Planning and Development Bill, 1999:
Committee Stage (Resumed)
23rd November, 1999 SECTION 23. Mr. Norris: I move amendment No. 107:
This is a minor amendment to cover any other additional attendant circumstances and amenities. |
Minister for the Environment and Local
Government (Mr. Dempsey): I apologise to you, a Leas-Chathaoirligh, and to the House
for not being here at 1.15 p.m. Mr. Norris: The delay was greatly welcomed. It allowed me to have coffee and a sandwich. Mr. Dempsey: This amendment would require regional planning guidelines to address the preservation and protection of the "environment", including its amenities. I have examined this and it is not clear what additional benefits the addition of the words "and its amenities" would bring to the provision. It does not add anything to it because it is implied already. When one talks about the protection of the environment one is talking about the environment and all of the amenities. In the interest of clarity it would be preferable not to include the words proposed. My advice is that it is better to leave them out and to leave the provision as it is. Mr. Norris: I do not want to hold up the House. We have a great deal of work to do. I take on board the Minister's advice that this is covered. It is not an amendment on which I was given a strong brief and I will not press it. Amendment, by leave, withdrawn. Mr. Norris: I move amendment No. 108:
This is a similar amendment and it involves the inclusion of the word "architectural" as well as "archaeological". I feel a little stronger about this amendment because, despite the Minister's goodwill and good deeds in this matter, there has been a tradition of neglecting the architectural heritage in favour of the archaeological and when we did consider architectural heritage, it was in terms of traditional buildings before 1800 - there was a kind of cut-off point. Whereas at the level at which the Minister operates this attitude has changed completely, it may be that the change has not filtered down completely. It is important that we specify architectural as well as archaeological heritage. There is a stronger case to be made here for the addition of this simple phrase. |
Dr. Henry: I support
Senator Norris. There is, sometimes, a lack of respect for recent architecture, in
particular. I would be grateful if the Minister accepted Senator Norris's amendment. Mr. Costello: This amendment is worthwhile because it extends the range of heritage specifically referred to in relation to the preservation and protection of the environment to include architectural heritage. In an urban setting the built or architectural heritage is relevant. It would make sense to accept this amendment. Mr. Dempsey: As with the previous amendment, it is meant to be included. The architectural heritage is part of the overall environment and, therefore, these guidelines will have to address its preservation and protection as part of that environment. Furthermore, it is given specific and direct protection through the mandatory objectives set out in the development plan and through the provisions of Part IV of the Bill. In view of the kind remarks made by various Senators about my role I will accept the amendment. Mr. Norris: I thank the Minister. I realise architecture is specified in other sections of the Bill but it seems appropriate to have it here where archaeological concerns are specified. I am grateful to the Minister for accepting the amendment. Amendment agreed to. Amendment No. 109 not moved. Government amendment No. 110:
Amendment agreed to. Question proposed: "That section 23, as amended, stand part of the Bill." Mr. Norris: I welcome section 23 in general. I particularly welcome amendment No. 110 because it strengthens the section - bearing something in mind is much weaker than taking it into account. The Minister is strengthening the Bill. Question put and agreed to. SECTION 24. Amendments Nos. 111 to 115, inclusive, not moved. Question proposed: "That section 24 stand part of the Bill." Mr. Norris: I am not pressing these amendments because we have a lot of work to do and it would be foolish to do so. I express my appreciation to the Minister for going some way to meet the concerns we expressed and, in particular, by including Údarás na Gaeltachta as a prescribed body. This is significant movement and very much to be welcomed. Question put and agreed to. Amendment No. 116 not moved. Section 25 agreed to. SECTION 26. Amendments Nos. 117 and 118 not moved. Question proposed: "That section 26 stand part of the Bill." Mr. Coogan: We recognise that it would be difficult to implement the spirit of amendments Nos. 117 and 118, but what the Minister has done is acceptable. Mr. Costello: Section 26(1) states: "Where a regional authority has made regional planning guidelines, it may, from time to time, or at the direction of the Minister ...". Would it not be more desirable to use the phrase "it shall from time to time, or at the direction of the Minister ..."? It would be expected that the regional planning guidelines would be brought up to date on a regular basis, that there would not be a time lapse and that it would not have to come back to the Minister to give a direction on the matter. Would "shall" not be more desirable in that context? Mr. Dempsey: That is not what is intended. The Minister will have to direct regional authorities to do them. They can of their own volition review the guidelines and I imagine they will. That is one set of circumstances. The Minister can issue a directive telling them to review their planning guidelines. The Senator's interpretation may be that the direction of the Minister has to be given. Mr. Costello: No, it is not. It is that the regional authority may, from time to time, review those guidelines and make new guidelines. The alternative is that they may do so at the direction of the Minister or that they shall do so at the direction of the Minister. It should be part and parcel of the regional authority's responsibility. Once it produces and adopts guidelines it would be necessary to update them on a regular basis otherwise those guidelines may be irrelevant. In that case the Minister may tell a local authority or a regional planning authority that they have been negligent. It should not reach that stage. |
Mr. Dempsey: I take the Senator's good
point and I will look at it on Report Stage. The provision may not be as clear as we
intend. As the Senator spoke, I began to have a doubt about the words "it may, from
time to time, or at the direction". I am not sure whether "shall" should be
inserted " at the direction of the Minister". There may be an effect on section
21. I will look at it. Mr. Costello: The word "shall" is used in section 21. Mr. Dempsey: I will look at that. Question put and agreed to. SECTION 27. Question proposed: "That section 27 stand part of the Bill." Mr. Walsh: I have some misgivings. I note there are no amendments tabled on this section. Section 27(2) states: "The Minister may, by order, determine that planning authorities shall comply with any regional planning guidelines in force for their area, or any part thereof ...". To what extent does this provision impose on the autonomy of the local authority to make its development plan? If a local authority wishes to ignore aspects of a regional development plan it should be empowered to do so. A waste management study has been completed in the south-east. If its recommendations were included in the regional planning guidelines it would not find favour with the local authority of which I am a member. I would be aghast to think that the democratic strength of a local authority could be overruled by the Minister in such a situation. We have the most centralised system of local government in the world and I would regret if my interpretation of this provision were correct. Perhaps the Minister could clarify the position. I know it would be seen like that by many local authorities if they could be overruled by the Minister simply because the regional authority had made a decision. The case to which I refer is a matter of disagreement between one local authority and the regional authority. Mr. Costello: Senator Walsh raised an important point. The wording of section 27(1) does not seem to put too much emphasis on the planning authority having a responsibility other than it "shall have regard to any regional planning guidelines...." yet the next paragraph states, like a sledgehammer, that "the Minister may, by order, determine that planning authorities shall comply with any regional planning guidelines....". It is suggested the planning authority will have regard to the regional planning guidelines and then, should they not, the Minister will intervene, which is quite understated. I would have thought it would be better to rephrase it in the other direction and state "a planning authority shall take account of...." or something stronger rather than giving unilateral authority to the Minister. Perhaps the Minister will look at this. I agree with Senator Walsh that this would be seen as a direct intrusion by the Minister in local authority affairs. Section 27 (4) refers to a review of the existing plan and subsection (5) states "the planning authority, may have, but shall not be obliged to have, regard to any regional planning guidelines after 6 years from the making of such guidelines." Why is this subsection necessary? Surely the guidelines should be reviewed within six years. It should be compulsory that any regional plan or guidelines be updated within a six year period. Allowing the planning authority to disregard guidelines more than six years old is a sloppy way of putting it - why should they be more than six years old? Surely the review should have taken place within six years. The planning authority must produce its development plan within a six year period anyway so why should the guidelines be disregarded after that? Perhaps the Minister will take account of this and look at the section again. Mr. Coogan: I agree with Senators Walsh and Coogan. Section 27(1) provides that the local authority shall have regard to the regional authority. However, section 27(2) reverses the position and states that local authorities when preparing and making a development plan shall comply with any regional planning guidelines in force for the area. I would have thought subsections (1) and (2) should have the same standing and would provide that the local authority shall take into account a regional plan and vice versa. The point has been adequately made and I concur. It is against everything I know about the Minister to in any way undermine the authority of county councils, whom he has supported over the years. Perhaps he will look at this section again. Mr. Norris: I appreciate my colleagues' qualms about local democracy and it is important it should be strengthened. However, I assume this power will only be exercised occasionally by the Minister. Mr. Costello: It may be exercised by future Ministers. Mr. Norris: By any Minister. However, it is not envisaged for regular use. I could see where there could be a planning guideline for an entire region on which the majority of planning and local authorities are in agreement but one might stand against it for its own reasons; in the interests of the region as a whole, it would clearly be better if it was required to comply with the regional plan. It is a question of balancing the rights of local democracy, in which we all believe, and the greater interest of the area or the country. Mr. Dempsey: Perhaps Senator Costello should look at the six year period in the context of our previous discussion. If the guidelines are not reviewed every six years, they can quickly become out of date. This section relates to the concern expressed by the Senator earlier that regional authorities would not renew their guidelines and means they know if they do not review them at least once every six years, they will be deemed out of date and not relevant to the development plan. It is an incentive and the Senator should focus on that rather than section 27(2). We are saying to local and regional authorities if the regional guidelines are not reviewed within a six year period, a local authority need not take them into account. This probably answers the query raised by Senator Costello on section 26. It is included for fear regional guidelines which are not reviewed could become out of date. It is a useful safeguard and an incentive to regional authorities to bring them up to date. Senator Walsh raised the regional planning guidelines and was supported by Senators Costello and Coogan. This section gives power to the Minister to direct and override a local authority. There are similar provisions in the existing planning legislation which have not been used; Ministers have generally refrained from getting involved directly. As Senator Norris said, it is important that someone above the local authority should have power to direct it where it is clearly not in compliance with the regional plans and guidelines. To put it in context, regional planning guidelines are drawn up by a local authority for the greater good of the entire region. Local authorities have their say because they are consulted; Senator Costello may be familiar with the format of the consultations which took place on the strategic planning guidelines for the greater Dublin area in which the local authorities were involved, at an elected and a technical level. The expertise of elected representatives, technical staff and outside consultants is used to draw up regional planning guidelines which are then accepted by the local authorities in the region. Having gone through that, it would be a retrograde step if a local authority could suddenly decide not to participate in the overall development of its area. The other point raised by Senator Walsh relates to a waste management strategy, not regional planning guidelines. It is not covered in this section which deals with strategic planning of an area and does not cover the details of the location of a waste management facility. This is a broader issue and relates to settlement patterns, housing density, public transport, etc. There was an example of this about 12 months ago, relating to a certain local authority. The Government and most Members of the House supported the concept of increased densities in urban areas to prevent urban sprawl and ensure more sustainable development. During the preparation of its development plan the local authority decided to zone some land in an urbanised area at the level of one house per acre. This was totally contrary to any type of logic and reason or sustainable development and environmental protection considerations. Mr. Norris: They would be very expensive houses. Mr. Dempsey: I agree. On the basis of existing ministerial powers, it was not necessary for me to issue a directive. However, I made it clear that it was not in line with sustainable development policies. As Senators are aware, I am a strong advocate of local government. However, it and local democracy sometimes fail. It is necessary to provide some back up which would be used sparingly. As evidenced by previous examples under the Planning Acts from 1963 to 1998, ministerial directives are rarely used; some of the powers available to Ministers were never used. However, it is necessary to ensure that ultimately power rests with somebody other than the local authority in relation to agreed regional development guidelines. There should be some way to enforce the guidelines, but the power would be limited in terms of its application. Mr. Costello: I do not wish to unduly delay the proceedings but this section is important. It relates to regional planning guidelines but section 23 states that the objective of the guidelines shall be to provide a long-term strategic planning framework for the development of the region. It also lists the areas to be addressed which include housing strategy, population, industrial, transportation, waste management and waste disposal. They are most important but the provisions in relation to their implementation by the planning authorities are weakly expressed although they can be followed by the Minister using a sledgehammer. The provisions state that the planning authorities shall have regard to the guidelines, but stronger language should be used, for example, "due regard" or that they must take account of them. If it involves planning for an entire region, what is the point of including the guidelines if they may be disregarded? The section states that the planning authorities shall have regard to the guidelines, but they can then disregard them. The provision should use more forceful terms if it is to be a meaningful development in the context of the functions of the regional authority and if there is to be a more comprehensive planning policy than at present. The end of the section is equally weak. It goes out with a whimper by stating that the planning authority will not have to have regard to any regional plan after six years unless it is updated within that period. It would be more forceful if it stated that a review mechanism must be put in place prior to the development of a new plan. This would ensure the macro scene is considered by local authorities before they address their micro scenes. It would also ensure more cohesion, Perhaps the Minister could give this further consideration. Mr. Coogan: Senator Costello has taken a step further than the proposal I intended to make. I am aware there is a right of appeal by a local authority, but there should be a formalised appeal system where, if a local authority considers that a regional plan impinges on it, it could appeal directly to the Minister. If the Minister does not take on board Senator Costello's recommendation, perhaps he would consider formalising the appeal system. Mr. Walsh: I accept the Minister's response. All sides would accept that he has been a strong advocate of the strengthening of local government. My experience is that there has been little intrusion by the Minister or his predecessors in planning and development issues or the governance of areas by local councils. Perhaps the provision could be qualified to some extent regarding the common good aspects of regional developments or the national interest. It may be appropriate that the Minister could make his views known. I do not share Senator Costello's difficulty with subsection (1). We must be aware that the current regional authorities are not elected bodies; the members are nominated. The authorities also have advisory committees comprising people who do not have any democratic mandate; at least members of local authorities are nominated by them. I have a difficulty with the concept that such a body is in a position to override the wishes of democratically elected councillors. It is not the direction in which we should go in local democracy. Perhaps the Minister could consider all the suggestions made because we are ad idem on the need to strengthen local democracy. We want to ensure the legislation meets that concern. Mr. Dempsey: I will consider the suggestions which relate to sections 25, 26 and 27. As Senator Costello said, it may be possible to strengthen section 26 by making it more explicit that the plan must be updated every six years. It may be possible to change section 27(1) by replacing "shall have regard to" with "shall take account of", a phrase used elsewhere in the legislation. It might be a stronger term. Section 27(2) may also be considered, but I stress that it has not been, and probably will not be in the future, the desire of any Minister for the Environment and Local Government to get involved or embroiled in a local development plan issue. A residual power is available to the Minister under the current planning laws and he or she must, in terms of the national good, be in a position to issue directions occasionally. However, I am aware of the views expressed by Members and that the suggestions are designed to improve and strengthen the Bill in relation to regional planning. If improvements can be made on Report Stage, I will be pleased to introduce amendments. Question put and agreed to. |
SECTION 28.
An Leas-Chathaoirleach: Amendment No. 120 is cognisant to amendment No. 119 and both may be discussed together. Is that agreed? Agreed. Mr. Norris: I move amendment No. 119:
Amendment No. 120 states:
"which must be available for public inspection". The amendments relate to openness and transparency. Regarding amendment No. 119, the Minister is empowered to issue guidelines to planning authorities. However, in grammatical terms, I should have inserted "which must be available for public inspection" after "guidelines" to make it clearer. The section would be much tighter if it was included there. If the Minister accepts the principle of the amendment, perhaps he would consider inserting it there rather than the other position because we should aim for clarity. As we are seeking co-operation between the authorities and the public and there has been much talk about openness and transparency in Government, the guidelines should be available to the public for consultation. Dr. Henry: I support the case made by Senator Norris because the more open the measures, the more support they receive. The amendment would not cause any trouble to authorities in making plans public. Mr. Coogan: It may be an anecdotal point but the guidelines published and distributed to local authorities often do not reach councillors. I came across one recently with which I was familiar. This related to the recommended number of local authority houses which should be built in proportion to every 1,000 of population. I thought this to be valuable, but in speaking to two other councillors, neither was aware that these guidelines existed. While they are just guidelines, it is important when formulating a development plan or making recommendations about such a plan that local authority members should understand them. If local authority members do not readily receive these guidelines, how is the public expected to be aware of them? As guidelines relating to development plans are not regularly issued, perhaps they should be published in the press or, alternatively, in the hallway of the local authority offices under important notices. They should not be included down the list of other notices relating to bird habitats, photographs and so on. These notices should be clearly defined on a special notice board. Mr. Costello: Senator Coogan has made a valid point. Perhaps there should be an amendment to sections 28 and 29 proposing that guidelines are not just issued to the planning authority as a corporate body but to the elected members. Each member could then receive fresh guidelines on any policies the Minister deems necessary. These guidelines are not always circulated but they may come up in some format during meetings and so on. Perhaps there could be individual guidelines or a policy statement from the Minister to each public representative democratically elected to the local authority. Will the Minister indicate why the wording in section 28(5) varies from that in section 29(4)? Section 28(5) proposes that any amendment or revocation of the guidelines issued by the Minister shall be laid before each House of the Oireachtas. Under section 29(4), if it is a policy directive, the Minister will not inform the Houses that he has revoked or amended it. Why is there different wording in relation to informing the Houses of the Oireachtas on guidelines and policy directives? Mr. Dempsey: On the latter point, a policy directive would have very general application whereas guidelines may not. On the issue of each member receiving copies of guidelines and so on, it is my experience that guidelines and other directives issued by way of circular from the Department are usually brought to the attention of each member. I must admit that I am not sure whether this has yet taken effect. It was brought to my attention, perhaps by Senator Coogan, that some circulars issued to local authorities are brought to the attention of members while others are not. Perhaps a manager may deem a document to be of a technical nature rather than one of general policy. I have indicated to the local government section of the Department that in future circulars issued to managers, housing authorities or planning authorities should also be issued to the chairman so that he can inform members of their availability. A recent circular from the housing section of the Department was issued to chairpersons and the housing section. It is the practice that ministerial guidelines and directives are open to public access and so on. They should have the widest possible publication and I have no problem continuing this concept. However, I have a problem with the wording of the amendments in that they could be interpreted to mean that the only place these guidelines would be available is the Custom House. I will introduce an amendment on Report Stage which will make it clear that guidelines will be available at the offices of the local authorities, as suggested by Senator Coogan. This will also be made explicit in the Bill. Mr. Norris: I am pleased the Minister will introduce such an amendment on Report Stage. Amendment, by leave, withdrawn. Question proposed: "That section 28 stand part of the Bill." Mr. Costello: Regarding the Minister's comments on bringing guidelines and policy documents to the attention of chairpersons of local authorities, will he extend that to the new structures which have been put in place such as the chairs of the SPCs and area committees? Mr. Dempsey: Yes, to the relevant ones. Mr. Walsh: I support Senator Costello on that issue. It is important not to be over-prescriptive in what we ask local authorities to do. As councillors we interpret guidelines. Sometimes officials would like councillors to interpret them as a diktat from on high which cannot be deviated from. In my area I have seen a huge increase in the value of land as a result of increasing densities. The intention was to curtail the price of houses but now the unit cost a developer normally applies to the house covers just 16 or 17 houses rather than nine or ten as previously. In that situation it is important that the local authority members in whose area this type of thing happens can deviate from the guidelines in the interests of the people in the locality. Question put and agreed to. Amendment No. 120 not moved. Section 29 agreed to. SECTION 30. Mr. Costello: I move amendment No. 121:
This is a welcome section because it limits the powers of the Minister. It states that the Minister shall not exercise any power or control in relation to any particular case. Obviously the Minister's intent is to provide guidelines and policy on the general manner in which the planning authority does its business and makes decisions on planning applications. It would be appropriate if this limitation were extended to section 28. The Minister should not intrude in any particular case in terms of guidelines or policy directives issued. The amendment seeks to include both sections in that limitation. Mr. Dempsey: The amendment will be a valuable inclusion to the Bill. Amendment agreed to. Section 30, as amended, agreed to. SECTION 31. Mr. Norris: I move amendment No. 122:
This amendment provides for greater accountability and transparency and requires that the Oireachtas be informed not merely about the nature of the guidelines but also about the reasoning behind them. Dr. Henry: I support Senator Norris's amendment which will ensure that people become more involved in what is happening. The Minister will strengthen the Bill if he accepts the amendment. Mr. Dempsey: I have no difficulty with the spirit of the amendment. However, one of the things I am trying to do in respect of reforming local government is separate the concepts of local government and national government and allow local authorities the freedom to proceed with their business without interference from Members of this House or the Lower House. Mr. Norris: Many of them are members of local authorities and of the Oireachtas. Mr. Dempsey: I hope to put a stop to that from 2004. Mr. Norris: Well done. Mr. Dempsey: As already stated, I have no difficulty with the concept. This section involves the issuing of ministerial directions and stating the reasoning behind such directions. I accept the principle but I am advised that the amendment will have to be reworded. I have a personal problem with the amendment because what happens at local government level is not the business of the Houses of the Oireachtas. Mr. Norris: Come now, Minister----- Mr. Dempsey: The Senator cannot have it both ways. If we are going to abolish the dual mandate, we must inform people that they cannot interfere in the affairs of local authorities. I accept the principle of the amendment. If I decide not to bring forward an amendment reflecting the thrust of the Senator's proposal on Report Stage, I will inform him of that fact and he can re-table his amendment. Dr. Henry: We hope that the mechanism proposed by the amendment would not have to be used very often. Therefore, I hope the Minister's comments will satisfy Senator Norris. Mr. Norris: I welcome the Minister's statement that he is advised he can accept the amendment in principle and I note that he has a number of personal difficulties with it. I look forward to seeing the wording of a possible amendment in his name before Report Stage. If such an amendment does not appear, we will re-table this amendment. I also welcome the Minister's statement that he intends to abolish the dual mandate. I tabled a motion about this matter which has been on the Order Paper for some time and which was seconded by my good friend, Senator Ross. Unfortunately, the Senator joined a local authority and scuppered our plans. With regard to our keeping our noses out of the affairs of local authorities, someone once said that everything in life is political. I take that view and I believe that everything in the political life of this country is, in some measure, the business of this House. The Minister is correct to state that we should not vexatiously interfere in the affairs of local authorities. I cannot imagine that the Members of this House would ever wish to do so and I certainly would not. Some of my colleagues who are members of local authorities might feel that temptation occasionally. Rather than the amendment becoming less necessary by the removal the dual mandate, in my opinion the opposite is the case. If there are no members of local authorities with a specific niggle or grudge in the House after 2004, it will be much less likely that there will be interference. However, it is good that issues should be ventilated, particularly----- An Leas-Chathaoirleach: While the Senator's remarks are quite relevant, they are not relevant to the debate on the amendment. Mr. Norris: As I said about politics, if it is relevant at all it is relevant anywhere and everywhere. Mr. Costello: I wish to make a brief comment about the amendment. It is outlined in section 31 that the Minister must give stated reasons for his interference, if that is the word, in relation to a local authority's development plan. Obviously, those reasons must be stated somewhere and the amendment proposes that they be stated in both Houses and be made available for public inspection. Therefore, it is merely a question of how they will be brought into the public domain for the perusal of local authorities, members of the public and Members of the Oireachtas, who hold ultimate responsibility. Mr. Coogan: With regard to Senator Norris's comments in respect of members of local authorities who serve in the House, Senator Costello and I represent the Administrative Panel which, even when the dual mandate is abolished, will still have some Members who represent local authorities. I know the Senator will be glad to see that continue. Mr. Norris: I will. Amendment, by leave, withdrawn. Section 31 agreed to. |
SECTION 32.
An Leas-Chathaoirleach: Amendments Nos. 123, 124 and 180 are related and may be taken together by agreement. Dr. Henry: I move amendment No. 123:
I do not like section 32, as drafted, because it seems that a person can apply for planning permission either before or after the work is carried out - it really does not matter which. There are notorious examples of planning permission being sought post hoc. If I could recall one instance where an illegally built house or extension was pulled down, it would cheer me up a great deal. I accept that section 8 deals with the penalties to be imposed, one of the most serious of which appears to be a fine of £10,000. That is nothing to someone building a house worth £200,000 or £300,000. It is not even a daunting prospect for a person to have to spend a month in Castlerea Prison for failing to obtain planning permission. The only complaint I have had from anyone who was sent there is that there are not enough public telephones. A recent example of problems in this area is the house built at the end of the toll bridge over the Liffey valley in respect of which planning permission has never been obtained. Would it not be a good sign if we were to see this house being demolished, brick by brick, on the evening news? A very large extension was added to a house in Tipperary, which looked to be about twice the size of the original house, but I have not heard anyone state that it should be removed. I accept that section 8 allows for the demolition of a structure, but that provision is buried among a number which advocate the imposition of fines and prison terms in Castlerea. It is not acceptable that the section states a person may either obtain planning permission - even outline permission - before work proceeds or just apply for retention when the deed has been done. From experience, I have no reason to believe that heavy punishment will be visited on those who fail to apply for planning permission before proceeding with a development. The section adds legitimacy by stating that people can obtain permission either before or after a development proceeds. Mr. Norris: The whole principle of retention is a vicious one. Often it has been the practice for individuals and builders to go ahead and build, create the fact on the ground and look for retention subsequently. This is part of the ethos. It is bad because it constitutes a violation of the whole planning process. It is tedious, sometimes, going through the whole planning process. I have had to do it and I have had to modify things. It sometimes makes me laugh when I think of the work I did in George's Street over the years that I had to apply for planning permission. Some people asked me why I did not build and then seek retention, saying that nobody would stand in my way. The principle is wrong and I agree with Senator Henry on this. However, I put in a slightly different couple of amendments. The first one is in the same location as Senator Henry's amendment and is intended to prevent somebody deriving benefit from this kind of "cowboy" action. It prevents the occupation of any such house or building until proper permission has been gained from the local planning authority or an appeal from An Bord Pleanála has been granted. This would prevent people from benefiting from an illegal development. The second amendment is on page 53 and involves the deletion of section 34(12) which states:
This seeks to discourage the philosophy of retention. I hope the Minister will make some progress in this area. There are several different amendments put down. Senator Henry's amendment is stronger than mine in its intent because it forbids the entire process of retention. However, there may be room for some flexibility but there still should be some penalty. It is not appropriate that people should be allowed to build and occupy, endlessly argue and appeal and weary the authorities until they have permission, they are in possession and they have done it. Mr. Coogan: I have difficulty with Senator Norris's amendment on the basis that it refers to occupation. Somebody could build a gazebo or a large garden shed that they have no intention of occupying. Senator Henry's amendment might be tighter. I ask the Minister, on a point of information, regarding this section, if it is intended that this would be retrospective and, if so, does it extend past the normal six year limit whereby a local authority who takes no action against an unauthorised development now go back and revisit that? Is that the intention? An Leas-Chathaoirleach: I remind Members that we are discussing the amendments, not the section. Mr. Costello: I understand the intention of the amendment put down by Senator Norris and Senator Ross but Senator Henry's amendment is the effective one, in terms of compliant applicants. Either we have a two tier system or we do not. We should not allow a situation to arise as outlined in the explanatory memorandum in Part III, page 9 which states that section 32 is a central provision of the planning code and that if a person has carried out unauthorised development they must seek retention permission for it. This does not just turn a blind eye, it gives a nod and a wink to accepting, as part of the planning process, that someone can carry out an unauthorised development and then later, when they are ready and if they think fit, they may seek retention for it. There is no timescale for this. That attitude should be rooted out once and for all. The entire urban landscape of Dublin is blighted by these unauthorised buildings. It is becoming the norm that people proceed, without the slightest reference to the local authority or their neighbours, to build, develop or convert and then they may apply to the local authority. This is happening daily. Most of our discussions at the last meeting of the area committee involved a particular application for a takeaway service in Stoneybatter where there had been a restaurant operating in 1996. The very specific condition laid down by Dublin Corporation in giving planning permission for that restaurant was that there should be no takeaway because there were six takeaways adjacent to each other. This was for the good planning of the area and was a very important condition. Yet what happens is that the landlord passes it on to a new lessee and they open a takeaway. They are informed by the local authority before they start that they must not convert the premises in any way that would permit the takeaway. They proceed and are again informed by the local authority. They put in an application for planning permission. The local authority serves the enforcement order on the person on 9 November and on 11 November informs the councillors that the order has been served. That very day the lessee is sending out circulars, having received the order two days earlier, telling the local populace that he has a takeaway service operating. This totally flouts the powers of the local authority. It is ridiculous. There are many instances. A residential apartment development of 60 or 80 houses was built and somebody applied for a retail outlet there which was not referred to in the original application. They went through the procedure, were refused by an Bord Pleanála and put in a fresh application. In a particular case, a full page advertisement was published in one of the Sunday newspapers on a regular basis during the couple of years they were operating in an unauthorised fashion. If a combined residential and retail development is proposed, that should be stated in the application. There are compliant applicants who complete the process properly and those who put the cart before the horse and get away with it. No local authority has enough enforcement officers. They are swamped with the work they have to do in this area. There is only one way of solving it. Penalties are not the solution. The principle must be established that there is a planning application procedure which comes before a development, by which every citizen is bound. If any citizen does not adhere to the law that we establish, that development is regarded as null and void under the law and there should be no scope for a retention application. A great amount of time and money could be saved by the local authority if we were to take this option. Communities could also see proper planning within their area rather than seeing cowboys going about their business as though neither the councillors or the local authority planning section have authority to deal with the matter. I urge the Minister to accept Senator Henry's amendment. If we choose this option we will have struck a real blow for planning and for communities who are desperately trying to build in a coherent fashion. They should know what is happening in their community and that they do not have mavericks coming in and ruining it. Whatever about retrospection I strongly urge the Minister to provide that any applications for retention received after the Bill's publication should not be accepted and no unauthorised developments should be allowed to remain. Mr. Dempsey: I share the concerns of Members about retention and those who were at the consultation meeting in November 1997 heard me single this out as an area of particular concern. I will illustrate why the abolition of retention might not be as good as Senators think. A friend of mine who built a house attempted to sell it ten years later. During the sale, a sharp eyed solicitor or architect representing the purchaser noticed that the building was not constructed in accordance with the planning permission that was granted. The plans that the builder worked off were reversed and thus there was a mirror image of the house - the sitting room was on the right hand side as one entered the house whereas it should have been on the left, etc. Would it have been fair to ask that individual to knock down his house and rebuild it? Retention was built into the planning laws for cases where mistakes were made. I accept that it has been abused and I wish to move away from the abuse outlined by Senators Costello, Henry, Norris and Coogan. A number of measures in the Bill are designed to get rid of such abuse or, at least, limit it and, in particular, to make sure that retention permission cannot be used as a defence when the planning authority is involved in enforcement. Senators are familiar with such cases. An individual converts a premises, the local authority serves notice and just before the case is heard in court a planning application is made to the local authority. When the case is called in court the judge first asks whether a planning application has been made. The defence solicitor immediately replies that one was lodged and the judge says they will await the outcome of the planning application before the case is heard and, generally, it is granted. I agree there is a certain pressure on local authorities in such circumstances to grant permission and the applicant is seen to be getting away with it. The Bill provides for the removal of such a defence in court. If a local authority initiates enforcement action the fact that somebody subsequently applies for planning permission will not be allowed as a defence. I refer Senators to section 147 which provides that it is not a defence to an enforcement action to apply for or be granted retention permission after enforcement proceedings are initiated. It also specifically states that no enforcement action shall be stayed or withdrawn because retention permission has been sought. We are covering that escape route. Section 222, more particularly, provides that a fee for retention permission can be set at a significantly higher level than is currently the case. It will be an amount based on a percentage of the estimated cost of the development or the unauthorised part of it. Senator Henry strongly pointed out that unless those who ignore the planning laws are hurt, they will continue to flout them. However, this provision means that fees for retention will not be the standard fees which pertain to developments. Taking all these provisions together, and bearing in mind that there are genuine cases where people need to obtain retention relatively simply, the Bill achieves a proper balance in this regard and the amendments do not help. With regard to retrospection, the enforcement provisions of the Bill mean that local authorities must act in regard to complaints and cannot sit on their hands as perhaps they have been wont to do in the past. It will no longer be acceptable or feasible for unauthorised developments to exist for long periods without action being taken. That is referred to in the enforcement section and it applies to all unauthorised developments regardless of when it was carried out. It is the same provision as that contained in the 1963 Act. The time limit on enforcement does not impact on the provision. However, if an individual wishes to sell his or her house, and it is an unauthorised development, the provision remains the same. The fact that the period for enforcement may have expired does imply that the development has been authorised. I share the serious concerns of Members in regard to retention. It is necessary to maintain retention for genuine cases that will arise but several provisions in the Bill will make it an unattractive route to take in order to circumvent the planning laws. It is as far as I can go in this area and I ask Senators to withdraw their amendments on that basis. Dr. Henry: The Minister's friend's house was a hard luck story but in some parts of Ireland it is considered an aberration if one applies for planning permission. The Minister's provisions do not go far enough. One obtains planning permission before one builds or afterwards, as outlined in section 33. Provision is made for fines and so forth but, given the cost of houses, it would be worth one's while to pay £10,000. The planning fees for retention should be higher than if one had applied for planning permission in the first place, perhaps by 100 times. I do not think it is sufficiently forcefully put. If section 32 consisted of paragraph (a) only and somewhere else there was a Part which said that those who build houses without planning permission would have to have them razed to the ground, a person might start by taking down the chimneys, then the east gable and continue in this manner while the whole thing is being televised on a weekly basis. Will the Minister name five houses in this country which were built illegally and have been taken down? I think I can remember one, but I do not remember five. However, I can recall thousands which have remained. Our sense of duty towards property is astonishing. Once the building is up it will stay and it really will not matter if one has to pay an extra £10,000. They will say, "It was well worth while." Nowhere in the Bill can I see provision stating that a house will have to come down. I realise there are fines and extra money for planning permissions but, for Heaven sake, anyone will pay them and will not mind. They would even go to Castlerea for a month if they thought it was for the better of their health than pay a fine of £30,000. Housing is such an expensive part of life here that it will just be considered an add-on factor. Mr. Norris: I have a couple of things to say on this. The Minister has not really addressed my amendment. He looked at the other amendment which, I accept, is stronger but I am not sure that its strength is not its weakness to a certain extent. I had a little whispered discussion with my colleague, Senator Henry, in which I asked her if it is not a little inflexible. Then the Minister gave a reasonable instance of where flexibility might be required. I am a little entertained to hear from this side of the House that hard cases make bad law. That is what was chorused at us on every issue - contraception, abortion information, etc. We were told hard cases make bad law, that we were putting hard cases with all the vigour we possible could and we resisted the principle that you cannot take account of hard cases. We made the point that hard cases should be envisaged and that it was our responsibility, as legislators, to investigate them. I would like to make a little confession because my memory has been jogged somewhat. I knew there was something in the back of my mind. I applied for retention on one occasion for the Hirschfeld Centre; it was a change of usage or that building would not have had the remarkable impact it had on the social life of Dublin. It also launched the Temple Bar renewal, which is often forgotten. We converted the building, changed the usage and so on and applied for retention of the change of user. Conditions were laid down by the planning authorities with which we had to comply, and we did. I also have had experience of the neighbour from hell whose misdoings have been put on the record of the House on a number of occasions, and I have had immense battles in court with this woman who does not live in the place. She just collects 18 century buildings and allows them to fall down. She broke undertakings given to court, she broke planning permissions, she tried to conceal a structural crack in the back wall by building a skyscraper bog all the way up the wall and resisted when told to take it down. I had to drag her into court again to prevent this unscheduled building remaining but she was seeking retention. Senator Henry made a very effective point when she said paragraphs (a) and (b) appear to be given equal value. I have sympathy with what the Minister says about the difficult cases and so on, there may be some but if the Minister were to include something along the lines of the amendment I have suggested, it would at least deprive people who, even at the stage of initiation of a development, contemplate that the easiest route is to build the structure on the ground and then seek retention. There would be a penalty because they would not be allowed to occupy the building. That would signal that there is a difference between paragraphs (a) and (b) and it would be a valuable one but it does provide, however, for a situation where retention can be looked for but need not necessarily be granted. I also have to say, I suppose it is an old Protestant thing, I hate waste. Although I know that in certain instances it would be salutary to pull down a building, it would be a good example and so on but I am a little unhappy. I would much prefer if the building was not put up in the first place or, at least, that those who had it built were deprived of the enjoyment of it. That is a middle course I would urge the Minister to consider. Mr. Coogan: One of the reasons the debate on this issue has gone on so long is that we ourselves cannot find a solution to the problem. The intention of the amendment is to catch those who deliberately try to flaunt the law by these types of developments whereas, in fact, we want to exclude those who are caught by chance. I was laughing when the Minister was replying as my next door neighbour did exactly the same thing, to the detriment of his house, because he lost privacy and I lost some, but plans were reversed. There is no way that person should have to pay a substantial fine over an error. He is not a builder and knew nothing about development and assumed the house would be built in the proper way. There are other similar cases, involving small extensions, porches in houses out the country, which do not interfere with views or amenities. While sitting here I was trying to find out if there is any way we could catch the scoundrel as distinct from the person who is caught out and I could not come up with one. I hope the Minister and his officials have a better wording than I would have thought up. Mr. Costello: I am still of the opinion that Senator Henry's amendment is the best one we could use in this case. Why should we, in legislation, refer to acceptance of an unauthorised development? Why should legislators say: "We accept unauthorised development" and go on to make provision for that unauthorised development to go through the procedure? If the offence has taken place, it is an offence. I do not like to see ten pages of Part VIII devoted to enforcement. That section of the Bill would not be needed if Senator Henry's amendment was accepted because it would be illegal - it is against the law - to develop or convert a premises without prior planning permission. It is an unauthorised development and it is not allowed by law. If we are enshrining in law that it will be allowed by law, there is something very serious about that to which I do not like to be a party. We are practitioners in the local authority and day in and day out we are dealing with planning applications which are circulated to all the local authority members. While we do not make the final decisions we make recommendations on them. The bane of our life in my local authority is retentions, unauthorised develpment which takes place against the wishes of the collective community by mavericks and cowboys operating in the area. A person may find when he seeks to sell his home that he requires planning permission for an extension built 20 years previously, at a time when it was not widely known that permission was required for extensions to family homes. That is a different matter. Retrospective legislation is undesirable. We should be concerned with the regime that will begin from the enactment of this legislation. We should make it clear that we will not tolerate cowboys in the planning system. They are ruining communities all over this city. There is no way to deal with them, not even with repeat offenders. If another ten pages of procedures are to be laid down for local authorities to follow to enforce the legislation we will be back to square one. We should not allow matters to deteriorate. It is necessary to consider the common good and the collective aspects to development rather than providing a major loophole for some individuals. This legislation will make provision for a person who knows, or should know, the law - ignorance of the law is no excuse - to get away with flouting it. The Minister refers to a fine of £10,000. However, the penalty on summary offence is £500, which is not a great amount. There is also provision for somebody who may not be in a position to pay, however that may arise. Given the gravity of the damage done to the communities referred to, I am dissatisfied with the penalties outlined - what is sauce for the goose should be sauce for the gander. All applicants should be compliant before the law. Mr. Walsh: While those of us involved with the planning process recognise that there is a difficulty with compliance, account must be taken of the fact that there are degrees of infringement of the regulations. There are many instances where, inadvertently, the architect, builder or somebody other than the owner of the house can be at fault. We live in a democracy, not an autocracy and legislation must take account of genuine instances when people must seek permission for retention for such developments. Common sense must prevail. However, I am sympathetic to the views expressed on those who blatantly flout the regulations and ignore the planning laws. In many instances one could name those involved in local authority areas. Perhaps local authorities should be given a discretion to apply a special levy on retentions. This could act as a deterrent and also an encouragement to people to apply for planning permission in the first instance. The legislation should not be penal for minor breaches that must be subsequently regulated, often when the property is being sold because an architect finds an aspect of the planning laws which has not been complied with. Provision must be made for those genuine situations. I have no regard for and do not support those who do untold harm to the environmental and architectural enhancement of an area by breaching laws and who then rely on sympathy to legitimise their activities. While the courts have a role to play in this, perhaps there could be an earlier step involving the local authority using its discretion to apply a special retention levy. If this were possible it would be worth considering. Dr. Henry: Senator Coogan referred to what I believe to be a problem here. I am concerned with the deliberate building of houses, shops, etc., and not with those who have had their plans reversed. Senator Norris does not like waste, but would he like to see the building of houses in the absence of planning permission on Howth Head or the Liffey alley or alternative accommodation to the Georgian houses at the upper end of North Great George's Street? Of course minor problems will arise in areas. An example is the case referred to by Senator Norris, where the problem arose when the house was put up for sale. My main complaint concerns those who do not bother to obtain permission for the construction of new houses, developments and big extensions. In this regard the two aspects of the Bill appear to be given equal weight. On the one hand there is the requirement to get permission before construction while on the other hand, provision is made for the procuring of permission afterwards. Mrs. Taylor-Quinn: This is a very difficult issue. I addressed it on Second Stage because of the high number of applications for retentions to local authorities throughout the country - my local authority in County Clare has a high number of them. While the variation of the offence has been debated in detail, the degree of variation must be emphasised. For example, an innocent person may leave matters to an architect, draughtsman or contractors and then learn that the work done had contravened planning permission or was not in accordance with an application for retention. However, large developers may apply for planning permission for something that attracts keen local interest and it may be carefully monitored by local people, especially community groups and, given this, the local authority will also monitor the application closely. It will lay down firm conditions to allay public concern. Subsequently the developer, by acting contrary to the terms laid down, may dramatically contravene the planning permission and may have to apply for a retention. Such instances do not happen by chance. They occur because of deliberate action taken by the people concerned. This is what Senator Henry is concerned with. The Minister has introduced penalties to address this problem, which I welcome. It is a major step forward. However, a more definitive approach is required because people are deliberately taking action and then applying for the necessary cover. However, given the extraordinarily high proportion of retention applications across the country, that is not good enough. The Bill attempts to address this aspect. While I support Senator Henry's view, I am sympathetic to the innocent person who is caught and whose application for retention is so minor a matter as not to make a great difference. It may only mean having the building in order for resale. We need to re-examine this issue. I do not know how the Minister or his officials will get around it but it is an area in which people want to see change. Mr. Dempsey: I am of one mind with Members on this point. Most Members and people outside this House would accept that we need to retain retention laws in the planning code for the reasons I outlined - for instance, people putting windows in wrong places, etc. I cannot accept Senator Henry's amendment which would delete all reference to retention in the Bill. I can accept her point about how the provision appears in the Bill. It appears as though both options are equal but that is not the case. If I remove section 32(1)(b) it would mean we could enforce the law, fine people, etc., but a person could not apply for planning permission to retain a building. Mr. Costello: Once the Bill is passed. Mr. Dempsey: Yes. A person who makes minor mistakes - building can be very complicated and builders do not always interpret plans properly - would have no means of obtaining planning permission for the retention of a dwelling. I do not think that is the Senator's intention nor would it be mine. Section 32(1)(b) provides that a person "....shall be required...." to seek planning permission for the retention of the unauthorised development. It does not say "shall be granted.....". They must apply for the planning permission and the local authority will then make a decision on it. I cannot remove that provision from the Bill. Senator Norris indicated that I did not reply to his earlier amendment. Senator Coogan, if I might be so bold, had already dealt with that point in that one could erect a building such as a gazebo, a large shed or, perhaps, a piggery which would not be occupied by people. Senator Taylor-Quinn raised the point about people who continually flout the law in this area. They are the people we are trying to deal with. We have increased the penalties for unauthorised developments to £10 million. Section 139 deals with the point raised by Senator Henry. A court may direct under section 145 that a building be demolished. We are trying to cater for two situations, one, people who make minor mistakes and, two, those who flout the law. Section 147 deals with claiming retention of a building as a defence. In line with what Members have requested, we have provided in section 222(2) for the introduction of a levy on unauthorised development. That effectively means that the Minister can make regulations and guidelines which allow the local authority to impose a fee for retention of unauthorised development which can be based on the value of the entire building or the unauthorised part of it. That levy will be imposed on anyone who erects an unauthorised structure. The points raised by Senators are catered for in the Bill. Senator Henry's amendment introduces a matter of principle which we could discuss all night. It is necessary that we keep the retention provision. Many of the points raised by Senators are dealt with by the enforcement sections and the penalties I mentioned. Senator Costello said that local authorities are not enforcing planning laws. Local authorities have been empowered under various sections, such as section 222, to do that job well. I do not agree or disagree with Senator Costello's point, he has the information on the ground. The fact that they are not enforcing planning laws is no excuse for introducing draconian legislation. They have duties and obligations under existing legislation and this Bill to enforce planning laws. I have given local authorities almost carte blanche to employ people to meet the planning needs. The introduction of these provisions will tighten planning laws but when it comes to retention, we cannot throw out the baby with the bath water. Mr. Norris: Being such a pro-family person, I would not suggest that we throw out the baby with the bath water. I would suggest retention of at least some of the bath water or the baby. I do not wish to be tedious about this issue. I invite the Minister to consider the debate here this afternoon and see if he can come back with a more suitable wording. He has shown considerable concern in this area and has a track record of expressing concern on retention. We have had a very useful debate today. I sympathise with some of the positions adopted by the Minister. I do not think we should be too inflexible as that would lead to injustice. We need to address the problem whereby people with ill-will and malign forethought decide to opt for retention. I suggested the introduction of a penalty which, it has been suggested to the House, would lead to the slightly grotesque situation of the island being flooded with gazebos and follies. That opens up a rather enchanting vista; it is very 18th century. However,I doubt that would happen. I do not see any economic function for such buildings. In an effort to get round that I will suggest a form of wording which the Minister and his advisers might like to consider. They could say, in the case of unauthorised development that those pursuing such development "shall not derive benefit from any such development unless and until permission is retrospectively granted by the relevant authority...". That covers commercial usage, dwellings and the follies because one could say they were deriving an aesthetic or malicious benefit if, as in the case of Lord Charlemont's enemy who built a wall so that he could not see the sea from the casino at Marino, it could be construed as a benefit to the malicious person who did it. I would agree with something along those lines. The Minister might find himself in sympathy. There should be the possibility of penalising a person who maliciously engages in this retention philosophy. The best way to penalise him would be to let him proceed with the development but, under law, he would not be able to derive any benefit unless and until he obtained proper planning permission. In the case of the Minister's friend, that might mean the person could not use the drawingroom or something along those lines but, at the same time, there is the germ of a possibility which, perhaps, his advisers might explore further. Dr. Henry: Will the Minister give further consideration to this because I think he understands my concerns. Naybe if paragraph (b) had been in very small type and in brackets I would not have been so worried but paragraphs (a) and (b) stand out as bold as brass and it appears that planning permission could be obtained before or after. In my view, this gives an extraordinarily bad impression of the way we look at things. |
Mr. Costello: The Minister referred to
my remarks in respect of local authorities and stated I suggested that they were not
enforcing the law. That was not the gist of my remarks. I said that the local authorities
are finding it very difficult to enforce the law as there is insufficient personnel in the
enforcement section because this has got out of hand. It is a very tedious business to
chase somebody who is intent on breaking the law and abusing the measures to go ahead with
their unauthorised development. Many of them are done secretly and do not come to the
attention of the local authority unless somebody finds out about them and asks a question
and the public then contacts a councillor or the local authority to ask if planning
permission had been granted. More times than not planning permission has not been
obtained. This is a murky area and I fear we will not clear it by the manner in which we are stating here - on the one hand, that planning permission will be obtained and, on the other, if one does not bother applying for it one should go ahead with the development, and then there are procedures. Enforcement procedures are already in place but they have not been effective. The Minister says his measures will be effective but look at the amount of time, energy and money which will be spent trying to enforce something when we do not have a clear picture of what is happening in the first instance. I am not saying that there are not hard cases, of course there are, but they are in the past. As regards planning permission, this has to be reasonably substantial. We are not talking about a one-storey extension to a premises that does not require planning permission but about a two-storey extension, a substantial development whereby planning permission is required in the first instance. It is not required for every small alteration. The problem is that we are putting the cart before the horse. We are leaving it on the nod and a wink. It is there in black and white in the legislation that if one has an unauthorised development there are ways of getting around the law. That is an incentive for those to continue with this activity. Unless the Minister can spell out clearly the two categories and cover them adequately in the legislation, no progress will be made. The same can be said about the presentation of section 32, and Part VIII gives a long bureaucratic list of procedures that must be followed by the local authority if they are to deal with the unauthorised development. I am convinced that the line must be drawn and it must be made clear that new applications - this excludes those for retention which are in the pipeline as they should go through the procedure - will not be tolerated for retention from the time the Bill is passed. If this gets the publicity that it warrants it would hugely transform the manner in which development is taking place. Mr. Coogan: I wish to refer to some of the points raised by the previous speaker. If a developer has carried out an unauthorised development in the past under this Bill and if he makes a further application, he will find he is curtailed, if he is allowed to build at all. From that point of view there are additional penalties that have not yet been mentioned. I am willing to wait until we reach sections 145, 147 and 202 on penalties before I say any more about the issue. Mr. Dempsey: I have made the point that this section and the related sections strengthen the provisions on retention, unauthorised developments and so on. I cannot add anything further to what has been said. I am glad that I misinterpreted what Senator Costello said on the enforcement issue, that it is the difficulty of enforcement rather than a lack of enforcement. My position remains the same on this but I will look how this is worded in the Bill. However, I must be honest and say I cannot see a position where I will change the wording but I may be able to change the placement of it in the Bill that will make it more acceptable. Mr. Norris: I take it that means the Minister will not consider the helpful suggestion I made in respect of the abolition of benefits or will he consider it? Mr. Dempsey: I will have a look at it. Mr. Norris: I thank the Minister. Amendment, by leave, withdrawn. Amendment No. 124 not moved. Section 32 agreed to. SECTION 33. Acting Chairman (Mr. Finneran): Amendment No. 124a is in the name of Senator Coogan. Amendments Nos. 132 and 133 are related and all will be taken together, by agreement. Mr. Coogan: I move amendment No. 124a:
I previously addressed this issue on Second Stage. It is completely wrong that anybody should be asked to pay a fee, to make any submission or observation. It is a little like somebody who is witnessing a crime ringing the Garda. They thank him and suggest that the next time he witnesses a crime being committed he should write to them and send £20 before any action will be taken. Many people cannot afford £20 - I understand that is the approximate sum - and there is nothing to prevent it increasing to £100, thus excluding people from making submissions or observations. I am against this section in respect of the payment to make an observation or contribution. The reason is obvious. Mr. Norris: I am confused because Senator Coogan is addressing the question of fees. This amendment is linked with two other later amendments. My understanding was that my amendment, amendment No. 126, should be discussed with that, if that is what we are discussing. Mr. Dempsey: We are on the amendments to do with site notices. Mr. Norris: Yes, that is what I thought. It is amendment No. 124a. Acting Chairman: We are on sections 33, amendment No. 124a in the name of Senator Coogan. This is the list which has been in everybody's pigeonhole since this morning, the most up to date list.
Mr. Coogan: You can understand the confusion with the variety of amendments. I know of a number of cases where people have passed by development sites but they did not know they were sites, they thought they were just green fields. The site notices were deliberately erected in order that they could not be seen - they were stuck behind a hedge or tree or so far back that they were illegible. Often the size of the typeface renders the notices illegible. I suggest that we formulate a system whereby a person would know whether this was the original application, a modified application or a subsidiary application or whether the applicant was asked to make changes and had done so. Such a coding system would allow a person to see the stage the development had reached. The typeface should be of a size which anybody with reasonably good sight would be able to read. The site notice should be placed in a position where one could guarantee it would be seen. If the site, it is inappropriate that there should be only one sign - there should be a number of site notices, depending on the size of area to which the application applies. Mr. Norris: I am a little confused. I would have thought my amendment would have come first because it was submitted first and it occurs before the amendment - it refers to line 12. Acting Chairman: To which amendment do you refer? Mr. Norris: I am talking about amendments Nos. 132 and 133. Acting Chairman: Amendments Nos. 132 and 133 are being taken with amendment No. 124a. You may speak to amendments Nos. 124a, 132 and 133. Mr. Norris: Senator Coogan's arguments are valid. My amendment No. 132, seeks to provide for "the erection and display of any specified notices which shall be legible from any place accessible to the public on or nearest the site boundary of this application", simply means that the public should be able to see them. There always has been a tendency to publish notices for planning permission in Irish on the back page of the Evening Herald. People who never used a word of Irish would apply as Gaeilge for planning permission. Then the site notice would be put in the top window of a five storey house. If this is intended to facilitate a public consultation process, for the public will be made aware of the application and to register any disagreement they may have with it, the notice must be clearly visible. We try to cover this requirement by the obligation to publish it in a newspaper, but I think the same clarity should be necessary for site notices. The issue of colour coding and dating, which is addressed in my amendment No. 133, has been discussed by Senator Coogan. He has made a cogent argument for the inclusion of this material. I hope the Minister will accept, at least in principle, the virtues of this collection of amendments. Mr. Costello: These amendments are necessary to clarify to the public the nature of an application. In any part of Dublin one will see small site notices erected at a distance from public view. By and large they are not legible from the footpath, are not immediately adjacent to passers-by, they are not dated and there is no indication whether it is a first or second application. Therefore, the public does not know what is going on. These notices are not consumer-friendly. Site notices should be legible. They should be erected so that one can read them. One should not have to enter a garden and approach a window to see them. In fact, in many cases one would have to trespass on private property to read notices. The Minister's intention is that this Bill will make the process more accessible and democratic and in the interests of informing the public these amendments would be beneficial in that they would ensure that the local community and passers-by are informed about the intended development of a building. It would be desireable if one could also have a photo montage of the structure and the finished building or development so that people would be able to visualise it. It is hard to determine what may be involved from a written notice alone. This would be particularly useful in the case of substantial developments. One would be able to see the height of the development in relation to the existing buildings and one would be able to see the impact it would have on the landscape. Dr. Henry: I support Senator Coogan's amendment. I live in an area where alternate planning permission applications are made - people follow an application for a hotel with another for a hotel and then for an office block on the same site. Following a refusal of planning permission for a house, they apply for planning permission for another house. It is quite incredible. These amendments would at least give one an indication of a sequence so that one would know that one was still looking at an application for the same house or that it was a different application. In addition, people should not be allowed put up notices of planning permission on trees. There is one on Burlington Road at present. This is not a good idea because they are usually placed at quite a height. There is one which I have been looking at for some time which has something to do with an apartment. Mr. Norris: Is the Senator sure it is not for a nest? Dr. Henry: I do not think that it should be considered to have been erected properly if it is stuck up on a branch of a tree. Mr. D. Kiely: Unless there are discrepancies between counties the notices are standard. They are issued by the planning authority and the rules indicate clearly that they must be legible from the road. If the planning officer who inspects the site cannot read the notice, he automatically refuses the planning application. That is how it works in my county and, from my experience, that is how it works in other counties. Senator Norris referred to applications published in Irish. From my 20 years experience as a member of a local authority, the one way to make sure that the whole world knows one is applying to build a house is to publish it in Irish in any newspaper. Mr. Norris: Not the whole world, the kingdom. Dr. M. Hayes: I fully support the intent expressed by Senators, to ensure that notices are clear, legible and accessible. There have been abuses and I am aware of abuses in this respect. However, I wonder whether we are not over elaborating by trying to put this in the text of the Bill and whether these things are not better specified by regulation, as the Minister proposes to give himself the power to do. When enacted, the Bill might state that the notices should be accessible from the public road, clearly legible and maintained for the full period in which the planning application is under consideration so that they are not blown away in the wind after day one. Inserting in the Bill such matters as the actual format and colour coding might make it difficult to adopt modern methods of reproduction. For example, it will soon be possible for people to produce a montage, as Senator Costello mentioned. It would be better if the Minister were to accept the intent and allow details to be specified in regulations. Mr. Quinn: Senator Hayes has taken the words out of my mouth. The intent is certainly correct and I understand Senator Coogan's point. If, however, we try to put every detail into the Bill, and if at some future date things change - as Senator Hayes said, it could well be through technology or some other detail - and something is left out, will we have to wait until a new Bill is introduced before we can change it? While I think Senator Coogan's intent is correct, section 33(1) states:
On that basis it seems to me that the words in section 33(2)(b), "requiring any applicants to publish any specified notices with respect to their applications", give freedom to the Minister, or to a future Minister, to adjust to changes that take place. I understand the intent but as long as we give the Minister the power to change the regulations, as we are apparently doing here, it is quite likely that is a stronger way of ensuring compliance with the intention, rather than trying to write it into the Bill, thus making it difficult to change without introducing legislation to do so. That usually takes a much longer time than it does to create a new ministerial order. Mr. Burke: I agree with Senator Coogan concerning the size of the site notice. Both the notices and their lettering should be of certain dimensions. However, I cannot agree with Senator Hayes's point that the notice should be on the site from the moment the application is lodged until it is decided upon. Occasionally, someone in a housing estate will apply for planning permission to alter their house, but the sign can be knocked down by vandals. In such circumstances, what is the contractor supposed to do? Does he have to visit the site every day? If the sign is no longer there, does he have to erect it again? The usual delay in seeking planning permission is two months, but in some cases the county council may seek further information which may add a further two months to the process. At the end of that period additional time may be sought. In many cases it can take 12 months to decide on a planning application. Does the applicant or the contractor have to visit the site every day to make sure the notice is on display for 12 months? I am worried about that aspect, but I support Senator Coogan's amendment in relation to site notices and the size of lettering employed. Mr. Dempsey: Some Members of the House have actually made the case so there is no need for me to repeat it. Details of regulations are not generally spelled out in legislation. I accept the principle behind the amendment, which is to make sure that site notices are legible. Mr. Norris: And visible.
Mr. Dempsey: The current regulations stipulate they are supposed to be legible from the edge of the public road. I accept the principle of what we are discussing, but it would be totally unsuitable to include the type of things we are talking about in the text of the Bill because of changing times and circumstances, as Senator Hayes has already said. If one wanted to change the stipulations in relation to site notices, one would have to change the law to do so. Therefore, I would ask Members to recognise that I accept the principle involved and will bear in mind what they have said about regulations. Some Senators are members of the Joint Committee on the Environment and Local Government and perhaps further recommendations could be discussed in that forum before I make the regulations. There is a need for clarification. In some cases notices have been erected on a site and planning permission has been refused. However, while the matter is being appealed to An Bord Pleanála, surreptitiously, during the night, another notice of planning application is erected on the same site. By the time the appeal has been heard, the local authority has already granted planning permission on the second notice. That explains the need for the colour coding system that Senator Coogan mentioned. Mr. Norris: Yes, exactly. Mr. Dempsey: I am definitely in favour of anything along those lines to make site notices clearer. I would ask Senators to withdraw their amendments, however, because of the difficulties over inserting this into legislation rather than in regulations. Mr. Norris: In light of the Minister's undertaking, I am happy to withdraw my amendment. I feel the need to assist my colleague, Senator Henry, with her difficulties concerning the notice up a tree in Burlington Road. I am aware of this situation. It is an application for nests. As everybody knows, the Burlington Road birds are notoriously compliant. Mr. Coogan: In view of what the Minister has said and in view of the fact that I have recently been nominated to the very committee he said would be the appropriate place in which to raise the matter, I will withdraw the amendment. The other day, I took a few photographs of a planning application notice from a distance with a telescopic lens. When I had the pictures developed I still could not read what was on the notice. I am not saying it was that far back from the road, but it was unclear. That is why I feel so strongly about the issue. Mr. Burke: The Senator should have brought a pair of wellington boots with him. Mr. Coogan: If the Minister will consider recommendations reported to the committee, I will accept that and will withdraw the amendment. Amendment, by leave, withdrawn. An Leas-Chathaoirleach: Amendments Nos. 125, 126, 137 and 128 are related and may be discussed together. Mr. Coogan: I move amendment No. 125:
I feel that I have already spoken to this amendment, but perhaps that is due to confusion or the lists of amendment groupings. Mr. Dempsey: Indeed. Mr. Coogan: The thinking behind this amendment is simple. If some people wish to make a submission or an objection to a particular application, they find it difficult to do so because they cannot afford the fee. They may be in a minority but they do exist. The alternative method is that an elected member of a local authority, who in making a submission has never had to pay a fee before this, could now be exempted from doing so. If councillors decided by a simple majority to make a submission concerning a ward or other electoral area - whether on their own behalf or on behalf of a group - they should not have to pay such fees. In that way they can reflect the public view without that additional cost. Mr. Norris: I support what Senator Coogan has said about fees. I have been lobbied strongly on this issue by members of the public and also by some statutory and prescribed organisations. It has been indicated to me that this is one of the two most important amendments I have been asked to table. The amount of revenue generated by such fees is so marginal as to be insignificant and, therefore, there is no great benefit to local authorities or central Government from charging them. It is not as if we are going to have a general reduction in taxation income as a result of this. It will not have any great impact on Exchequer funds or local authority funds, but it could well have an impact in inhibiting individuals or groups from making objections. For those reasons there is a strong case to give every citizen the right to make this kind of objection and not to require the payment of a fee. This is something citizens should be entitled to, not something they become entitled to when they have the spare cash. One knows the celebrated phrase that everybody has the right to their day in court, just as everyone has the right to have afternoon tea at the Ritz. It is easy for us because we are people who have some degree of affluence. We may qualify the degree of affluence in which we live but there is no doubt that everyone here has reasonable circumstances. A fee might appear small to us but it might be a major consideration to an elderly person, a widow or widower. I have come across many situations in which an elderly person is a bit confused and feels they are taking on Goliath in lodging an objection. If they are forced to pay a fee as well then it could stop them altogether. This provision will not stop vexatious objections. Vexatious people tend to have the bit between their teeth and a fee will not deter them. They can only be deterred by proper education and ventilation of the subject. If the planning process is working properly then the vexatious element will be reduced. There is a strong case to remove fees. Mr. D. Kiely: Under the Freedom of Information Act any citizen is entitled to scrutinise a file and examine it upside down or inside out. It would be appropriate for them to pay a fee if they felt strongly enough to lodge an objection. We should look at statistics to see how many people lodged objections against planning permissions at local level because it was free. Then we should check to see how many of those people made a further objection to An Bord Pleanála. With regard to Senator Coogan's point, I can see a little merit in what he said about local authority members. At the same time we are on special committees. I attended a committee meeting that lasted all day yesterday. The planning applications come before a committee every two months. At these meetings all the controversial applications are discussed. People can make observations at the full public meeting. The planning authorities and the council staff will take account of any observations. That is the way the new structures are set up. If the Senator feels local authority members should meet groups of people who want to lodge objections, then we would be lobbied all the time. Local authority members would be lodging objections on behalf of the people objecting. This would be only a deterrent to the planning application. This measure would be a retrograde step. The charging of a fee would be the correct way to progress the planning applications that are now being held up. Mr. Costello: This is a seminal area of the Bill that we need to address because it has to do with the rights of citizens who will be affected by the development to make submissions or observations on it. Their rights should not be curtailed in any way. They should be encouraged and enhanced. If anything, the Minister is compounding the situation with his new amendment by saying that the fee must be paid within a prescribed period. Clearly he is battening down the hatches on this one by saying there will be a fee which will be payable within a prescribed time. That is the wrong way to go about it. He should be encouraging residents associations and neighbours to make submissions in relation to any development which will alter their streetscape, landscape or the enjoyment of their premises. Their perceptions may be good or bad but they should be encouraged. They should not be constrained in any way in making submissions. Residents associations, An Taisce, etc. have contacted all of us in relation to this provision. These bodies view it as a direct infringement on their freedom to look at a new development. It is a bit like the retention side of it. Again, it seems that the balance of the system is against the community by providing for a broad procedure for retention. In this case it seems that the burden is being placed once again on the community to assert their rights. Senator Kiely made the point that many objections made in the first instance are not followed up. When the planning application is lodged with the local authority, it may be satisfactory and there may not be any need to lodge an observation or objection. But when the final planning permission is given by the local authority it may grate against the wishes and enjoyment of a local community. They may then wish to contact An Bord Pleanála. That is a slightly different scenario but it is related to it. It is important that no application going to the local authority should be conditioned in such a way tas to make it difficult or deter people from lodging a submission or an objection. The number of malicious applications submitted is not so much on the side of the citizens but the cowboys on the other side. The Minister should go out of his way to enhance the rights of the people who would be directly affected. Whatever about the generality of citizens or pressure groups, all neighbours and residents associations directly affected should not have any constraints placed on their observations about a development. Mr. Quinn: As with many other provisions, my attention has been drawn to this amendment. We are in serious danger of inhibiting the growth and development of this nation unless we look at this Bill in a manner which will help us achieve the infrastructural change that will be required in the years ahead. Last week we had problems with the telephone system. It would come as quite a surprise to us if something went wrong with our water or electricity, which almost created a problem for us recently. We also know the difficulty we have with roads. Spain and Portugal had undeveloped infrastructure 30 years ago. Recently when I visited both countries I was impressed by the amount of infrastructural change that had taken place. As we said on Second Stage, we support the general tone of this Bill. With this Bill the Minister is attempting to make this country capable of adjusting to the changes that will be required in the years ahead. Frivolous objections have been one of the difficulties we have had, particularly in the development of water, roads, electricity and communications; in other words, many small objectors objecting without the good of the State, the nation or its citizens at heart. I have no problem with a residents association making an objection, delaying the process and having their views heard. I do not believe the payment of a fee will inhibit a residents association from making an objection. However, if hundreds of individuals - people who may not live in the area and are not affected by it - decide to object for some weird idea and delay it on those grounds because each objection has to be considered then these are frivolous or vexatious objections. The Minister must consider a way to protect us from undeserved delays in trying to create the infrastructure we will require in the years ahead. The Minister has taken a step in that direction by including the payment of a fee. There may be a way to avoid frivolous and vexatious objections and yet ensure full attention is given to sensible and logical ones. We can do this by having what is currently a comparatively small fee, although there is a danger that this could be increased. I am not quite sure how to handle that in this case. It seems likely that, unless there is a measure to inhibit vexatious and frivolous objections, in our efforts to be democratic we may create delays which will prevent us from achieving what we hope to and must achieve as a nation in the years ahead. The debate on these amendments is useful. However, the total removal of a fee would not achieve what was suggested by Senators on Second Stage. I would like to hear of an alternative to the removal of the fee because we may end up with the worst of both worlds. Dr. Henry: As other Senators said, there have been many submissions from various groups on the payment of this fee. I received a letter from John O'Sullivan, the planning officer of An Taisce, the National Trust for Ireland, which has done a considerable amount of good work in the past 30 or 40 years in this area. He writes
This is very important. Locals may not inform those who are making the decisions of facts they may not be in a position to know. He goes on to write
I did not know that and I do not know the details, although I am sure officials in the Minister's Department do. If it did not make a positive contribution in 1984, there must be a good reason why it is reckoned that now, 15 years later, it will. Mr. Burke: I agree there are hardship cases where people would be unable to pay the fee to An Bord Pleanála. Senator Coogan put his finger on it when he said that if the majority of elected members of an electoral area or ward agree to appeal a decision made by a county manager it will allay the fears of those involved. There should be charges for appeals in many cases. However, there are hardship cases. As everyone knows, good and bad planning decisions are made. If a majority of the elected public representatives of a local authority wish to appeal a decision made by a county manager, they should be able to do it free of charge. There should not be a charge on elected members to appeal on behalf of a community group or an individual who is unfortunate enough to be unable to afford the current fee. I agree with Senator Coogan's proposal that elected members should have the right to appeal, free of charge. Dr. M. Hayes: I am slightly confused as I thought this section dealt with applications rather than appeals. It is one thing to put up barriers against appeals but quite another to put them up against observations. It is a little odd that if I want to write a letter to a planning authority, I should have to pay for it. I cannot find any clear reference in the definition paragraph to the difference between an observation and a submission. Like Senator Costello, I think people should be encouraged as far as possible to participate in the planning process - we want them to take ownership of it. One of my concerns on Second Stage was that the Bill was somewhat technocratic. The suggestion here is that people are a bit of a nuisance and we should not be bothered with the planning process at all. This is an unfortunate impression to give. I accept the point that when one moves towards the appeals process, one does not want development stultified by a series of frivolous objections. This may possibly be dealt with by insisting people have a certain locus and a specific interest, which could be shown either as a neighbour, a local authority member or a group, rather than charging a fee. Those who want to make frivolous objections will find the money to pay the fee. Mr. Coogan: Senator Quinn's argument is slightly tautological. If we reduce the fee to a minor sum, it will not prevent those making minor submissions without substantiation. Those who wish will appeal anyway. I am talking about people who are left out, particularly local authority members who should have the right to make an appeal without paying this fee because it is part of their role. I feel strongly about this aspect. The Minister wants to streamline the system and cut down on the number of appeals made without foundation. However, I do not know if this is the manner in which to do it. As has been said, everyone has a right to be involved in the democratic process. Planning is part of that process and a fee which can be increased by a simple order - no sum is mentioned here - prohibits people who cannot afford it from participating. I will return to this later when we discuss appeals to An Bord Pleanála. I would like to hear the Minister's response. Mrs. Taylor-Quinn: This is an important issue because it involves the right of the individual to be part of the democratic process of local authorities via the planning process. Nevertheless, many applications for planning permission have been delayed unduly because of the level of observations, submissions and objections. Senator Quinn's suggestions deserve some consideration, especially as regards the continuation of progress without undue delay. Every member of a local authority is aware of the vexatious and frivolous objections and observations which are made. There is a need to consider the people directly involved. The Bill involves the principle of sustainable development and such development is important, particularly in areas that are isolated and suffer from lack of economic development. Some applications made for developments in such areas are vital in terms of economic growth and it is important that the views of neighbours, public representatives and groups with a specific involvement are taken into account. At present, people from outside can object to developments in places they have never even visited. They have no familiarity with an area but they can operate under a particular banner and delay progress. Something needs to be done to curtail that type of objection. There are many examples throughout the country. Mr. Norris: No. Mrs. Taylor-Quinn: If the Senator was from the part of the country I represent, he might understand what I am talking about. It involves the issues of balance, natural justice and fair play. There are instances where people, who are economically viable in their own right and very well heeled, have delayed economic development and improvements in the lives of others because of the objections they lodged. There is a need to create a balance in relation to who is allowed to object and how the objections are dealt with, etc. I do not think a fee will make much difference in that regard, but I am concerned that locals, particularly neighbours, may not be in a financial position to object to developments which would be completely out of line with existing structures. The Minister must take this aspect into account because larger groups, under whatever banner they use, have sufficient means to lodge objections. There is no fear in that regard because they will be able to lodge objections in any event. |