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The Minister
accepted an amendment of the definition to take account
of balloons and so forth. Amendment No. 1 is put down to
counter the imaginative creativity of the advertising
industry which might find ways and means, which we have
not thought of yet, to attach materials to buildings for
advertising purposes. The amendment proposes a catch all
phrase. We have already discussed this matter so I will
not waste more time on it.
Mr. Coogan:
I second the amendment.
Minister for
the Environment and Local Government (Mr. Dempsey): I
accept the amendment.
Amendment
agreed to.
Mr. Norris:
I move amendment No. 2:
In page 16,
line 23, after "plaster" to insert "or
the removal or alteration of doors, windows and
roofing materials such as slates, tiles, timber,
metal or concrete".
There was some
discussion on this on Committee Stage. The removal or
alteration of doors, windows and roofing materials is a
substantial change to a house and the results can be
disastrous, for example, using the wrong type of slates
or the wrong fenestration on an 18th century building.
The Minister suggested that this concern was met by other
sections of the Bill or other legislation. However, I
strongly believe that it should be included in the Bill.
Mr. Coogan:
I second the amendment.
Mr. Dempsey:
This amendment would add extra words to the Bill but no
extra meaning for the reason suggested by the Senator.
The definitions have to be considered in the overall
context. Section 4(1)(h) provides that a
"development consisting of the carrying out of works
for the maintenance, improvement or other alteration of
any structure, being works which affect only the interior
of the structure or which do not materially affect the
external appearance of the structure so as to render the
appearance inconsistent with the character of the
structure or of neighbouring structures" shall be
exempted development. No matter how the definition of
works or alterations is changed, the requirement to
obtain planning permission only comes into play where
development does not meet the test of section 4(1)(h).
In accordance
with section 55, section 4(1)(h) does not apply to any
works which would affect the character of a protected
structure. Similarly, where a planning authority
designates an architectural conservation area under the
1999 Act, it will be able to specify higher standards in
those areas than would normally apply. It could, for
example, state as a policy that it considers the
installation of PVC windows in such an area as
development which would render the appearance of a
structure inconsistent with the character of neighbouring
structures. Planning control of PVC windows would be
introduced in such an area while not affecting normal
suburban areas.
I understand
the Senator's concern but I assure him that the Bill
contains the protections he seeks.
Mr. Norris:
I am satisfied with the Minister's reply.
Amendment, by
leave, withdrawn.
Mr. Norris:
I move amendment No. 3:
In page 18,
between lines 30 and 31, to insert the following:
"'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;".
I will not
delay the House on this. There is no definition of
"material contravention" in the Bill. Despite
the arguments the Minister made on Committee Stage, where
a material contravention is referred to in the Bill it
should be clearly defined.
Ms O'Meara:
I second the amendment. In the context of a planning
Bill, particularly one as comprehensive as this, it
should be essential to include a definition of
"material contravention".
Mr. Dempsey:
This is a classic case, and there are a few more
instances in the Bill, of silence being golden. My
concern is that if a definition is included, we might
inadvertently leave something out. Planning and
development are dynamic concepts and the Bill tries to
capture that. If we include such a definition, we might
permit loopholes. An unforeseen circumstance could arise
which would not be covered by the law. We would be left
in a situation where, because it was not within the
definition, it would be excluded, thus allowing a
loophole to develop.
I understand
the Senators' motivation but the best advice available to
me - advice with which I strongly agree - is that to be
absolutely safe and ensure that loopholes do not arise,
it is best to leave the Bill as it stands and
"material contravention" undefined. I ask the
Senators to withdraw the amendment.
Mr. Norris:
This is a type of force majeure so there is not
much point in my resisting. I understand the Minister's
concern that we do not create loopholes. However, one
must wonder how people will decide or who will decide
where a material contravention occurs. There is also a
worry that it goes back to the manager. However, I am
prepared to withdraw the amendment.
Amendment, by
leave, withdrawn.
Government
amendment No. 4:
In page 19,
between lines 19 and 20, to insert the following:
"(f)
in the case of a referral under section 82 (4),
a prospective party to an agreement under section
82(2);".
Mr. Dempsey:
This amendment is consequential on an amendment to
section 115 on Committee Stage, changing the definition
of "party to an appeal or referral" to define
the party to a referral under section 82(4). That section
provides that any dispute in relation to an agreement
relating to the operation of a housing strategy other
than a dispute in relation to the amount of compensation
to be paid may be referred to An Bord Pleanála. The
content of that agreement is not a land use decision. The
land use issues will have been decided in granting the
planning permission, subject to entering an agreement in
relation to the transfer of the land. An example of the
type of disagreement which might be referred to the board
would be the location of the land to be transferred. It
is appropriate that the only parties to a referral under
this section to An Bord Pleanála should be the parties
to the agreement. We are providing for that.
Amendment
agreed to. Mr. Coogan: I move
amendment No. 5:
In
page 22, line 14, after
"alteration," to insert
"cleaning,".
When we
discussed this matter on Committee Stage, the Minister
said he would consider the possiblity of introducing
wording similar to this amendment or to an earlier
amendment. The use of sandblasting techniques or high
pressure water cleaning can damage buildings. All we need
do is reflect on the latest revelation regarding the
Elgin marbles. I am not saying we have Elgin marbles in
Ireland. Given that the British Museum with all its
experience and deep concern can end up perhaps destroying
such unique material, the possibility of people
destroying a building who have no such concerns is even
greater. That is why I ask the Minister to insert the
word "cleaning" in this definition, which would
cover works such as sandblasting and heavy water
cleaning.
Mr. Norris: I
support Senator Coogan's amendment. The cleaning of
buildings can be very damaging. That is not just in the
case of things like the Elgin marbles. In particular, in
the 18th century context or earlier, if brick buildings
are sandblasted the bricks can very easily become spalled
and porous and this can damage an entire building. What
starts out as nice, hygienic cleaning operation can turn
into something that is very damaging to a building. High
pressure water cleaning must be very sensitively done.
I point to the
example of Trinity which has done an extremely good job
under careful supervision over a number of years in
restoring the facade of the building. This is a very
serious point. Buildings can be damaged by inappropriate
methods of cleaning.
Mr. Dempsey:
Senator Coogan is correct in that I said on Committee
Stage I would consider if I could accommodate this
proposal, but unfortunately I cannot. I explained that in
accordance with section 4(1)(h) planning
permission could be required only in circumstances where
such cleaning would lead to the appearance of a building
being inconsistent with its neighbouring buildings. While
I do not envisage what the Senator said happening, I
understand his point about sandblasting and cleaning in
general, but it is not possible for me to accept this
amendment in the context of the Bill.
Mr. Coogan: While
I am not overly disappointed by that, such protection
should be included in the Bill. Otherwise this area is
open not necessarily to abuse but individuals who are
asked to carry out sandblasting work, who are not
committed or concerned about a project, will have little
knowledge of the structure on which they are working and
will not have the same concern for the work on it that
others would have. Could the words "appropriate
preservation" or words to that effect be inserted to
address that concern?
Amendment, by
leave, withdrawn.
Mr. Norris: I
move amendment No. 6:
In
page 23, between lines 14 and 15, to insert
the following:
"(c)
any intensification of a existing
use that leads to a greater
impact on the adjacent
environment particularly its
residents due to increased noise,
odours, wastes including slurry
and more transportation shall be
regarded as a material change of
use which shall require
permission under section 34.".
I will not
rehearse the arguments made on Committee Stage, although
I raised a specific case, that of a quarry. I referred to
a person who had lived for many years in happy enjoyment
of his premises and then a disused quarry was reopened
and massively exploited and the character of the quarry
and the surrounding area was changed. It was subjected to
noise, odour, traffic and so on. This matter should be
examined and, as Senator Coogan said, the Minister
undertook to examine this matter to see if something
could be done.
Ms O'Meara: I
second the amendment. I recall we had a considerable
discussion on this matter on Committee Stage during which
it emerged that this is a significant issue and a
potentially significant problem. I recall the Minister
said he would examine it.
Mr. Coogan: As
the previous speakers said, we spent some time discussing
this on Committee Stage. It is recognised that
intensification of use can have other effects. Senator
Norris mentioned the case of quarrying, which leads to a
more lorries on our roads which carry dust from the
quarry. When such work is carried our in Great Britain,
lorries must be covered to prevent material falling from
them. We might consider including such a provision in
future legislation to ensure that dust or stones do not
fall from lorries. I had hoped that the Minister might
have tabled an amendment on this matter.
Mr. Walsh: I
am inclined to agree with the thrust of this amendment,
if not its wording. Intensification of use can give rise
to significant changes for the people of a locality. From
my experience of being a member of a local authority, I
thought that where serious and significant
intensification of use occurs developers are obliged to
have prior approval for such an intensification of use.
The Minister might clarify that.
Mr. Norris: Local
authorities do not chase it up.
Mr. Dempsey:
As Senator Walsh said, if one proposes an
intensification of use, one is supposed to seek approval
for that through the planning system. I accept what
Senator Norris said, that it is not easy and there are
usually court arguments about what is an intensification
of use. The purpose of this amendment is to try to give a
definition of intensification.
I have the same
difficulty in accepting this amendment as I had in
accepting the amendment proposing the inserting of the
definition of "material contravention". A
definition may omit something, leave a loophole for
somebody to exploit the legislation and I am not prepared
to take that chance. I accept that I said I would
consider this area because the current situation in
relation to quarries and the pre-1963 rule must be
examined.
I addressed the
annual dinner of the Irish Mines and Quarrying Society
last weekend and I raised this matter with its members
and explained that I felt difficulties were arising. They
had made complaints about the number of illegal quarries
operating and local authorities transacting business with
them for road purposes. I explained the difficulty about
the pre-1963 rule and that many people are using it. I
have reason to believe they may examine this, but I
intend to examine it between now and when we deal with
Committee Stage of the Bill in the Dáil to see if
improvements can be made. We will probably be back here
talking about quarrying some time in the future.
Mr. Norris: I
had better not be pestiferous and press this amendment at
this point. The Minister now sees what happens when he
rushes. If he had given himself more time, he could have
dealt directly here with us and Seanad Éireann would
have been seen by the public to fulfil its statutory role
of revising and refining legislation. This is a very
refined House. I am at least grateful he is examining
this matter between now and Committee Stage in the Dáil.
I am sure he will refer to the fact that the Seanad
played a role in drawing this matter to his attention.
Mr. Dempsey:
I always give credit where credit is due.
Amendment, by
leave, withdrawn.
An
Cathaoirleach: Amendment No. 137 is related to
Government amendment No. 7 and they can be discussed
together by agreement.
Government
amendment No. 7:
In
page 23, line 38, to delete "or
pursuant" and insert
"pursuant".
Mr. Dempsey:
This amendment arises on foot of a discussion we had
on amendments tabled by Senators on this matter on
Committee Stage. It seeks to clarify the provisions which
exempt local authority development carried out by the
local authority or through a public private partnership.
Concerns were expressed on Committee Stage that the
current wording of the provision is too broad. This
amendment clarifies that Part X type procedures under
section 163 will apply to projects carried out pursuant
to a contract on behalf of a local authority or in
partnership with a local authority and they will,
therefore, be subject to the democratic control of the
members. Alternatively, if they are subject to an EIA,
they will be subject to the approval of An Bord Pleanála
under section 159.
Amendment No.
137 in the names of Senators O'Meara, Costello and Ryan
would apply normal planning controls to developments by
local authorities by way of public-private partnership.
My amendment achieves this. The planning control to which
a local authority will be subject will apply to PPP
projects. However, if the amendment is intended to
require planning permission for local authority PPP
projects, requiring the PPPs to have two sets of
procedures, a double set - the normal planning procedure
and the Part X procedure - would make no sense. The
Government intends to facilitate public private
partnerships, particularly those that will allow for the
provision, by the local authority in partnership, of
infrastructural facilities in the future. The amendment,
as I read it, would run contrary to that and I cannot
accept it. My amendment No. 7, in this case, solves the
problem that Senators had.
Senator Walsh
spoke on this and Senator Coogan mentioned incinerators,
which is how this arose. My amendment will address those
particular concerns. Whichever route is taken, the local
authority development or the PPP development for local
authorities will go through one or other procedure, but I
am not prepared to make it go through both.
Mr. Coogan:
We did express concern and the issues raised by Senator
Walsh and myself concerned a case of a partnership where,
for example, a local authority decided first of all to
commence the work and then handed it over or went into
partnership, then changes or modifications were made and
these people would not have gone through due process. The
Minister has gone some way to doing that by this slight
modification in the Bill. It is quite impossible to tie
it down completely but it has gone some way to meet the
concerns we expressed.
Ms O'Meara:
I too can see that the Minister's amendment has gone some
way towards meeting the concerns which we raised on
Committee Stage. It was not our intention with our
amendment to have a situation whereby those involved in
public private partnerships would have to go through both
procedures. The Minister said one or the other. Our
amendment No. 137 was to ensure that public private
partnerships would have to go through the same normal
planning controls as a private development, particularly
where public private partners are involved in major
projects, which we anticipate in the future, judging from
the national plan and so on. It is very important that a
situation is not created where there is some sort of
exemption because a local authority is involved. It might
be a small partner in some ways. I am concerned that
there may be a level of abuse there.
The Minister
has not gone far enough. Our amendment is designed to
produce a particular situation, as the Minister knows.
Our amendment No. 137 arises directly out of our
discussions on Committee Stage and is designed to ensure
that public private partnerships are subject to the same
planning controls as private applications. One can see
the potential for large projects in the future such as
incinerators, landfill or thermal treatment or whatever
one wants to call it being subject only to Part X and not
to planning. These situations are controversial enough
but this would generate a huge amount of controversy. In
that context I am not prepared to withdraw amendment No.
137 at this stage at least. I would like to hear the
Minister's response.
Mr. Walsh:
The Minister has gone some way in the change that he has
made to this. It is a case of whether it would be better
going through the planning process in the normal way
rather than Part X. Part X is a relatively recent
introduction to the process. Prior to that, local
authorities could proceed without taking any course.
Public private partnerships need to be facilitated and it
should be ensured that they are not bogged down in
actions taken by all sorts of self-interest groups,
holding them up and interfering with the common good.
On the other
hand I am concerned and the Minister might look at Part X
to ensure that there is some process of procedure to be
followed by the elected members. Part X tends to come
back before the councillors after the consultation and
generally goes through on the nod. Maybe that should be
examined and a more stringent process provided for
because one is preventing people with genuine objections
from using the planning appeal route to An Bord
Pleanála, which is a significant denial of a right under
the planning legislation. If that is happening, it is
important to put a greater onus on the elected local
authority members to analyse and give more consideration
than might be currently given, particularly where there
could be very significant developments. As Senator
O'Meara said, that could in time come in under this
section.
The
commerciality of the project is relevant as well. Maybe
this can be covered by the contract between the local
authority and whichever private organisation is involved.
Under the planning process, the planning authority can
levy development charges to cover infrastructural
facilities for this development. Under Part X, I am not
sure whether the same scope is available to the local
authority and, therefore, a PPP could have some
commercial advantage over a similar type of activity that
might be provided purely on a commercial basis. There are
areas which probably need further teasing out.
Mr. Dempsey:
We are talking about a public private partnership with
the local authority having to go through one or other
process. It will go through the Part X process, and major
projects, which I mentioned the last time, such as
incinerators or whatever else depending on the value of
it, would have to go through an EIA procedure. If it has
to go through an EIA procedure, as most of those large
ones mentioned will, then An Bord Pleanála will make the
decision if there is an appeal or anything else. If there
is an EIA it must go to An Bord Pleanála and they decide
it.
The Part X
procedure has been strengthened in this Bill as well. On
Senator Walsh's point, we have strengthened the
procedures in this Bill for Part X where local authority
members have to go through certain procedures and they
have to make sure that they take into account what a
manager would be taking into account. They have to get
the reports from the manager, summaries of the
submissions and so on. My concern with the Part X
procedure is that, in some councils, councillors will
hold up procedures and developments. It might be quicker,
in some cases, to put the PPP through the normal planning
procedure than the Part X one, which is a judgement which
people will have to make themselves.
Senator
O'Meara's amendment would mean that a planning authority
would be deciding on the planning application of someone
that was in partnership with itself and that causes its
own difficulties. No matter how open the system is made,
people would say, "What were they going to do
anyway?" and shrug their shoulders. We have tried to
address the major concern in the original amendments,
which was that something would pass through without any
scrutiny at all, from a planning point of view, because
it was going to be in partnership with a local authority.
The amendment which I put down does that without totally
hamstringing the local authority or the PPP system. We
are devising the PPP system and there is a lot of work
being done on the legal and financial aspects. It is
possible that we may have to change this again after some
experience. This is the best way to facilitate local
authorities and public private partnerships. I ask
Senator O'Meara not to press the amendment.
Ms O'Meara:
May I reply to amendment No. 137?
An
Leas-Chathaoirleach: The Senator may reply to it
because the two amendments are being discussed together.
However, she cannot move the amendment until we reach it.
Ms O'Meara:
I accept what the Minister said that public private
partnerships are in an early phase of development.
Perhaps it is too early to legislate for them in this
Bill. I will not press the amendment, but I hope it does
not lead to controversy at a future date.
Amendment
agreed to.
Government
amendment No. 8:
In page 24,
line 10, after "of" to insert
"non-public".
Mr. Dempsey:
Senator Coogan and others expressed concern about the
exemption for roads serving forests, which could have a
wide interpretation and could include the building of new
roads up to forests. In response to these concerns, my
amendment makes it clear that the exemption for roads
serving forests only extends to non-public roads. In
other words, only private roads serving forests would
benefit from this exemption. A new entrance on to a
public road will still require planning permission in
accordance with existing planning regulations.
Mr. Coogan:
I understood that non-public roads were mentioned in the
Bill. While I am concerned about the construction of
roads, other Members expressed concerns that roads
exiting on to a public road would be exempt. We had a
problem with the definition of a road. Is a track used by
felling machinery defined as a road? We spoke about hard
surfaced roads and we were concerned they could be used
for whatever purpose one wished once they were
constructed.
I came across
an example recently where an individual claimed the road
he was constructing was for land reclamation purposes.
However, that was not the case. Under the Bill, there is
no way of stopping him from doing that. He will probably
apply for planning permission to build a number of houses
on the land and he will prove the infrastructure is
already in place, which will make it easier to get
permission. We want to ensure the word
"construction" is not acceptable and that
people will have to go through the planning process.
Mr. Norris:
I support Senator Coogan. The Minister has gone some way
to meet our concerns, particularly with regard to the
development of forestry and especially in light of the
fact that Coillte may be privatised, which would
introduce a new commercial element.
Amendment
agreed to.
An
Leas-Chathaoirleach: Amendment No. 9 is a Government
amendment and amendment No. 10 is an alternative.
Amendments Nos. 9 and 10 may be discussed together by
agreement.
Government
amendment No. 9:
In page 26,
between lines 28 and 29, to insert the following:
"(d)
where the development to which the application
relates would materially affect a protected structure
or is situated in an area declared to be an area of
special amenity under section 185, an
indication of this fact,".
Mr. Dempsey:
I promised on Committee Stage to introduce this amendment
to add to the content of the register in the interests of
making it as user friendly as possible. This amendment
would require the planning authority to show on the
register when an application for development would
materially affect a protected structure or when the
proposed development is in an area of special amenity.
This amendment covers the point Senator Norris and others
made on Committee Stage. On that basis, I ask him not to
press his amendment.
Mr. Norris:
I am grateful to the Minister for accepting the bulk of
the principle involved. It is not quite as strong as my
amendment because it uses the words "materially
affect". I presume some changes will not be
registered. I am left wondering who will decide that it
will "materially affect" or that it will be put
on the register. If there is difficulty defining a
material contravention, surely the same argument applies
to "materially affect"? The Minister has argued
on different sides of the case. I will not press the
amendment and I am glad the Minister has gone as far as
he has in meeting it.
Amendment
agreed to.
Amendment No.
10 not moved.
Mr. Norris:
I move amendment No. 11:
In page 28,
line 38, to delete "development" and
substitute "sustainable land use".
Arguments were
made in the initial stages of discussion so I do not
propose to go over old ground. It is a reasonable
amendment and I commend it to the House.
Ms O'Meara:
I second the amendment.
Mr. Dempsey:
As I explained on Committee Stage, we have tried to use
as much as possible normal and accepted wording
throughout the Bill. The normal and accepted wording for
the city or county plan is the development plan. Such a
word change does not add anything substantive to the
Bill. It does not bring the ethos of sustainable
development into the Bill, as that is already in many
other provisions of the Bill. I ask the Senator to
withdraw the amendment.
Mr. Norris:
I thank the Minister for his reply. The word
"development" suggests something aggressive,
interventionist and commercial. However, I will not press
the amendment.
Amendment, by
leave, withdrawn.
An
Leas-Chathaoirleach: Amendment No. 12 is a Government
amendment and amendment No. 22 is an alternative.
Amendments Nos. 12 and 22 may be discussed together by
agreement.
Government
amendment No. 12:
In page 29,
between lines 13 and 14, to insert the following:
"(5)
In making a development plan in accordance with this
Chapter, a planning authority shall, where
appropriate, take into account any significant likely
effects the implementation of the plan may have on
the area of any adjoining planning authority having
regard in particular to any observations or
submissions made by the adjoining authority.".
Mr. Dempsey:
Senator Coogan spoke about this matter on Committee Stage
and we said we would try to respond to it. This amendment
requires a planning authority, where appropriate, to take
into account any significant effects which the plan might
have on the area of an adjoining authority, in particular
where an adjoining authority has made submissions or
observations to the authority. I had fears about Senator
Coogan's amendment. While I accepted the principle and
the thrust of what he proposed, I was afraid we would
cause problems for ourselves by making it rigid and
statutory. I hope this amendment responds fully to
Senator Coogan's concerns. It is a good amendment which
is necessary to improve the Bill.
Mr. Coogan:
I thank the Minister for tabling this amendment which is
much better than mine. It deals with the full thrust of
what I intended. It is only right and just that a local
authority must take into account developments in an
adjoining authority.
Mr. Walsh:
I also welcome the amendment which recognises that it is
often the local authority which makes the observations
that will be greatly affected by the decision made by a
county council in another county.
Amendment
agreed to.
Mr. Coogan:
I move amendment No. 13:
In page 29,
line 25, after "question." to insert
"These written statements and plans will include
the likely effects on landscape
characterisation.".
I use the term
"landscape characterisation" because something
can affect a landscape in the same way as it can affect a
streetscape. We should examine the likely effects any
development would have on landscape characteristics.
While some aspects of the view are taken into account,
often they are not all taken into account. An electricity
substation in a scenic part of Connemara was painted
green in an attempt to disguise it so that it merged into
the background. That is not always as effective as it
should be. The regulations should ensure that such
objects should be sunk below ground level or surrounded
by trees native to that area where appropriate. The
landscape and the effect of a development on it should be
taken into account.
Mr. Dempsey:
Senator Coogan expressed himself eloquently on Committee
Stage when this was discussed. I thought we had agreed
then that my amendment addressed his concerns. That
amendment is now contained in section 10(2)(d):
"the preservation of the character of the landscape
where, and to the extent that, in the opinion of the
planning authority, the proper planning and sustainable
development of the area requires it, including the
preservation of views and prospects and the amenities of
places and features of natural beauty or interest;".
We agreed on Committee Stage that that wording met the
concerns of the Senator. For that reason I ask him to
withdraw this amendment. It is close to the Senator's
heart and he spoke eloquently about it on Committee Stage
but it is now covered.
Mr. Coogan:
On Committee Stage I tried to make the point that it
should have been included at an earlier stage in the
Bill. I accept it is covered and withdraw the amendment.
Amendment, by
leave, withdrawn.
Mr. Coogan:
I move amendment No. 14:
In page 29,
line 40, after "heritage" to insert ",
as defined by the Heritage Act, 1995".
We discussed
this on Committee Stage. My concern was that the
definition might be clearer in the Heritage Act and I
asked the Minister to examine it. He said he would. We
did not debate the matter in detail. I would like to know
if the Minister has looked at it and if he feels it could
be included.
Mr. Dempsey:
We discussed this briefly but, as I explained on
Committee Stage, the situation has not changed. The term
"natural heritage" is not defined in the
Heritage Act. We are back to square one with that. The
amendment would not, therefore, make any sense in this
context.
Amendment, by
leave, withdrawn.
An
Leas-Chathaoirleach: Amendment No. 17 is related to
amendment No. 15 and they may be taken together by
agreement.
Mr. Norris:
I move amendment No. 15:
In page 30,
line 7, after "amenities" to insert
"including rights of way".
I have been
briefed on this and it was brought to my attention that
the waters were muddied by the fact that the two
amendments were discussed together on Committee Stage.
Both amendments sought to amend section 10(2), which
deals with mandatory matters to be included in
development plans. The first of the two amendments,
amendment No. 44 on Committee Stage, sought to amend
section 10(2)(h) by including rights of way. Amendment
No. 49 on Committee Stage sought to provide an additional
subclause by making it mandatory to make a list of rights
of way.
Amendment No.
15 deals with a matter about which there was some
confusion on Committee Stage when amendments Nos. 44 and
49 were taken together. This simple amendment seeks to
highlight the importance of rights of way. It imposes no
burden on local authorities and, in fact, appears already
in most county development plans.
I do not need
to labour the importance of rights of way. They are a
significant part of our heritage. Increasingly people
spend their leisure time making use of these rights of
way. With increasing urbanisation people must have legal
access to the countryside and natural amenities. One of
the groups which briefed me, Keep Ireland Open, informed
me that access in many areas is now being denied by
landowners. The only way to rectify this is by the
maintenance and indeed creation of rights of way. I hope
the Minister will accept this simple amendment.
Amendment No.
17 was not fully teased out when it was debated on
Committee Stage. The Minister's response was to refer to
section 14, which removes a ridiculous layer of
bureaucracy in existing legislation and makes it easier
for councils to establish the legality of a specific
public right of way. It does not, however, make the
preparation of a list mandatory. If we are serious about
rights of way, it should.
Looking back at
the debate, I was concerned by the negative quality of
the Minister's response. He referred to the onerous job
of protecting and maintaining rights of way. Of course it
is onerous. Most local authority tasks are onerous. We
cannot avoid such tasks by saying they are a burden, we
should not do them and they need not be put in the Bill.
It is impossible to make legislative progress in that
manner - simply to exclude things from consideration
because they are bit of a problem.
The Minister
talked about possible court cases. That is a possibility.
At least this Bill would provide the framework within
which those cases would be heard and would provide one
which would be positive from the point of view of those
wishing to secure rights of way.
In conclusion
the Minister said, "It is not practical or legally
sound to require rights of way to be included in the
development plan." That is an outrageous statement
because it sends a message from the Minister to local
authorities that rights of way are nothing more than a
pain in the backside - perhaps I should say they are
"onerous" - and the less one has to do with
them, the better. If the Minister feels they should not
be bothered with because they are onerous, the local
authorities will certainly take their cue from him. They
will say, "The Minister thinks it is onerous. Look
at all the powers and staff he has. If he thinks it is
onerous, we will not bother with it."
For that reason
it would be a disastrous abrogation of responsibility by
the Department and the Minister when they should be
giving a lead to local authorities. I urge the Minister
to accept both amendments.
Mr. Coogan:
One of the pastimes which is becoming more popular is
hill and country walking. If I was a farmer I would be
concerned about trespassing and other rules and
regulations, but I would prefer to know if something was
a right of way within which people would have to stay to
avoid trespassing on my land. It would be confirmed in
that way.
I do not like
to draw comparisons with Britain but traditionally the
value of rights of way has been recognised there for
walkers, horse riders and photographers. These rights of
way are easily preserved. The more they are used, the
less work is needed on them. Most of them are mere
pathways. These amendments do not seek street lighting
and concrete paving, they seek to preserve the paths by
trimming overgrown hedges and such so they are kept open.
They would also make a list available so people would
know exactly where they can go.
Mr. Norris:
That is the way in which cliff walks are maintained.
Mr. Coogan:
Exactly.
Ms O'Meara:
I support these amendments. Senator Coogan mentioned the
increasing popularity of hill walking. This is an
activity which is not just increasingly popular, it is
increasingly important for tourism, particularly for
counties which do not have a coastline and which are
developing inland tourism. Walking is the activity which
is expanding most in terms of its attraction to foreign
visitors. It is important that this Bill should clarify
the matter so that problems do not arise in the future.
It is not that we would be placing onerous
responsibilities on local authorities that they do not
already have. They are partners with other sectors within
counties and regions in promoting tourism and in ensuring
landowners are protected, that everybody knows where
rights of way are situated and that they are properly
maintained, that the signage, where appropriate, is
maintained and that the system is working as well as
possible.
Mr. Dempsey:
This is a classic example where one improves something
and is then told by everybody that one should improve it
further. I am in favour of public rights of way and
encouraging as many people as possible to engage in hill
walking and other healthy activities. New and simplified
procedures are set out in section 14 to allow a planning
authority include specific rights of way in its
development plan. Once included it will not be necessary
to continue to notify landowners as required under the
provisions of the 1963 Act which contains a small section
on rights on way. This matter was raised with me many
years ago when I was in opposition by former Deputy Roger
Garland who is in the Gallery. While he regards this
section as an improvement, he takes the view that it is
only removing a stupid provision but at least we are
doing that much.
There is a
danger that the amendments would require a planning
authority to protect and maintain all rights of way in
its functional area. Whether one would describe this as a
pain in the backside or onerous, it would not be
practical to place such an obligation on local
authorities. As Senators are aware it is often difficult
to know where a public right of way is situated. For this
reason uniquely section 14 provides for a right of appeal
to the Circuit Court where somebody objects to the
inclusion of a right of way in a development plan. Such a
dispute can only be resolved through the courts. As I
said on Committee Stage, it would not be practical or
legally sound to require that all rights of way be
included in a development plan. Paragraph 8 of Part IV of
the First Schedule specifically provides for the
inclusion of rights of way to ensure their preservation,
particularly those which give access to mountains,
lakeshores, river banks and so on.
The Bill allows
a local authority to include rights of way in its
development plan at any time through a public
notification procedure. Interested members of the public
and groups will now have an opportunity of ensuring
rights of way which give access to river banks,
lakeshores, mountains and so on are preserved by their
inclusion in development plans and once listed are not
removed. This is a major advance.
Whether one
would describe them as onerous, the amendments are not
legally sound. On that basis I cannot accept either of
them.
Mr. Norris:
As we have much work to do I will not press the
amendment, although I am inclined to do so. I imagine the
matter will be raised again in the other House. On the
question of it being onerous, that might be a good thing,
particularly if this is a resource we will develop. On
the neighbouring island local authorities are required to
maintain rights of way. That is the reason they do such a
good job and it is such a pleasure to go on walking tours
in England in particular. It is also the reason they are
recognised as a national resource.
In the old days
boreens competed for attention in local authorities with
really serious problems of housing, health and so on and
there was no money to do these things. One could then
have made an argument that they were onerous because they
might take money away from more essential projects.
Nowadays, however, particularly in light of what Senator
O'Meara said, which is absolutely true in terms of the
development of the tourism industry, it is no harm to
require that they be maintained properly. As I mentioned
in an interjection when Senator Coogan was speaking, the
hill walks in Howth are maintained. It is important that
they are maintained not just to ensure public access but
also public safety. Some of these areas, if not
maintained, can rapidly become dangerous because of
erosion.
Amendment, by
leave, withdrawn.
Government
amendment No. 16:
In page 30,
line 12, after "Gaeltacht", where it
firstly occurs, to insert "including the
promotion of Irish as the community language".
Mr. Dempsey:
Bhí an-chuid dea-thoil anseo nuair a phlé muid ceist na
Gaeltachta le linn céim an Choiste. Bhíomar go léir
aontaithe go bhféadfadh ról dearfach a bheith ag an
gcóras pleanála i gcaomhnú agus neartú na Gaeltachta,
cé nach rabhamar go h-iomlán ar aon intinn conas sin a
chur chun cinn.
There was
general agreement on Committee Stage about strengthening
the Gaeltacht. My amendment strengthened the references
to the protection of the Gaeltacht in the development
plan. Senator Ryan in particular suggested that the
amendment could be phrased more positively. I am
responding by further amending section 10 to provide that
the development plan should contain objectives to protect
the linguistic and cultural heritage of the Gaeltacht and
to promote Irish as the community language of the
Gaeltacht. I hope this will meet the points raised on
Committee Stage.
Mr. Coogan:
Tá mé lán sásta leis an leasuithe seo. The intention
of the amendments related to the Gaeltacht was to ensure
protection of the Gaeltacht and, in particular, the Irish
language. In Ring there was an imposition of a large
development which the local community believed would
encroach on the Gaeltacht and would not be committed to
it. There are a number of large holiday home developments
throughout Connemara where are all the signs are in
English. At the very least they should be in Irish. If
one travelled to a foreign country and did not know the
language one would soon learn the difference between fir
and mná by mistake. That mistake might be made in some
cases. The thrust of the amendment is worthwhile.
Mr. Walsh: Cosúil
leis an Seanadóir Coogan cuirim fáilte roimh an leasú.
Molaim an tAire. Táimid go léir ar aon aigne go bhfuil
dualgas orainn an Ghaeilge a chur chun cinn agus tá sé
níos láidre sa Bhille seo anois.
Mr. Norris: Ar
an gcéad dul síos ba mhaith liom a rá go díreach leis
an Aire, go raibhmíle maith agat agus tá mé sásta
leis an leasú seo.
I put down a
number of amendments on this subject and the Minister has
combined them all into this one amendment, which is the
principle of the matter, and I am grateful to him for
that. For that reason, I will not move the screed of
amendments in my name, with the exception of an important
related amendment which I hope the Minister will examine.
It involves the question of making facilities available
for the hearing of planning cases through the medium of
Irish. I hope I will be here to argue the point. It is
related to this and it is virtually the only one of the
amendments in my name remaining on the Order Paper. I
hope the Minister will be able to accept it, regardless
of whether I am in the House.
Amendment
agreed to.
Amendment No.
17 not moved.
Ms O'Meara: I
move amendment No. 18:
In page
30, line 33, after
"any" to insert
"variation thereof or in
any".
This amendment,
which we discussed on Committee Stage, extends the Bill
by removing any presumption that land which has been
zoned in a particular way will not be altered in any
variation of the development plan. This will help to
reduce the possibility of a landowner taking a case
against a properly adopted variation of the plan.
Mr. Norris: I
second the amendment.
Mr. Dempsey:
Subsection (8) of section 10 makes it clear that
there will be no presumption in law that any land zoned
will remain so zoned in any subsequent development plan.
The amendment put down to this section would extend this
presumption to any variation of a development plan. I
stated on Committee Stage that while at first glance this
seemed to be a sensible amendment, it was not well
founded. For example, it should be noted that the
rezoning of land midway through a development plan period
could have compensation consequences as landowners would
have an expectation that their land would be zoned for a
six year period. That is not something local authorities
would want. During the debate on Committee Stage, Senator
O'Meara clarified that the intention of the amendment was
that there would be no presumption that any change in
zoning made by way of variation during the lifetime of
the plan would necessarily continue into the next plan.
The amendment, however, would not have that effect. In
any case it should be noted that the major changes we
have made to the provisions of the 1963 Act would render
the intention of Senator O'Meara's amendment unnecessary.
There has
always been confusion between a varied plan and a new
development plan, but this has been clarified in the Bill
and it means that where a plan is varied within the
lifetime of the plan, that variation automatically forms
part of the original plan. Subsection (8) makes it clear
that there will be no presumption that any zoning in the
plan, regardless of whether it was contained in the
original plan or inserted by way of variation, will
continue in the subsequent plan. The intention in Senator
O'Meara's amendment, therefore, is already covered in the
Bill as drafted.
Amendment, by
leave, withdrawn.
An
Leas-Chathaoirleach Amendment No. 19 is in the name
of Senator Coogan. Amendments Nos. 24, 29 and 32 are
cognate so they will be discussed together, by agreement.
Mr. Coogan: I
move amendment No. 19:
In page
30, line 43, after
"area" to insert
"and where available to
announce on local radio, or
radios and on the Internet".
The intention
in the Bill is to have as much public participation as
possible in terms of planning and development. This could
be suitably done through local radio stations. As far as
I am aware, many local authorities have websites on the
Internet and while the Internet is currently available
only to a minority of people, it is growing in popularity
and if people want to know what is happening in their
local authority, they refer to it. I do not want to refer
again to the little old lady in the wheelchair who cannot
afford the local newspaper, even though such people do
exist, but I would be satisfied if the Minister would
ensure that at least in the guidelines all available
forms of media would be used for this purpose.
Ms O'Meara: I
second the amendment, particularly the reference to the
Internet. This was one of the most useful set of
amendments put down on Committee Stage and we had a
lengthy discussion at that stage. The inclusion of the
Internet in the amendment is important because I
understand Ireland has one of the highest rates of
Internet usage in western Europe. We are obviously
heading towards mass usage of this technology. I support
Senator Coogan's sentiments in that the inclusion of this
amendment would encourage the greatest level of public
participation and ensure that modern technology is
included in the framework of the Bill.
Mr. Dempsey:
I assure the Senators that the intent of these amendments
is already covered in section 225(1) which provides that
where any provision of this Act requires notice to be
given, the public planning authority may, to the extent
they consider necessary, draw the attention of the public
to the notice through other forms of media, including the
broadcast media and electronic forms of providing
information. That meets the point in Senator Coogan's
amendment. I take on board what he said in relation to
guidelines. We will be having further discussions with
local authorities on the implementation of the Bill when
it is completed and we will encourage them to use every
form of media to get the information across to the
public.
Amendment, by
leave, withdrawn.
An
Leas-Chathaoirleach: Amendment No. 20 is a Government
amendment. Amendments Nos. 23, 25, 26 and 28 are related
so we will discuss Nos. 20, 23, 25, 26 and 28 together,
by agreement.
Government
amendment No. 20:
In page 31,
line 32, to delete "6 months" and
substitute "5 months".
Mr. Dempsey:
On Committee Stage, many Members called for the retention
of the three months public display period for the draft
development plan. I said at that time that I was willing
to examine this matter but that I did not want to
compromise my overall aim of having the development plan
completed within the six year period, which was
sufficiently long. These amendments, therefore, provide
that the initial period for reviewing an existing plan
and for drawing up a draft development plan will last for
11 months instead of the proposed year. This in turn
allows for a one year and one month period for adopting
the final plan and includes the extended public
consultation period to 12 weeks instead of eight weeks as
I originally proposed. The extra time is achieved by
reducing from six months to five months the
preconsultation phase in section 11 before the draft
development plan is drawn up. A number of amendments are
involved. The changes in the time period in one provision
obviously will have knock-on consequences for others. I
hope these amendments meet the concerns expressed.
Ms O'Meara:
I welcome the Minister's amendments and his remarks. He
has noted the concerns raised by us on Committee Stage.
The amendments are very acceptable.
Mr. Coogan:
The Minister has struck the correct balance.
Amendment
agreed to.
An
Leas-Chathaoirleach: Amendment No. 21 is in the name
of Senator Henry. Amendment No. 34 is an alternative and
they may be discussed together by agreement.
Ms O'Meara:
I move amendment No. 21:
In page 32,
line 4, after "consideration." to insert
"This report shall be available for inspection
by the public.".
Mr. Coogan:
I second the amendment.
Mr. Dempsey:
My amendment ensures that reports prepared by the manager
on the various stages of the development plan process are
made available to the public. This is in response to
amendments tabled by Senator Henry on Committee Stage.
This concerns the report on the preparation of the draft
development plan under section 11, the report on the
results of the public consultation on the draft
development plan under section 12 and the report on the
results of public consultation on a variation of the
development plan under section 13. The reports mentioned
by Senator Henry will be made public through the
comprehensive amendment which I have tabled. On that
basis I ask that this amendment be withdrawn.
Amendment, by
leave, withdrawn.
Amendment No.
22 not moved.
Government
amendment No. 23:
In page 32,
line 20, to delete "one year" and
substitute "11 months".
Amendment
agreed to.
Amendment No.
24 not moved.
An
Leas-Chathaoirleach: Amendment No. 25 is a Government
amendment. It was also tabled by Senators Norris, Ross,
O'Meara, Costello and Ryan.
Government
amendment No. 25:
In page 32,
line 36, to delete "8 weeks" and substitute
"12 weeks".
Amendment
agreed to.
Government
amendment No. 26:
In page 33,
line 4, to delete "8 weeks" and substitute
"12 weeks".
Amendment
agreed to.
Ms O'Meara:
I move amendment No. 27:
In page 33,
lines 15 to 17, to delete ", if the proposed
addition or deletion was recommended by the Minister
for Arts, Heritage, Gaeltacht and the Islands,".
This matter was
discussed on Committee Stage.
Mr. Norris:
I second the amendment.
Mr. Dempsey:
There was some discussion on this and much confusion on
Committee Stage - even I got confused. The effect of the
deletion would be to require planning authorities to send
copies of any submissions or observations received on any
proposed addition or deletion from the record of
protected structures to the Minister for Arts, Heritage,
Gaeltacht and the Islands for observation regardless of
whether that addition or deletion was recommended by him
or her. As I tried to explain on Committee Stage,
structures of international, national or regional
importance will be recommended by the Minister for Arts,
Heritage, Gaeltacht and the Islands based on their status
in the national inventory of architectural heritage.
However, the planning authority cannot include other
structures of solely local importance in the record of
protected structures.
As matters
stand planning authorities will notify the Minister of a
proposal to add or exclude a structure of local
importance, but the Minister will have no involvement in
recommending its inclusion and, therefore, no submissions
on the matter need to be forwarded to him or her. The
Minister will receive a proposal to add or exclude a
structure of local importance, but will have no direct
involvement in it. Therefore, it is not necessary for the
Minister to receive submissions. Decisions on buildings
of local importance are a matter for the planning
authority and I see no reason to burden the Minister with
additional unnecessary work. For that reason I am not
prepared to accept the amendment and ask the Senator to
withdraw it.
I am sure that
when the Minister gets notification regarding a local
structure in which she has a specific interest she will
be able to make observations. We are trying to avoid the
sending of all submissions on local structures to the
Minister. In the midst of such submissions there could be
one of national importance on which we do not return
information in time thus leading to a certain course of
events. I spoke to officials subsequent to the discussion
on Committee Stage. This has been cleared with the
Minister who, together with her officials, is perfectly
happy with the section as it stands.
Amendment, by
leave, withdrawn.
Government
amendment No. 28:
In page 33,
line 22, to delete "16 weeks" and
substitute "20 weeks".
Amendment
agreed to.
Amendment No.
29 not moved.
An
Leas-Chathaoirleach: Amendment No. 30 is in the name
of Senator Coogan. Amendment No. 33 is cognate and they
may be discussed together by agreement.
Mr. Coogan:
I move amendment No. 30:
In page 34,
between lines 21 and 22, to insert the following:
"(iii)
provide full copies of the submissions to the members
of the planning authority, where requested.".
The wording of
amendments No. 30 and 33 should be exactly the same and
include the phrase "where requested". The
section provides that the manager shall prepare a report.
A report is a synopsis of the comments and observations
made and may be subjective in nature. I am not saying a
manager would produce such a report deliberately, but he
may do so unwittingly. Therefore, the report may be a
slanted version. While I know that local authority
members are entitled to have access to all submissions, I
wanted to include the proviso, "where
requested" on the simple basis that it would mean
the manager did not have to supply comments and
observations to every member, given the associated work.
It would ensure that a councillor who wished to see
material would be entitled to do so, while at the same
time it would not be mandatory for the material to be
given to every member of a local authority.
Ms O'Meara:
I second the amendment.
Mr. Walsh:
I concur with what has been said. The current position is
that a member is entitled to any submissions which are
received. To avoid doubt perhaps the Minister, in the
context of the local government legislation, will look at
this matter and ensure that any communication with the
local authority is available on request to individual
members. A manager should not be allowed take the view
that he is not prepared to divulge information unless the
council resolves that it be divulged. Individual members
with electoral mandates should be entitled to such
material.
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