbers or changes in staffing with people leaving and so on. The Minister told us on Second Stage that he had been in discussion with Professor Bannon and his colleagues in UCD on increasing the output of qualified planners. We must look at the possibility of recruiting personnel who work in associated areas or have associated professional qualifications and who could acquire a planning qualification within a much shorter timeframe. A typical example would be an architect working in a private practice who has reached the point in his or her career where he or she may consider working in the public service for a time. With an additional one year course he or she could be brought to the point where he or she could qualify to work as a professional planner.
As pressure has increased in planning authorities enforcement has become the Cinderella, the issue which receives least attention. Planning authorities are dealing with so many planning applications that it seems planning officials are not giving to this issue the attention they would normally give or that is required. The problem is that the word is out and applicants are taking a chance. This is a worrying climate. The problem arises in particular in existing developments - it is very obvious what is happening in completely new developments - in relation to intensification of use.
I disagree with Deputy Dukes on what the Minister described as the amnesty approach. On enforcement, what constitutes pre-1963 and post-1963 development presents a problem, particularly when one has to deal with the question of use. We would add to the problem by adding another 1963. I understand from the submission made by the Law Society that it arises partly from the keeping of records. In the sale of a property the solicitor for one side, usually the purchaser, may spot something and a search is made following which nobody can establish whether permission was granted. This presents a difficulty in concluding the process. While the onus should be on the property owner to show that permission was granted - we will deal with this matter in more detail when we come to the keeping of records - there should be a greater onus on planning authorities to keep more accurate records. This may be a more satisfactory way of dealing with the matter. I discovered on a number of occasions that chunks of files had mysteriously disappeared and nobody could establish the reason they were missing. Better attention, therefore, needs to be paid to the keeping of records.
There is another way of dealing with the problem. Where there is a doubt about a particular structure there could be a simple procedure for obtaining permission. Where a structure has been in place for 20 years to which nobody has objected and about which there is a doubt as to whether planning permission was obtained there could be a simple procedure whereby it could be placed on side. This would be better than drawing a line under it which would create another generation of ambiguous uses and give rise to a further debate as to what did and did not apply before 2001 or wherever the line was drawn.
In drawing the line where the Bill is passed one would not be creating a new generation.
The problem is that currently there are structures which are in a grey area. Where somebody buys a property the question arises as to whether planning permission was sought for the garage in the garden. There is no problem now but the buyer may start an operation and an issue will then arise when he will state, "But I had it before the Act came in."
If the line was drawn where the Bill now is a new generation of problems would only arise from a lack of enforcement once the Bill is passed.
That is exactly what happened in 1963 when a line was drawn.
The Deputy is assuming that from here on enforcement will be as lax as it has been since 1963.
There is no reason to believe that there will be a dramatic improvement. Until such time as there is a dramatic improvement we are not in a position to relax.
We are not in a position where we cannot change the law. The Deputy is mixing the two of them up.
I am not. If one allows——
The Deputy is. We are talking about the law that will apply from here on.
Correct.
The Deputy may have doubts as to whether——
The Deputy is talking about existing developments and people, some of whom may have taken a chance in building a structure——
I am talking about taking developments out of the grey area to which the Deputy referred by drawing a line.
There is a simpler way. The way the Deputy is talking they would all have permission.
The Deputy's simpler way is also worth looking at but one way or the other developments would be taken out of the grey area and regularised as of a current date. Once that was done the problem would have been dealt with. There would be no new generation of problems unless enforcement of the law was deficient.
That would be a bit like what happened with driving licences. To solve the problem everybody who held a provisional licence in a particular year received a full driving licence.
I am very sorry that many more did not receive them.
They are driving without them anyway. One cannot legislate to grant planning permission automatically for structures for which planning permission was not sought. While I am in favour of a simple procedure to enable that grey area to be tidied up, I do not agree that we should legislate to state that everybody has planning permission prior to whatever date the Bill is passed.
Under the new simple Gilmore procedure the Deputy would be first to come in in 20 years time to raise the very meritorious and deserving case of a widow who cannot leave her property to her granddaugther because of a doubt about the title.
Under the current procedure if an extension to a house is of a particular size one has to have planning permission. There is no mystery about it. If planning permission was not sought one can invoke the retention procedure. If it is a question of records it has to be addressed at planning authority level.
I agree.
The question has been asked whether a person should have to apply for planning permission for an extension to his or her house which has been in place for 20 years, to which nobody has raised an objection and which has never caused a problem. It should not necessarily be dealt with in the same way as a development of 300 new houses. There should be a simple procedure whereby that can be brought on side if it has been in existence for 20 years without any objection taken into account. It is not right to equate the widow who has built an extension with the guy who has set up a car sales business on a busy road and has cars parked on the road. I do not agree that because he happened to be there on the day the Act was passed he should automatically get retrospective approval for whatever he has done and only has to worry about what happens from that day forward.
I have listened carefully to both sides of this debate from the Opposition side. I will consider it carefully between now and Report Stage. One point was made in regard to records which are dealt with in section 7. We are trying to improve the contents of the register and so on to assist solicitors.
I am also told that as conveyancing operates at the moment, there is a simple declaration procedure along the lines referred to by Deputy Gilmore whereby somebody can declare that his or her house is over five years old and complies with planning regulations and so on, which gets over the legal difficulties. I will take into account what has been said, but Deputies will appreciate that I am making no promises in relation to how we might approach this on Report Stage, because of the varying views.
Amendment agreed to.
I move amendment No. 34:
In page 22, line 13, after "construction," to insert "site preparation,".
This relates to how we define works. I am seeking to include site preparation works in the definition of works. I have seen developers, while a planning application is either with the planning authority or has gone to appeal, move the JCBs on site and start digging around the site. The question arises whether that constitutes works as defined under the planning legislation. There may be some ambiguity about that because the developer, when challenged, will say that he is just clearing away shrubbery and briars and levelling off the site. However, for all practical purposes, such work constitutes development. To avoid doubt about whether works of that kind are comprehended by the Bill, we should include the provision that site preparation works are regarded as development.
The Deputy's amendment would change the definition of works to include site preparation. I am very reluctant to accept the amendment. The last thing we want is to create a situation where a person with planning permission to build a house has to look for further planning permission to clear the site. That might be the effect of what the Deputy proposes. It is probably more a matter of enforcement than anything else. In general terms when a person gets planning permission for the construction of a house it is assumed that site clearance is included. I am reluctant to include site preparation in this as it might add to people's problems in getting planning permission to build a house. The definition of works is critical to the planning code as it forms part of the definition of development. Site preparation is too vague. Does it mean clearing briars and so on off a site? The amendment would cause more problems than it might solve. People may clear off sites, but if they start to dig foundations, that is covered under excavation and so on. We should not unnecessarily complicate what is already fairly technical and complicated legislation.
I do not see that this would complicate the legislation. It is not the intention that somebody would have to apply for a separate permission for site preparation. However, a developer should not anticipate or be enabled to anticipate getting permission by commencing site preparation works in advance of getting permission for the development for which he is preparing the site. I remember one controversial development which was before An Bord Pleanála. It was alleged that the developer had started. Inquiries were made and the developer said that he had not started development but that he had started, as he called it, clearing the site. The question is whether he should be allowed to do that in advance of getting planning permission. The purpose of moving the JCBs on to the site was to condition local thinking. The JCBs were already on site and moving around the place, and it seemed to me and to many other people at the time that the game was to put pressure on the planning authorities to grant planning permission, although, in fairness, I do not think pressure would work. However, there was an assumption that the developer would get permission to develop because he was moving the JCBs on site, clearing the site and so on. Site preparation should be part and parcel of any application for planning permission which is being considered by An Bord Pleanála and should be defined as an integral part of the development.
I have a good deal of sympathy for what Deputy Gilmore has said. I have been looking at the definition of works. It is, any acts or operation of construction, excavation, demolition, extension, alteration, repair and renewal - and repair and renewal do not count except where there is a building. What would one call the building of a platform in a site that is below road level in order to start constructing a house on it? That is not construction. It is not excavation.
Ms Buckley (Department of the Environment and Local Government)
It is a structure.
Is a platform a structure?
Ms Buckley
Yes.
A platform is a structure.
Foundations are a structure.
This is not a foundation.
Ms Buckley
Even foundations are structures.
This is not a foundation.
Ms Buckley
Therefore, a platform is a structure, so anything is a structure. We are talking at a very basic level here in relation to preparations, of clearing the site of bushes and things like that. That is what we are talking about. That is where there might be some doubt.
Let us take two cases, a rural setting and an urban setting. In a rural setting one buys a corner of a field on which to build a house. Anything one does there is being done with a view to putting a house on it. There would be no point in doing it otherwise.
It may be to secure the site.
That is fencing. Whose site are you on anyway? It is not untypical to move a JCB in to make room to work on the site. Is that site preparation? If permission is not granted, the configuration of the site has been altered without permission. If one buys a site in an urban setting, which has accumulated rubbish over the years, and applies for planning permission and then moves in to clear off the rubble, one is preparing the ground.
A vote has been called in the House.
Sitting suspended at 12.30 p.m. and resumed at3 p.m.