Amendment No. 146 is important. Although it may appear a small issue, I have direct personal experience of this type of situation. I won a series of legal cases against the woman who is the owner and controller of a property next to mine which is a list one building. However, because different applications have been made and there are different judgments, ultimately she seems to have got away without any proper architectural supervision. She built a skyscraper lavatory up the back of the wall of the building. I forced its demolition but there is a residue of plaster and timber work and they intend to render half the wall. This will look absolutely bizarre on a list one building. They will get away with it because there is nothing to deal with it in the legislation.

It may be a small point and not as significant as the one dealing with housing estates. Senators McDonagh and Coogan emphasised the point I was trying to make that some of these amendments try to get to the heart of absconding developers who do not satisfactorily complete developments. I have no amour propre about the specific wording of the amendments. However, I believe that such a serious social and planning problem, a problem for the county councils, should be specifically addressed in the Bill.

Mr. Dempsey: I will consider amendments Nos. 141, 146 and 150 for Report Stage. On Senator Coogan's amendment No. 143, I am not sure of his intention in relation to staged financial deposits, nor is the benefit of staged planning permission clear. Existing planning law allows for the sequencing of development. Is the Senator proposing to grant planning permission for parts of a housing estate?

Mr. Coogan: No. I am talking about where a developer makes an application for, say, 300 houses, he could get the planning permission for the 300 houses but in order to carry out works on them, there should be a staged agreement so that when the work on one section is completed, he would have paid the deposit to cover the work to be undertaken for the next stage. I am referring to general works such as footpaths, roads and so on. The developer would put down a deposit at each stage to ensure that if at any stage the company collapses or if he disappears, finance is put aside so the local authority can carry out the works. I am just proposing this as one option. Perhaps a better system can be achieved.

Mr. Dempsey: The existing planning laws allow for this - an overall development may be granted full planning permission but the local authority will decide it must be carried out in phases. Bonds are entered into for the various stages. Local authorities can and have done this.

Mr. Coogan: It is covered by bonds. However, I am talking about financial contributions being made.

Mr. Dempsey: I have a difficulty with this proposal even though builders are making substantial profits at present. If they must lodge a sufficiently large amount of cash to act as a bond, a cash bond instead of the present bond system, to cover everything that might go wrong in a phased development of 50 or 100 houses of a phase of 300 houses, it might be very difficult from a construction company point of view. I will look at the wording as it stands to see if I can come up with some wording which would clarify this issue. I believe cash deposits would cause great difficulty.

Mr. Coogan: I am sure the Minister is aware that in spite of the bonds in place at present, developers still disappear and leave estates incomplete. I am trying to ensure that if developers leave, local authorities will have sufficient moneys to complete the development without dipping into their own funds. People who live in these estates blame the local authority because they believe it is responsible for carrying out the work. The local authority will be blamed for the potholes and if the refuse is not collected. I am trying to ensure that the local authorities receive the money to carry out this work. This is just a proposal. I accept the Minister may come up with a better form of wording.

Mr. Dempsey: We could get bogged down in this. Section 164 deals with taking in charge of estates and section 147 deals with the past record of builders. These sections include strong deterrents in relation to this type of activity. There will always be difficulties in building sites but it is my experience that the bonding system has worked fairly well since being introduced by local authorities. I accept that we are suffering from the legacy of 20 year old estates. This is the case in all constituencies. However, this happened at a time when local authorities received very low bonds or low cash deposits - they are more realistic at present. Nevertheless, there is a problem but it is more effectively addressed in sections 147 and 164.

In relation to the proposals suggested, amendments Nos. 141, 146 and 150 will be considered for Report Stage. Amendment No. 144 requiring names to be in keeping with the local area is a good idea. This is already included in paragraph (k) in subsection (4). The various references to Gaeltacht areas have been dealt with previously. On the question of requiring visual records of protected structures where affected by development, the Bill already provides for records. How best those records can be kept can be dealt with by way of guidelines rather than writing it into the Bill. On Senator Norris's point, where a protected building is affected, local authorities can require and specify reinstatement. On the sequencing of development, this can be done at present. Planning permission for part of a development may be granted at present.

With regard to amendment No. 149, it is currently an offence for a development not to be built in accordance with the permission. The regulation of business hours can be done and it is quite common in areas for specific types of businesses. The amendment relating to the conditions regulating the use of public infrastructure particular purposes is not very clear. Local authorities regulate how public roads are used, for example, for quarrying and for forestry. They can regulate the number of trucks per day, their weights and so on, and there is no need for that amendment.

With regard to mitigating the effects on neighbours, at present these conditions can be specified. On the question of requiring a contribution to local authorities for the wear and tear of public infrastructure - Coillte was mentioned in this regard - this is a user charge which is not suitable for planning laws. However, levies may be chargeable under the section which deals with development construction contributions.

Mr. Norris: That section is more concerned with maintenance.

Mr. Dempsey: I have seen the conditions relating to quarries and an annual charge can be introduced.

In relation to further applications being required after five years, local authorities can impose conditions in that regard. However, I am not sure what is intended by the relevant amendment. Does it suggest that we should impose a condition on a local authority to oblige it to apply for retention on a building it has erected after five years, even though planning permission for its construction was obtained? That does not seem logical. Does the amendment also imply that such a building could be demolished after five years?

With regard to requiring further applications to review conditions after five years where permission lasts longer than five years, almost every planning permission operates on an ad infinitum basis. However, where there are particular discharges, licences, etc., the licences must be renewed and reviewed every five years or less. That might cover Senators' concerns in that regard.

To my knowledge monitoring costs are already recoverable by local authorities. Senator Norris referred to conditions regarding subdivision and use and, again, local authorities already have powers in that regard.

Amendment No. 158 refers to submissions of mobility plans and contribution towards the provision of public transport, matters which are dealt with in the building regulations. As already stated, development contributions can be dealt with under section 47. With regard to the sterilisation of land and the record of ecological sites, local authorities are already empowered to specify these in conditions they lay down.

Mr. Norris: The Minister's comments have been very helpful. Is it correct that he intends to consider amendments Nos. 141, 146 and 150 for Report Stage?

Mr. Dempsey: Yes.

Mr. Norris: Will he consider bringing forward new wordings for each amendment?

Mr. Dempsey: Yes, I will consider bringing forward alternative amendments on Report Stage. We will also reconsider the position regarding amendment No. 143 in the name of Senator Coogan.

Mr. Coogan: Amendment No. 145a should read "to delete 'record including'" and not "to delete 'record'". The basic thrust of the amendment is that the latest technology should be used in keeping records. If, for example, work was carried out on the inside of this building and damage was done, there would be no way to restore it properly if only a descriptive record existed. However, using the most up to date digital equipment in addition to the original architectural drawings would ensure that a complete record would be kept.

I am familiar with a case where a builder was asked to wait before demolishing part of a wall until the representatives of the relevant authority had viewed it and taken some record of it. They went away and when they returned the builder apologised and said that the JCB operator had reversed into the wall. There was no record of how the wall had looked and it had been completely demolished. The amendment is designed to ensure that cases of that nature do not arise in the future.

Mr. Norris: I welcome the Minister's comments in respect of the three amendments he proposes to reconsider before Report Stage. I also wish to support Senator Coogan's remarks in respect of amendment No. 145a.

When we took over 35 North Great George's Street, which is now the James Joyce Centre, the ceilings in the two drawingrooms on the first floor, with the exception of the friezes at the top of the walls, had been completely destroyed. However, we were able to reinstate them exactly because we located the original architectural drawings and the 1909 volumes of the original Georgian Society's records contained two photographs of the rooms in question. A combination of the two permitted us to completely reinstate both ceilings.

The keeping of appropriate records suggested in this amendment allows amendment No. 146 to come into play because it is not possible to have a correct reinstatement unless one knows what was already in place. That could include plasterwork, slates, fireplaces, etc. I welcome the Minister's commitment to reconsider this matter.

Mr. Walsh: This amendment has a certain validity. Senator Coogan outlined instances where a visual record would be important.

The Minister provided clarification in respect of the various amendments under discussion and I am glad he has indicated that he will consider amendment No. 143 for Report Stage. Practical difficulties exist in respect of unfinished estates, etc. Problems usually arise on major estates because of non-compliance with the directions laid down in drawings and specifications submitted by architects. Perhaps a system could be introduced where, on a phased basis, the planning authorities, in respect of developments of a certain size, could seek certificates from architects stating that he or she has complied.

At present, if a property is being sold, it is customary for an architect to provide a certificate to state that planning conditions have been complied with. If such conditions are not met, corrections will be required and retention often arises at that stage. In my opinion it would be apt if an architect certifying a property did not recover his or her costs unless he or she had adequate professional indemnity insurance. I am not sure if all architects carry such insurance but perhaps the Minister could investigate the matter further.

If such a system was introduced, it would reassure local authorities because architects would be required to provide certification. In effect, this would be self-certification and, in the event of difficulties, architects and developers could be pursued subsequently in order to recoup the costs of correcting mistakes. The Bill places a significant burden on the staff resources of the planning authorities. Self-certification, etc., would probably remove some of that pressure.

Mr. McDonagh: I am glad the Minister stated that he will return to the issue of unfinished estates on Report Stage. Would he be prepared to consider the problems experienced by existing estates? I accept that it is difficult to deal retrospectively with matters of this nature but perhaps the Minister will give consideration to this major problem in the coming days.

I have been persuaded by Senator Coogan and Senator Norris that amendment No. 145a would be a good idea. I would like to amend the amendment 145a.

An Leas-Chathaoirleach: It can be done now or on Report Stage.

Mr. Dempsey: I will amend it now to save us coming back to it. I would like to amend subsection (4)(l)(i), line 26, on page 49, to insert "a written and visual record". It is important to have a written as well as the visual record.

Mr. Coogan: Yes. I would like to clarify a point. I said that I did not intend to delete the word "record"; it was not to substitute the word "record" but to include the others. The Minister's suggestion will overcome both of these problems.

An Leas-Chathaoirleach: This is regarding amendment No. 145a?

Mr. Coogan: Yes.

Mr. Dempsey: The amendment to amendment No. 145a will read: "In page 48, line 26, to insert "a written and visual" before "record".

An Leas-Chathaoirleach: We will come back to that.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Amendment No. 142 is distinct from the others.

Mr. Norris: I move amendment No. 142:

In page 48, subsection (4)(f), line 39, to delete "being less than" and substitute "greater".

At the moment subsection (4)(f), line 39 states:

conditions for requiring the satisfactory completion within a specified period, not being less than 2 years...

We want to toughen that up by removing "less than" and substituting "greater than" because the work should be completed satisfactorily in a period not greater than two years.

Mr. Dempsey: Section 34(4)(f) is a new provision which enables planning authorities to impose a condition on a planning permission for housing development, to require the development to be completed within a certain period from the commencement of the works by the developer. The Bill provides, for practical reasons, that the specified period cannot be less than two years. The Senators will agree that one has to allow the builder the opportunity to get everything done, services laid and installed and so on. The effect of the amendment would be to specify a period of not more than two years and in many cases that would be impractical, particularly for larger developments. While I can understand the Senator's point, this comes back to the point made a few minutes ago about finishing estates.

Mr. Norris: Exactly.

Mr. Dempsey: I understand that aim but it would be impractical, in light of matters we discussed earlier on the phasing of planning permissions and so on, to require every aspect of a development to be finished within two years.

However, the important thing about the new provision section 34(4)(f ) that the Senator wants to amend is that this would permit planning authorities to set a definite finishing date which they do not have the power to do currently. We all know the story of the developer having an estate of 20, 30 or 100 houses and after building 99 of them, claiming that he did not have to put in the full range of services because the estate was not finished. This section gets to the point made by Senator Norris. It sets a definite finishing date and the Bill provides for new and improved powers of enforcement which will enable them to ensure that the date is complied with. I am being more reasonable in the time given than the Senator but we are both on the same lines.

Mr. Norris: I would like to tease this out a little more because in a way it seems a little more weighted on the side of the developers than of the consumers. This only says we cannot require the completion in less than two years. There should be something that will put pressure on people to complete. We should not have an infinite timescale here, which we seem to have. The Minister said a specific date will have to be set but it could be an unrealistically lengthy one. It does not specify any greater period. I would like more pressure put on developers. This is the same sort of argument we have already had. My colleague, Senator Quinn, looks as if he might say something because I do remember him speaking very passionately about good business practice when we were discussing the production of reports by State bodies. It was the same sort of thing: it will be produced in not less than so many months. Senator Quinn said, "Come on, you have to get them done in a specific time."

My experience, limited though it may be, in commercial, business and legal life is if you set a clear specific target or deadline, then you achieve it but if you do not set it very tightly then you do not achieve it all. At the moment I have part-time employment with a newspaper which came about because, like Rosie Probert, I cannot say no, even to midgets. I ought to get a telephone answering machine that just says yes to everything because that is what I do. I wind up doing the most absurd things. I am amazed at the effect of a deadline. A good tight deadline sometimes is good business practice. The Minister says it can be inserted but there is nothing in the legislation that says it has to be. We are dealing with the requirement that the completion must be done in a period "not less than". I can guarantee it will not be done "in less than" but it is a question of trying to put pressure on them not to take too much time.

Ms O'Meara: Senator Norris made the point I wanted to make. While I accept the Minister's point that the effect of Senator Norris's amendment would be too severe in that one would expect that in many cases it might take a bit longer to put in ancillary works in a development, however, the point the Senator made is a valuable one. I ask the Minister why he feels it necessary to insert into that paragraph "not being less than 2 years from the commencement of any works".

Mr. Quinn: Now that the Minister has explained it, I understand why he believes that figure is necessary. I will read the sentence again: "conditions for requiring the satisfactory completion within a specified period, not being less than 2 years from the commencement of any works". This is understandable and I do not disagree with it. However, what Senator Norris is proposing is a different problem altogether and deals with the non-completion of work. Planning legislation includes the concept of a planning permission withering - it has a life of five or ten years and if it has not been used it withers and dies. It may well be provided for elsewhere in the Bill. I like the concept of withering because it means an individual cannot obtain planning permission and wait until it suits him to build. That is what Senator Norris is trying to achieve but it is achievable in a different way, not necessarily in this section. I would not be surprised if the Minister were to inform me that it is provided for later in the legislation. It may well be that Senator Norris's concerns have already been met but I am not sure.

Mr. Coogan: I agree with the Minister that often a builder cannot complete his work for a variety of reasons, such as weather conditions, shortage of labour or if an appeal has been lodged which delays the development by three or four months and has nothing to do with him. Why is the period two years? I understand the general thrust of Senator Norris's remarks because this refers to the completion of estates and vagabond and will o' the wisp developers, and at the same time we want to ensure that we are not overly harsh on the developers. I am satisfied that two years is reasonable but I want to know the reasoning behind that figure.

Mr. Dempsey: It should be remembered that it would be in the interest of local authorities, because of the provisions I outlined earlier, to set a finishing date for each planning application for two or more houses. Members should take cognisance of the fact that local authorities and their members have suffered a great deal as a result of unfinished developments that dragged on and on. This is a new condition where they can specify a finishing date. The reason I will not accept "a specified period not being greater than two years" is that it could be totally unreasonable in the case of planning permission for 200 or 500 houses. Difficulties could be encountered, such as those outlined by Senator Coogan, in regard to delays in getting the project off the ground and so on. We cannot be prescriptive.

With regard to most of the conditions which were referred to earlier the local authority will make a value judgment when it has a planning application before it on a reasonable period for the completion of 20 houses. Two years might be reasonable for a self-contained development of 20 houses in an estate but it cannot be less than that because it would not be reasonable for developments involving 300 or 400 houses. What Members are trying to achieve is adequately dealt with in section 34(5).

Mr. Coogan: Local authorities make judgments about what is the most suitable period without including the two year provision.

Amendment, by leave, withdrawn.

Amendments Nos. 143 to 145, inclusive, not moved.

Mr. Coogan: I move amendment No. 145a:

In page 49, subsection (4)(l)(i), line 26, to delete "record" and substitute "visual record (either measured architectural drawings or colour photographs and/or audio-visual aids as considered appropriate)".

Government amendment to amendment No. 145a:

In page 49, subsection (4)(l)(i), line 26, before "visual record" to insert " a written and".

Amendment to amendment agreed to.

Amendment No. 145a, as amended, agreed to.

Amendments Nos. 146 to 160, inclusive, not moved.

Mr. Norris: I move amendment No. 161:

In page 49, between lines 34 and 35 after "determination." to insert the following subsection:

"(6)(a) In the event of the imposition of planning conditions requiring the applicant to agree the details of a condition with the planning authority the applicant shall be obliged to notify the public as required under section 33 in order to facilitate public consultation.

(b) Should the details relate to the construction or operation of shared infrastructure with neighbouring property owners the local planning authority shall be obliged to notify these neighbouring property owners and anybody who previously made submissions or observations to the local planning authority who shall have one month in which to make observations or submissions to the planning authority before a decision is made on the acceptability of the proposal by the applicant.

(c) The planning authority shall require that all conditions requiring agreement between the applicant and the authority shall be determined in writing and a copy thereof placed on the public file in the local planning office to facilitate public information and enforcement.".

The amendment involves the inclusion of a new subsection comprising three elements. Section 34(6)(a) refers to the public's right to know and would oblige the applicant to notify the public of the planning conditions attached. Section 34(6)(b) deals with affected neighbours and their right to know and would require the planning authorities to facilitate them in this regard while section 34(6)(c) would necessitate that conditions requiring agreement between the applicant and the authority should be determined in writing and a copy placed on the public file, therefore, providing public accessibility.

The amendment is about the right to know under clear, specific headings - the public's right to know, the responsibility lying with the applicants; the affected neighbours right to know, the responsibility lying with the planning authority; and laying a file containing all the information in the planning office and making it accessible to the public.

Mr. Dempsey: Through the Bill I am trying to streamline the planning process, not foul it up completely with bureaucracy. If such conditions are imposed by a local authority, currently a person has the right to appeal them and seek greater clarification. That is a sufficient right and I do not accept the amendment.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Amendments Nos. 163 to 165, inclusive, are related to amendment No. 162 and they may be discussed together by agreement.

In page 49, subsection (6)(a)(i), line 44, after "area" to insert "and the notice shall specifically state which part of the Development Plan would be materially contravened by granting this permission".

These amendments deal with making information available to the public. Amendment No. 162 indicates that the notice would state where the development plan would be materially contravened if permission were granted. This information is useful to the public. Amendment No. 163 would require the applicant to erect a site notice containing the information specified in the newspaper notice required or issued by the planning authority. The information on site should be the same as that required in the newspaper publication.

Amendment No. 164 seeks to add "and should the development concerned by situated in a zoned amenity area or related to a protected structure or situated in an architectural conservation area the notice shall be sent to the prescribed bodies as part of the consultation process". In other words, those most centrally concerned with the protection of our environment should, as a matter of course, be given information on the matter.

Ms O'Meara: Amendment No. 165 in my name and that of my colleagues seeks to extend from three weeks to eight weeks the period for making submissions on a material contravention. Although this amendment is grouped with the other amendments I wish to draw attention to it for the reason that a material contravention can, in some cases, be a substantial issue and a longer period than three weeks may be required, particularly by a prescribed group such as that mentioned by Senator Norris, to respond. If it is a material contravention to a development plan it could be a substantial rezoning and time would be required by a individual or community group, or a group prescribed under the Bill, to make a submission. I appeal for a change from 21 days to eight weeks and I hope the Minister will look favourably on this amendment.

Mr. Dempsey: All four amendments relate to the notification procedure for a material contravention. Amendment No. 162 would require a material contravention notice to state which part of the development plan it is proposed to contravene. I see merit in that amendment and we will come back on Report Stage with an amendment. Some minor changes will have to be made to it. Amendment No. 163 would require a site notice to be erected containing the information specified in the newspaper notice. While I understand the reasoning behind this amendment I am not sure how practical it would be. There is only a three week period for making submissions to the planning authority after the authority places the notice in the newspaper. A site notice for the permission will, in any case, have been erected at the site. The notice for permission for the material contravention will have been erected in respect of the application. Any person who made application or submission regarding the application will have been notified separately. The provision of an additional site notice would not add much to the process but would certainly add to the enforcement procedures. Members are aware what happens with material contraventions. In general a planning application is submitted in the normal way, a site notice is erected and a notice is put in the newspaper. As the application is being processed the manager decides it is in contravention of the development plan but feels it should be granted. It is then the material contravention process kicks in. In a sense there are two parallel processes and that is what we have to keep in mind. The site notice sought under this amendment would not be a good idea and would add to the complexity of the situation and to the enforcement procedures.

Amendment No. 164 would require the contravention notice to be sent to the prescribed bodies where the development is in a zoned amenity area. That is catered for in that the original planning application would have been notified to the prescribed bodies. Material contraventions arise when a prescribed body or individual says this land is zoned incorrectly and that it has a problem with it. Once they have made a submission on the application they will be required to be notified of the material contravention under subsection (6)(a)(ii). Therefore, the proposed amendment would not materially add to the notification process because they will already have been notified and I ask that the amendment be withdrawn.

Amendment No. 165 seeks to provide eight weeks for making submissions in relation to the material contravention. The current period in which to make submissions is 21 days and it has always been 21 days. Following on from my previous point and the application having been submitted for six or seven weeks prior to the material contravention question, all of that should be taken into account. The current period of 21 days is sufficient. It is long standing and I do not see any merit in changing it at this time. Such a change would not be in the interests of efficient decision making.

I will accept amendment No. 162 but the point being made in relation to the other three amendments is that they are catered for already.

Mr. Norris: I very much welcome the fact that the Minister is accepting amendment No. 162 but I understand he will come back with a slightly different form of words. Is that right?

Mr. Dempsey: It is just something technical. I do not want to be-----

Mr. Norris: That is fine.

Mr. Dempsey: We can accept it as it is if we change Development Plan to lower case.

Mr. Norris: In that case I would be very happy. That is fine. Thank you very much.

An Leas-Chathaoirleach: Is that agreed?

Mr. Norris: Yes. On amendment No. 163 I understand the Minister is saying, as he did in the case of amendment No. 161, and I did not struggle very vigorously-----

Mr. Dempsey: On amendment No. 162 I also want to delete "part" and substitute "objective" .

Mr. Norris: Thank you. We have been doing good work here over the past two days and we have improved the Bill. I will not push amendment No. 163. The Minister will note I did not struggle too vigorously in regard to amendment No. 161 and I sympathise with him when he says he wants to cut out bureaucracy and allow a situation where proper development can go ahead if that is possible. However, with regard to amendment No. 164, I am only partially satisfied because the Minister says it is already catered for in those circumstances where the prescribed bodies have made representations, objections and so on, but there may be situations where the prescribed bodies have not made representations and, in those instances, they will not receive the notification, as I understand it. It is precisely to cover that gap that this amendment was put down.

Mr. Dempsey: If a prescribed body is informed that a development is going to take place in a particular area that is zoned for amenity purposes or whatever and they make no submission in relation it, it means they would have no objection to the development in that area and that they are not worried about the material contravention.

Mr. Norris: Could it not be an oversight, particularly if there were a number of these things? I am thinking in terms of a fail safe mechanism. We are all human and these things can happen.

Mr. Dempsey: The only other thing I would say is that there will be public notices in place and if they have -----

Mr. Norris: Their wits about them.

Mr. Dempsey: ----- their wits about them - we cannot spoonfeed people.

An Leas-Chathaoirleach: Is the amendment being pressed?

Mr. Norris: I will not press the amendment but with the best will in the world there are cases when things are overlooked in the first instance. It does not add very greatly to any bureaucracy because, as the Minister said, it is almost 100% certain that they will get these things anyway. I do not believe it would make too much difference. Given the spirit of co-operation in the House, as we approach our agreed lunch time, perhaps the Minister will look at this. I am sure he is right in the vast majority of cases.

Sitting suspended at 1.02 p.m. and resumed at 2 p.m.

Mr. Norris: Before the sos I was appealing to the Minister to reconsider this matter on the basis that, although in the majority of circumstances this matter is covered, one could envisage cases where the prescribed bodies had not put down an objection to the planning application merely through human error or oversight. We seek to make it make it mandatory that they are sent notices to cover this unusual circumstance. It would be only a small bureaucratic burden because in almost all cases such notices go out anyway and it would not give rise to much expense. Even though it may be very largely redundant there could be special circumstances in which it could be useful.

Mr. Dempsey: That point is dealt with in the Bill. Public notifications and notifications to the prescribed bodies are fairly extensive. Public notification will take place. I am concerned that we would add to the bureaucracy already involved in the planning system. We cannot continue at the rate we are going trying to cover by way of legislation every possible omission and human error. The prescribed body will receive notification of the initial application and will have an opportunity to make its views known. If, through inadvertence or human error, they forget to make an application or submission at that stage they will have the opportunity of making such application or submission when the notice is put into the newspaper. I do not know of any instance where a prescribed body missed out in such a manner

Amendment, by leave, withdrawn.

Amendments Nos. 163 to 165, inclusive, not moved.

An Cathaoirleach: Amendment Nos. 165a and 354a are related and may be discussed together by agreement.

Government amendment No. 165a:

In page 50, between lines 33 and 34, to insert the following new subsection:

"(7) Notwithstanding section 4 of the City and County Management (Amendment) Act, 1955---

(a) the notice specified in subsection (2) of that section shall, in the case of a resolution under that section relating to a decision of a planning authority under this section or section 41, be signed---

(i) if the land concerned is situated in a single local electoral area, by not less than 3 members of the local authority concerned, being members consisting of or including not less than three-quarters of the total number of the members who stand elected to the authority for that area, or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient, and

(ii) if the land concerned is situated in more than one local electoral area, by not less than three-quarters, as respects each such area, of the total number of the members of the authority who stand elected for that area, or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient,

and

(b) it shall be necessary for the passing of a resolution under that section relating to a decision referred to in paragraph (a) that the number of the members voting in favour of the resolution is not less than three-quarters of the total number of members of the authority, or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient.".

Mr. Dempsey: This amendment forms part of the consolidation of planning law. The Local Government Act, 1991, introduced restrictions on local authority members' powers to direct a manager to make planning decisions by using section 4 of the City and County Management (Amendment) Act, 1955. Section 44 of the Local Government Act, 1991, provided that the powers under the 1955 Act could only be used in planning decisions where three quarters of the members of an electoral area signed the notice of motion and where three quarters of the whole council voted for the proposal. As this is, in effect, part of the core planning law it should be incorporated into this Bill.

Amendment No. 345a provides for the repeal of sections 44 and 45 of the Local Government Act, 1991. This amendment does not introduce any substantive change, although the language of the 1991 provision has been clarified somewhat. My principle aim is to consolidate all planning laws for the convenience of all users of the planning system. This amendment transfers this provision into the planning laws rather than local government laws.

Dr. Henry: I support the amendment.

Amendment agreed to.

An Cathaoirleach: Amendments Nos. 166 and 167 are related and may be discussed together by agreement.

Government Amendment No. 166:

In page 50, lines 34 to 50 and in page 51, lines 1 to 21, to delete subsections (7) and (8) and substitute the following new subsections:

"(7) (a) Subject to paragraphs (b), (c) and (d), where----

(i) an application is made to a planning authority in accordance with the permission regulations for permission under this section, and

(ii) any requirements of those regulations relating to the application are complied with, a planning authority shall make its decision on the application within the period of 8 weeks beginning on the date of receipt by the planning authority of the application.

(b) Where a planning authority, within 8 weeks of the receipt of a planning application, serves notice in accordance with the permission regulations requiring the applicant to give to the authority further information or to produce evidence in respect of the application the authority shall make its decision on the application within 4 weeks of the notice being complied with, provided that the total period is not less than 8 weeks.

(c) Where, in the case of an application accompanied by an environmental impact statement, a planning authority serves a notice referred to in paragraph (b), the authority shall make its decision within 8 weeks of the notice being complied with.

(d) Where a notice referred to in subsection (6) is published in relation to the application the authority shall make its decision within the period of 8 weeks beginning on the day on which the notice is first published.

(e) Where a planning authority fails to make a decision within the period specified in paragraph a), (b (c) or (d) a decision by the planning authority to grant the permission shall be regarded as having been given on the last day of that period.

(8) Where, within the period of 8 weeks beginning on the date of receipt by the planning authority of the application, the applicant for a permission under this section gives to the planning authority in writing his or her consent to the extension of the period for making a decision under subsection (7), the period for making the decision shall be extended for the period consented to by the applicant.".

Mr. Dempsey: We are trying to restate in simpler language the time periods for making decisions on planning applications. These subsections state that a decision must be made within eight weeks unless a request for further information is made or the applicant consents to an extension of time. However, the existing language is very complex and this amendment seeks to put it in clearer English. One important change is that consent for an extension of time can only be given within the eight week period from the making of the application and cannot be given after a request for further information has been made. That is in line with the general tightening up of time limits for decision making.

During the seminars of consultation on the Bill a number of people expressed concern that the requirement to make a decision within four weeks after a request for further information was made was too short in the case of EIA applications particularly where consultation is required under EU law with prescribed bodies. I recognise that in complex EIA cases planners must have enough time to make a considered decision and evaluate the information they receive. They must have enough time to have the necessary consultations. This amendment will replace the provision of a four week period with an eight week one for making decisions where additional information is sought in respect of applications requiring an EIA. I believe this further time is essential in these limited and complex cases. In all other cases, the local authority will have only four weeks from the receipt of further information in which to make its decision.

Amendment No. 167 which has been tabled by Senators O'Meara, Costello and Ryan is an alternative amendment, the effect of which would be to change the present law of a default grant of permission to one of a default refusal of permission when the planning authorities do not make their decisions within eight weeks as required by this Bill. I have thought long and hard about this provision as it was obviously a serious part of the review. Nobody likes planning permissions to be granted by default. However, because of the serious nature of granting permissions by default, planning authorities take the utmost care to ensure they decide on an application and that a decision is made in the time required.

This provision keeps them on their toes and for that reason default permissions rarely arise in practice. I am not aware of any but I am sure it has happened. If a default refusal was introduced it is likely the system would become more lax and planning authorities would become more relaxed in their time limits. This would ultimately be to the detriment of the system and I ask the Senators to accept my amendment rather than the one they put forward.

Dr. Henry: The amendment is a big improvement on what was there previously. What has been drawn to my attention is that there is no minimum time period. That might be important in case people think that something could be slipped through over night. Perhaps the Minister will explain that this can be avoided.

Mr. Dempsey: That will be dealt with in regulations. The Senator is right. There was a court case, I think in Dun Laoghaire, which established that there needed to be a minimum time but it will be dealt with in regulations. There was another court case where planning permission was granted literally within seven or ten days of the application being made and it was taken to the High Court. There is case law on that and it is reflected and catered for in the regulations under the Bill.

Dr. Henry: I thank the Minister for that reassurance, but if on further consideration I find that is not satisfactory, may I introduce an amendment on Report Stage?

An Cathaoirleach: The Senator may, if she wishes, bring forward an amendment on Report Stage.

Amendment agreed to.

Amendment No. 167 not moved.

An Cathaoirleach: Amendments Nos. 168 and 169 are related and will be discussed together by agreement.

Mr. Coogan: I move amendment No. 168:

In page 51, subsection (10)(a), line 35, after "appeal" to insert "and this grant will apply only to the original applicant".

I am not sure if it is appropriate at this stage to refer to what was discussed earlier whereby an applicant is deemed not to have carried out some works in the past and likely not to carry out works in the future. In a later section of the Bill a local authority will have the right to refuse planning permission to that person. If a further application is made and there has been no change in the name - the original application could have been in the name of a person who is bona fide, who has or has not carried out work before - no judgment can be made. I want to ensure, if the application applies to the same person, that by some subterfuge you do not get the person who would have been refused the original application.

Mr. Dempsey: The Senator's original intent, and what he said at the outset, is catered for in later sections of the Bill which deal with people who do not comply with planning permissions and so on. The effect of this amendment would be a complete and total change in the principles underlying planning and development law. To go this route - although the Senator will be aware that Meath used it very early on and I think Galway also - an occupancy condition can be imposed in unusual cases, for example, where planning permission in respect of a house is granted as an exception to the general planning policy for a rural area.

Mr. Coogan: I know of one or two cases where conditions applied to who should occupy a house but they were challenged. What often happens is that after some time the local authority takes its eye off what is happening and the person who reapplies is different from the original applicant. That has happened and continues to happen.

Mr. Coogan: The reason I tabled the amendment at this stage was in the hope of preventing that happening. If the Minister is satisfied that the later section in the Bill will preclude anybody from doing this I will withdraw my amendment.

Amendment, by leave, withdrawn.

Amendment No. 169 not moved.

Mr. Coogan: I move amendment No. 170:

In page 52, subsection (11)(a), line 14, after "person" to insert "or company".

This amendment ensures that the word "company" is used. I know it is used earlier and subsequently in the Bill. I thought it appropriate that, for clarity, it be included at this stage also.

Amendment agreed to.

Mr. Norris: I move amendment No. 171:

In page 52, subsection (11)(b), line 29, to delete "that are of a substantial nature".

This is to prevent a two tier situation. If there are infringements and failures to comply with planning applications I do not see why it should be left to a subjective view as to what is of a substantial nature. If there are planning requirements they should be met. I do not see why we should have this rather vague provision that they have to be of a substantial nature. Presumably, most infringements would be of a reasonably substantial nature and perhaps the Minister can explain it to me. Perhaps there is something I have not seen.

Mr. Dempsey: The simple explanation is the Constitution. We took a long look at how we might address the question of people not complying with planning permissions, not finishing estates and so on. We looked at various mechanisms, including those where local authorities would have the power to refuse planning permission on the basis of previous records. In all the legal advice we received, it was pointed out continually that depriving somebody of planning permission, which he could have otherwise obtained, could have the effect of preventing somebody from earning their livelihood. As the Senator will appreciate, that is a serious matter constitutionally. For that reason, a decision such as the one we are discussing should only happen in the most serious of cases. The advice I have been given - I think the Senator will accept it - is that it is only when somebody substantially breaches the planning code that he should be liable to this penalty. In other cases, the planning authority has greatly improved powers for enforcement. It is basically down to the person's constitutional right to earn a living and he cannot lightly be deprived of that. That is why the matter is brought before the courts to make such decisions; they are deemed to be acting in a constitutional manner at all times. For that reason I ask the Senator to withdraw his amendment.

Mr. Norris: I wish to ask one or two questions and then I will withdraw my amendment. What constitutes a substantial infringement? Are there areas of margin about which the Minister would be worried? Precisely who makes the decision as to whether it is substantial or not? Is it the planning authority manager? I will be withdrawing the amendment.

Mr. Dempsey: Initially I suppose the local authority will come to a conclusion based on a past record that what has happened previously constitutes a serious breach. When the local authority has reached that decision, it will state its case to the High Court, which will either confirm or revoke that particular decision. It is the High Court which makes the decision but the local authority will make the initial decision to refuse the planning permission because of the past history of the applicant. The court will have to confirm that decision.

Mr. Norris: The Minister has answered my question. I am also a little worried about the uniformity of standards but presumably there will be a certain uniformity in that process. I suppose it cannot be guaranteed but one would hope there would be. I have worries about sensitive policies but I will withdraw the amendment.

Amendment, by leave, withdrawn.

An Cathaoirleach: Amendment No. 172 is in the name of Senator Norris. Amendments Nos. 174, 176 and 178 are cognate. Amendments Nos. 173, 175, 177 and 179 are cognate. Amendments Nos. 172 to 179, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Mr. Norris: I move amendment No. 172:

In page 52, subsection (11)(d), line 36, after "the" to insert "District, Circuit or".

We are rattling through this. All these amendments address the same issue. One answer from the Minister will do for all just as one contribution from me will do.

The idea behind this is that on the question of architecture in sections 63 and 64 one goes to the District Court. I wonder why one must go to the High Court in this case. There is ease of access to the District Court. It is less problematic and it is less expensive getting to the District Court than to the High Court. Is there a specific reason for this? If not, can the Minister permit use of the Circuit Court or District Court?

Mr. Dempsey: My answer is the same in this case.

Mr. Norris: Is it to do with constitutionality?

Mr. Dempsey: Yes. An issue which would be almost similar to this is where one would be striking a person off a professional register. One cannot do that in the District Court or the Circuit Court. It must be done in the High Court because of the constitutional implications. The same applies here.

Ms O'Meara: I presume the Minister will give me the same answer in relation to amendment No. 173, where we are attempting to insert Circuit Court instead of the High Court for the obvious reason that it is cheaper.

Mr. Dempsey: Yes.

Amendment, by leave, withdrawn.

Amendments Nos. 173 to 180, inclusive, not moved.

Section 34, as amended, agreed to.

SECTION 35.

Mr. Norris: I move amendment No. 181:

In page 54, subsection (3)(a), lines 6 to 8, to delete ", or such longer period, not exceeding 5 years, as may be specified by the planning authority".

Section 35(3)(a) states:

Where outline permission has been granted by a planning authority, the subsequent application for permission must be made not later than 3 years beginning on the date of the grant of the outline permission.....

That seems to be perfectly satisfactory without adding the additional qualification "or such longer period, not exceeding 5 years, as may be specified". Why would they need a longer period, not exceeding 5 years?

Mr. Dempsey: The only reason they might need a longer period is if it was a more complex planning application for a complex project, for example. This just allows a little extra flexibility. That is the reason it is limited to five years. The local authority would decide whether it would be three or five years.

I am not rigid about it. I can see more advantages in allowing for a discretionary extra two years rather than just applying the cut-off after three years. If the Senator did not press his amendment, I would appreciate it. Allowing it to continue for a further two years if the local authority so decides will not make a huge difference one way or the other.

Mr. Norris: I take it the decision is still in the hands of the authority. Is that correct?

Mr. Dempsey: Yes.

Mr. Norris: In that case, I will not press it. However, I think they have enough time because they will have been granted the outline permission already and then they will have three years, which is a considerable amount of time and I am not convinced they want it. If it still remains at the discretion of the local authority, then presumably they will be able to make up their minds. Therefore, in response to the Minister's wish, I will not press the amendment.

Mr. Coogan: I concur with what the Minister is proposing but I see some difficulty if a local authority makes a decision for one person that his or her subsequent application must be made within three years and another person nearby comes along and gets an extension. It will create difficulties for the local authority in justifying why it made a decision against another application and it will actually create even more work.

The three year period should not be specified in the Bill and the reasoning behind that is simple. While the Minister spoke about large developments which may take time to develop for various reasons, I often hear of cases where a single application is submitted but is pushed back for family or economic reasons, the likes of which I am sure the Minister will be aware, such as a late marriage. A five year period was always adequate to allow a person to make a full submission for planning permission. I cannot see the justification for this and it may create difficulties for local authorities over different decisions being made side by side.

Mr. Dempsey: On the last point, we are all keen in this House to give local authorities as much flexibility as possible and this just gives them that flexibility. I accept what Senator Coogan said. We do not have any great argument about it one way or the other. The period is five years as it stands and the Bill provides for making it three years or, at the discretion of, or by agreement with, the local authority, extending it to five years.

Mr. Coogan: I would not press the issue but I see some difficulties which may arise.

Amendment, by leave, withdrawn.

Government amendment No. 182:

In page 54, between lines 12 and 13, to insert the following new paragraph:

"(c) Sections 39, 40 and 41 shall not apply to the grant of an outline permission.".

Mr. Dempsey: Amendment No. 182 will clarify that sections 39, 40 and 41 do not apply to outline permissions. Sections 39, 40 and 41 are the provisions which give the general time limit of five years to planning permissions and permit the authority to grant a permission for a longer time or to extend the life of a permission in certain limited circumstances. This section already provides that a grant of outline permission only lasts for three years unless a longer period up to five years is specified. The outline permission will expire unless an application is made for full permission. This amendment will ensure that no argument could be made that the life of the outlining permission can be extended. It is just to clarify the difference between the outline and the full planning permissions.

Amendment agreed to.

An Cathaoirleach: Amendment No. 183 is in the name of Senator Norris. Amendment No. 184 is related. Therefore, amendments Nos. 183 and 184 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Norris: I move amendment No. 183:

In page 54, subsection (4), to delete lines 17 and 18, and substitute "only on the basis that the authority is satisfied that the details of the proposed application for the subsequent grant of permission is exactly the same in every detail as previously permitted in the grant of outline permission".

This amendment would delete from subsection (4) lines 17 and 18, stating: "provided that the authority is satisfied that the proposed development is within the terms of the outline permission." After all, an outline permission necessitates very flimsy submissions, not the exact detail. I am suggesting that lines 17 and 18 should be deleted and replaced with a phrase that ties it up far more in terms of the planning permission, as follows: "only on the basis that the authority is satisfied that the details of the proposed application for the subsequent grant of permission is exactly the same in every detail as previously permitted in the grant of outline permission". In other words, it provides that one cannot put in for a catch-all, vague development and then submit a specific proposal, which may be noxious in some detail, yet the planning authority - having had no opportunity to consider those details - is obliged to grant permission.

Mr. Coogan: Section 34(11)(a) states:

Where, having regard to-----

(i) any information furnished pursuant to regulations made under section 33(2)(j), or

(ii) any information available to the planning authority concerning development carried out by a person to whom this section applies, pursuant to a permission (in this paragraph and paragraph (b) referred to as a "previous permission") granted to the applicant or to any other person under this Part or Part IV of the Act of 1963,

This comes back to the point I made earlier of ensuring that the applicant is a person of a substantial nature. It is very simple.

Mr. Dempsey: Section 35(4) provides that a planning authority shall not refuse to grant permission on an application for permission on the basis of any matter decided when the outline permission was granted. That is the section as it stands. The Senator's amendment would provide that a planning authority shall not refuse to grant permission where the details of the application are the same in every respect as the details submitted in the outline application. The amendment does not make any real sense to me because an outline application, by its very nature, does not contain the same detail as a normal planning application. The amendment, in effect, would render this provision useless and on that basis I cannot accept it. As the Senator said, it might be the intention of somebody to submit a major outline planning application, but he would not be able to obtain full permission without the details being known. However, that is already catered for in the Bill. An outline planning permission can be relatively simple and straightforward. The Bill provides that where an outline application is submitted and decisions are made on the height or size of the building, provided a person sticks by those dimensions in the subsequent full planning application, they cannot be objected to.

Mr. Coogan: I will withdraw the amendment. It is a bit tight, but I just wanted to make sure that there was some relationship between outline permission and full planning permission.

Mr. Dempsey: There has to be because there is a tie up in that section. In relation to the Senator's second point concerning amendment No. 184, I would like to clarify the matter. The Senator is concerned about the past history of a developer. Even if he has obtained outline planning permission it would still be open to the local authority to use section 34(11) to prevent him from building. Therefore, the matter is covered.

Amendment, by leave, withdrawn.

Amendment No. 184 not moved.

In page 54, lines 19 to 23, to delete subsection (5).

It seems rather undemocratic that no appeal can be brought under section 36 against a decision. Section 35(5) states:

No appeal may be brought to the Board under section 36 against a decision of a planning authority to grant permission consequent on the grant of outline permission in respect of any aspect of the proposed development which was decided in the grant of outline permission.

 

There is absolutely no appeal whatever. On the face of it at least, that seems to be a direct abrogation of democratic rights.

Mr. Dempsey: Section 35(5) provides that any matter decided at outline permission stage shall not form the basis of an appeal to the board. The amendment before the House would delete that provision. The whole benefit of having an outline permission system is that it is established in principle that a certain land use is acceptable in a certain area. Of course, a decision to grant outline permission can be appealed at the time it is made. There is nothing to prevent that. We are saying that the same procedure applies for the outline permission and it can be appealed to An Bord Pleanála. When that decision is finalised, that is the permission. When somebody seeks permission at a later stage, one cannot re-appeal matters that have already been decided. Because of the way it is worded, I realise it may appear that a person has no appeal at the outline permission stage, but they do. Once those issues are decided there is no point in rehashing them a second time.

Mr. Norris: I am grateful for the Minister's helpful explanation, but it still leaves the problem of the detail, against which nobody has a right of appeal.

Mr. Dempsey: No. To put it at its simplest, if somebody applies for outline permission and they look for a two-storey house of 2,000 square feet and that is appealed all the way to An Bord Pleanála and granted, then when the person comes in for what we normally call full permission, a third party can appeal any new information that is there. They could appeal the entrance, exit, where it is positioned on the site or whatever else, but not the fact that a two-storey dwelling is going up.

Mr. Norris: I am happy with the Minister's explanation. I was not sure whether, if they applied for a two-storey dwelling and obtained outline planning permission, and then decided to cover it in those awful architectural warts - plastic granite bricks - one would have a hope of objecting to it.

Mr. Dempsey: You could.

Mr. Norris: That is fine.

Amendment, by leave, withdrawn.

Section 35, as amended, agreed to.

SECTION 36.

An Cathaoirleach: Amendments Nos. 186, 187, 188, 190 and 312g are related and may be discussed together.

Mr. Norris: I think we could do with some visual aids. I move amendment No. 186:

In page 54, subsection (1), lines 27 to 34, to delete paragraph (a) and substitute the following:

"(a) An applicant for permission and any other person may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34.".

This comes back to the payment of a fee. One of the effects of deleting that paragraph and putting this in is to reopen the whole question of the fee, but in a rather interesting and new way, about which I have had some discussion with the Minister already. Section 36(1)(a) refers to "... any person who made submissions or observations in writing ..." - they will have done it already and they will have paid for this privilege. A fee is involved. Am I not right? I am right. Now we will require another fee. Let us have a bit of democracy. How many fees do we want? There may be multiple planning applications on the same site. I have discussed this problem with the Minister.

Yesterday we comforted ourselves with the thought that the fee was only £20. What about organisations involved in a great number of these cases at £20 a shot? This fee could tax the resources of an individual or group. I told the Minister that an eminent authority - I am glad to say he is not from Trinity College, Dublin because I know it exercises the inferiority complexes of some of my colleagues if I mention that place - from University College Dublin, Professor Kevin B. Nowlan, said that the imposition of this type of fees was a disaster and would cripple some of these organisations. An additional fee will be imposed here. How many times will people be expected to pay this fee?

We were bulldozed and flattened yesterday by the superiority of numbers. We had only one vote but we lost it. The Minister said he was absolutely resolute. I dare not use the word "adamantine" because I understand from the Order of Business that my friends do not know what it means and they required an explanation, but the Minister was adamant at least if he was not adamantine. He insisted, we had a vote and his side won. However, this is a more troubling matter. I see the Cathaoirleach leaning forward and, perhaps, he is about to warn me about repetition. Therefore, I will not repeat myself. I hope the case I have made will appeal to the Minister.

Ms O'Meara: Section 36 is about an appeal to the board and it is one of the most critical in the Bill. It is my understanding that section 36(1)(a) means that only persons that have made submissions or observations in writing on the original application can take an appeal. Is that right?

Mr. Dempsey: Yes.

Ms O'Meara: That is one of the most fundamentally undemocratic things we could do. It is only if one has made an observation or a submission on the original planning application that one can go to An Bord Pleanála, whereas anyone can go to An Bord Pleanála at present. Unless a person makes an observation on the planning application from the outset they have no right to go to An Bord Pleanála.

I know where this approach is coming from. This matter has been discussed in more than one public forum recently and also in the past. The fact that any third party or anyone can make an objection to An Bord Pleanála means that we are holding up developments and planning applications for major developments that we want to go ahead. It is wrong that one person may, by sending in an appeal to An Bord Pleanála at the last minute and perhaps who has no direct connection with the planning application, hold up the planning process for months on end. We need to end this. It seems that in trying to achieve something we are using a sledgehammer to crack a nut. In doing so we are creating an undemocratic scenario which will totally exclude a large number of people.

The effect will be to generate far more submissions and observations in the first instance because people will want to maintain their right to appeal. In other words, they will make submissions and observations in the first instance in order to ensure they have that right at the second instance. Amendment No. 186 is important and I hope we will be able to tease it out. I also hope the Minister will take our views on board.

Dr. Henry: I agree with Senator O'Meara's comments. I also agree with Senator Norris's concern about the multiple fee applications. I asked a question yesterday but I did not get an answer about the position in 1984 when fees were charged with applications. This scheme proved to be functionally and financially disastrous and was withdrawn after a number of months. Have the Minister or his officials been able to find out anything about the 1984 scheme?

Mr. Coogan: I concur with what Senator O'Meara said. I made the same point in an earlier debate. The Minister indicated that the cost of the initial submission would be between £15 and £20. If a person does not understand the application or fears it may expand later on or may impinge upon them, they will make an appeal at the earlier stage because the cost of the initial submission is small and it will allow them to lodge an appeal later on. We will encourage people to write in rather than discourage them.

With regard to my amendment, consider the case of an individual who produces a plan, shows it to his neighbour and the neighbour is satisfied that it does not impinge up him and makes no appeal against it. The application goes into the local authority and the local authority applies conditions to it. Those conditions must accord with the development plan but perhaps some of those conditions now affect the original applicant. The result is that the applicant is disbarred from making an appeal to An Bord Pleanála on that basis.

Where a person has not made an appeal and where they are directly affected - perhaps there is a better legal term than "directly affected" - but where they are quantitatively and directly affected by the application a person should have the right to make an appeal at the appeal stage, even if they have not made it at the initial stage.

Mr. Walsh: I see the motivation behind this section. Many vexatious objections are made for a variety of reasons - often many of them have nothing to do with planning. The Minister alluded to people looking to extract moneys in order to withdraw their objections. This is an abysmal problem and should be addressed in the Bill, to make it illegal.

Mr. Norris: It is criminal.

Mr. Walsh: It is not illegal.

Mr. Norris: Is it not?

Mr. Walsh: It is not. I was amazed to discover this in a case that I was familiar with. The applicants had an objection and the objectors clearly made it known that compensation could overcome the objection. I approached one of the Minister's predecessor and he advised me that the best thing to do was to settle with them. I was appalled. There should be a provision in the Bill to make that type of approach illegal. The difficulty would be to balance that with other rights. In taking action to address vexatious objections I am concerned that we may be encouraging people to lodge an objection with the planning authority at an early stage in order to cover themselves.

Senator Coogan mentioned another aspect with regard to conditions being imposed. A person may examine a planning application and be happy with it but if a condition is attached which impinges significantly on them, they will be at a disadvantage if they have not objected.

Another aspect to do with public notices occurred to me when I was going through the Bill and perhaps it could be examined. There are cases where people are unaware that an application has been made. If we are to debar people from objecting if they have not made a formal objection to a planning application at the initial stage, we should seek to make the knowledge of the application as available as possible. We should strengthen the provisions on public notices and site notices to minimise the risk of people not being aware of an application.

These are fundamental elements of the Bill. I presume the Bill has been cleared by the Attorney General's office but I wonder whether there is a legal implication whereby somebody could make a subsequent challenge.

vetica" size="2">Mr. Norris: I am extremely grateful to my colleagues for filling in the outline of my argument. I concentrated my first contribution on the question of the fee because I saw this as a golden opportunity to get in this angle. Of course, there is the much wider aspect of excluding citizens from a right of appeal. I will not rehearse the circumstances but I think they would be quite frustrating.

I am absolutely appalled at what Senator Walsh said. I had no idea that planning law was being used to extort money from people. If this is true, it certainly should be a matter for criminal law. It is analogous to blackmail and it should be stopped. Someone in Government, perhaps this Minister or the Minister for Justice, Equality and Law Reform, should address the issue because it is absolutely intolerable that this kind of blackmail should be sustained. I have never heard of it but obviously my colleagues have. It is disgraceful and is the kind of thing that frustrates the efforts of people like me who wish to bring as much openness and democracy as possible into planning legislation. I can well understand the Minister, the Government, county councillors and developers wanting to clear their way through this if that is what they are subject to.

We have heard the word "vexatious" being used with regard to objections. I took that largely to mean little old ladies who did not want to be overlooked in their bathroom or whatever and were holding up a development. This gives a new twist to it. I still think our amendment is wisely worded. I do not think it will open the door to the vexatious claims mentioned by Senator Walsh. If it does, we ought to address that properly. It should, in all circumstances be legal. People who want to be difficult will always find the means to be difficult. They are not restricted to the conservation lobby, which is sometimes troublesome, nor to eccentric old ladies, old gentlemen or whatever-----

Dr. Henry: The Senator is being very sexist.

Mr. Dardis: Or even eccentric fellows of Trinity College, Dublin.

Mr. Norris: Yes, absolutely, a disgusting bunch among whom I do not number myself.

Consider, for example, the Carlton site on O'Connell Street. The application was not held up by An Taisce, the Georgian Society or little old people of any sex whatever, but by sheer spite and commercial rivalry. One developer is hacking away at another, has lost all the appeals and is now going for a judicial review. When there is that level of malice in a case, no amount of restricting the rights of ordinary citizens will achieve anything. This is developers at each others' throats. They are the Tyrannosauri rex in terms of development and are doing a huge amount of damage.

A good case has been made for this amendment on a number of grounds. We will leave it open to the Minister if he wishes to rephrase it or take up some of the ideas. I appeal to him to talk to his colleagues, if it is not directly within his province, and to root out this abominable practice of using the planning legislation to blackmail businesses, individuals etc. I was unaware of this - how naive I was. Now it is out in the open, let us do something about it.

Mr. Dardis: We can say with reasonable certainty that Senator Norris's Tyrannosauri rex would be involved in the initial stages of the process, as well as the latter stages. The Bill as drafted is correct because it does not only deal with objections but submissions and observations - it is a much wider class than those who make objections. If the local authority is to make a reasonable decision, people should be encouraged to make their observations and objections at that stage in the process and not, as happens, to wait until the last day, after the permission has been granted or refused, to go to An Bord Pleanála. One of the classic examples of this - I do not deny the right was there - is the Kildare town bypass, which is regarded as good from the point of view society as a whole. There is a potential environmental impact which was thrashed out over days at a public inquiry. One person, on the last day, can resort to blocking it.

I am sure the Minister will confirm that he is trying to ensure some balance in the system so there is an onus on people to make their observations known at the stage when a planning authority needs to be aware of them so it can make a reasonable judgment. It must have regard to observations and submissions in making its decision, whereas previously it did not. If we are to achieve the targets set out in the national development plan in terms of our required infrastructure, some reason must be introduced to the system. That does not deny anyone their democratic rights to object subsequently to An Bord Pleanála or, in the case of a point of law, to go to the High Court.

Mr. Dempsey: We have had an interesting discussion on this and we had an even longer one on it yesterday when I finished by saying Senators were not going to change my mind and I was not going to change theirs - the same applies today.

Mr. Norris: There is a new element - the multiple fee.

Mr. Dempsey: I know there is a new element. I will address the amendments first and then the points made by Senators. Amendments Nos. 186, 187 and 190 are alternatives to each other. Under amendment No. 186, any applicant and any other person can appeal a decision of the planning authority to the board. Under amendments Nos. 187 and 188, an applicant and any other person can appeal to the board if they have paid the appropriate fee. Under Senator Coogan's amendment No. 190, any person who is directly affected by a development can appeal it, even if he or she has not made a submission on the application. Amendment No. 312g applies the same principle, that is, any person is entitled to appeal a decision to make a planning scheme in a strategic development zone even if he or she has not participated in the initial decision making process.

As I said on Second Stage and yesterday, this Bill has made important changes to the rights of third parties in the planning process. For the first time, their right to make submissions and to have them considered is set out in planning law. Planning authorities are the final decision making body for 90% of planning applications and rightly so. It is critical that people who have something to contribute, and as Senator Dardis said, not just those who want to object, do so at that stage because most decisions are not appealed. My point was made by Senators Coogan and Walsh.

I am being portrayed, although not by those two Senators, as trying to prevent people from making submissions and observations to the planning process. Those accusing me of this propose that I should abolish the fee, which was also suggested by Senators Coogan, Walsh and Norris. I am being asked to reconsider this because more people will now make sure they have made a submission so they will have the right to appeal and extra work will be placed on local authorities. I do not mind that. The more people who participate at local level where decisions should be made, the better it is for the system. As I said yesterday, £20 is not a huge sum to pay for that right and privilege. I have said enough on fees.

Mr. Norris: It is the second £20 fee.

Ms O'Meara: The An Bord Pleanála fee is £100.

Mr. Dempsey: If one applies for planning permission for a house, one pays the local authority £47. If one does not like the decision made by the local authority, one must pay a fee to An Bord Pleanála to appeal it. That is not unusual.

Mr. Norris: As an applicant, one has an active interest in it. What about somebody who is threatened by a possible development?

Mr. Dempsey: Somebody who feels threatened obviously has an active interest in the subject. The local authority and An Bord Pleanála must administer the planning laws and try to ensure that everybody gets a fair hearing. It is not unreasonable that a person should contribute even a small amount towards the cost of administering the system. People should bear in mind that the Irish planning system is the most open in Europe. Some European countries do not allow any third party appeals. Such fees do not arise there because people do not have the right to make a third party appeal. Concerns may be expressed but people should bear in mind the overall balance of the Bill and the rights which are being preserved and enhanced. The small number of negative aspects are balanced by the many positive parts of the Bill.

Senators Coogan and Walsh cited a number of examples in relation to the appeals system. I accept it is harsh that a person can be happy with a planning application after he or she has viewed it, but the local authority can subsequently attach conditions to it that changes the overall proposal. It has not proved possible to draft an amendment that would cover that situation. We are considering the matter but I cannot make any promises on it even in the context of Report Stage. A person who is substantially affected by a decision may not have a right of appeal to An Bord Pleanála, but there is a judicial route which he or she can follow. I accept it is not ideal and that it is a problem in the section, but the fee will give people the right to appeal and to be kept informed of what is happening. As I said yesterday, I do not intend to change this provision.

Senator Norris expressed surprise in relation to people abusing the planning system.

Mr. Norris: Extortion.

Mr. Dempsey: Extortion and blackmail are taking place on a grand scale. One may ask why it is not dealt with under criminal law, but that is only useful if people are willing to stand up and report it. No developer or builder will stand up and say it because he knows that the next time he lodges an application for planning permission, even if there is no extortion, the people involved in the racket can arrange for objections to be lodged to hold up the development and any future developments in which he might be involved.

It is happening on a grand scale throughout the country and I have been approached by builders in Dublin and a developer in Meath. I have also heard it from construction industry sources in Galway, Cork and Kilkenny. It is the same story of people lodging objections and making appeals to An Bord Pleanála at the last minute. The developer receives a telephone call within a week or ten days and is told that if he pays a certain amount, the objection will be withdrawn. This is taking place and it is an abuse of the system. It is nothing other than extortion and blackmail. As I said on Second Stage and as the Senator noted, I have never heard an accusation that any conservation bodies, organisations or NGOs were involved in that type of activity.

The tighter we make the system, the better it will be for everybody. People talk about democracy, but what is democracy? Is it allowing the tyranny of the individual over society? I do not agree. My view is that it is trying to maintain the balance between the national interest and the common good and the rights of the individual. An individual's rights should be protected, but he or she should not overrule the common good. The idea is to strike the right balance. I do not suggest that the current planning laws or this Bill have the correct balance, but it is the best attempt that can be made at present.

Mr. Norris: The Minister said some interesting and shocking things. I must be the most naive person in the House because all my colleagues indicated that they knew about this, but I did not know anything about it. We should not give up; this problem is not insoluble. I presume some type of computer trace is being placed on the people involved. It is similar to what Dublin Corporation faced regarding compensation claims. If there is a constellation of the same people making these types of objections, we should expose them.

There are no journalists in the House but where are the investigative reporters when it comes to this problem? Why are people not writing articles exposing this type of blackmail? I read many newspapers, but I have never seen an article about this problem? Why in the property supplements is there not a large piece about it? Why are these people not exposed and named? I suppose the editors are afraid of libel.

I wish to return to the issue of fees and then I will leave it. The Minster said the fee gives a right to appeal, but that is not the case. There is nothing innate in the payment of a fee that gives a right to appeal. That will be the case under this legislation but there is no automatic organic relationship between the payment of a fee and any right. We will make a decision about this in the legislation.

Mr. Dempsey: As the Bill stands, if a person does not make a submission and pay the fee, he or she will not have any right to appeal.

Mr. Norris: That relates to this legislation, but I was trying to demonstrate that the Minister was using it as a grand general proposition that payment of a fee entitles one to an appeal. That is the case in the Bill as it stands, but we are trying to alter that, although unsuccessfully to date.

I used the word "active" earlier and perhaps my point was badly expressed and I did not explain properly what I meant. My point is that there is a difference between somebody who is seeking permission for a development from which they will benefit, such as a commercial development, and somebody who is doing nothing except sitting in the little house next door. They are not active in that sense. They are passively threatened by the development by virtue of their existence. I do not understand philosophically why somebody who has been sitting in a little house all the time and is then threatened by a development should have to pay a fee to object to it. Why should they have to pay a fee for staying where they are, not making any material change and preserving themselves?

I would be glad if the Minister provided me with information now or later because I want to get at the reasons behind the obsession with the fee. It has been remarked to me that this is the result of a developer's lobby. I do not know whether this is true. I see the Minister shrugging resignedly. I am not making accusations in this regard; after all developers have a legitimate right to lobby. Can the Minister quantify the likely yield from this? We ought to know. It is being presented to us that this is necessary in order to feed the machine. Can we have some idea about how much it is likely to yield? I am disappointed that the notion of the multiplier effect has not softened the Minister. If one makes a submission and pays a fee, why should one have to pay again? I do not understand this. It seems wrong. It is like going to the theatre and being charged for another ticket during the interval.

Mr. Dempsey: It is like going to the pub; if one buys the first pint, one does not get every subsequent pint free.

Mr. Norris: One is not getting an extra pint here, one just has the right to appeal.

Mr. Coogan: I am shocked that Senator Norris did not hear about this before. It was referred to during the Second Stage debate.

Mr. Norris: Unfortunately, I was ill.

Mr. Coogan: Sorry, the Senator was not present. I will explain briefly how it operates. A substantial building is taking place. An objection is lodged, the builder has borrowed money and he losing workers during this time. He receives a phone call saying, "I have lodged my objections. The objections have cost me a lot of money because I had to get advice from A, Y and Z." The builder now understands what is being said to him, that he must cover the costs to the other person, which are substantial. I know this has happened in Galway and also in other areas. One individual, in fact, described himself to me as a professional objector.

Mr. Norris: The point was made earlier that there should be some arrangement for people to make an objection.

Mr. Coogan: This is what the Minister is trying to do. I am not trying to create an image that the country is full of little old ladies who do not know what is going on around them and a building springs up beside them. However, this happens. My amendment proposes that at the stage of appeal to An Bord Pleanála, only a person directly affected, in other words, where the consequences of the development will affect that person financially or visually, should have the right to appeal. I am excluding the others. I accept that professional groups such as An Taisce and the Heritage Council will be making submissions at the beginning. They will be observing planning applications and considering them in detail. However, individuals who are not au fait with the system may not. I am suggesting that those who have not lodged an appeal originally should have the right to appeal, on paper, at the second stage if they are directly impinged upon by the proposed development.

Mr. Walsh: There are three issues involved. I have no objection to a fee for making observations. This may have a positive effect in terms of trying to control what Members abhor. However, it is not always easy to apply the law. In some instances I have sought legal advice in relation to objections. These people are quite clever in their approach. Obviously there is a good reason from their point of view for lodging an objection. They may claim the development will affect them in a small way. The advice I received was that I would not have a case in law that would stand up.

I do not know how this matter can be dealt with but it is becoming an increasing phenomenon. This is highly undesirable and is bringing the whole system into disrepute. It is certainly holding up development. I urge the Minister to see what steps might be taken to outlaw this practice. One must distinguish between the genuine person who is affected by a development and who may for their own reasons decide to accept compensation as a quid pro quo and the person of sets out deliberately to extract money from a developer. I do now know how this might be achieved. Perhaps there could be some way of screening objections because most of them are time related. Often the motivation for lodging objections is to delay the developer. Unfortunately, the developer cannot run with the appeal because of the timelag involved, therefore he needs a determination. It is often cheaper for a developer to determine the matter because he is aware of what he will lose given the extended time involved or what he will save by determining the matter in the first place. It would be helpful if a way could be found to determine these vexatious objections.

Mr. Norris: The same names keep recurring. This gives a pretty good clue.

Mr. Walsh: That is correct. In relation to the amendments, I have sympathy with the person directly affected. The Minister said he would consider this amendment on Report Stage. Perhaps this could be done without excluding the beneficial proposals in the section.

Ms O'Meara: In relation to professional objectors referred to by Senator Coogan, this section will not prevent that practice. The professional objector will make it his business to lodge the objection early so that he can play a card at An Bord Pleanála level. Clearly the section will not deal with that problem.

Mr. Norris: These are the people who will get their objections in early.

Ms O'Meara: That is exactly what will happen. The Minister spoke about individual rights versus the common good. Is the common good served by limiting the possibility of third party appeals to a small group, in effect creating an elite of people who can appeal to An Bord Pleanála, i.e., those who have made a submission, observation or objection in the first instance? The unfairness this will generate is not in the common good - quite the opposite. I would refer to the very good example given by Senator Coogan of a person who lodges a planning application, goes around to his or her neighbour who may be directly affected and clears it with them. Everything is then fine, problems are sorted out at application level, something is included which has the agreement of the community but the conditions placed on the decision by the local authority include an issue with which the community has a problem. However, because these people have not, for a very good reason and in good faith, lodged an objection in the first instance, they are then precluded from making an objection to An Bord Pleanála. This cannot be right.

The Minister is correct that the vast majority of planning applications do not go to An Bord Pleanála. Smaller house type applications are generally passed by a local authority, so this issue does not arise. However, the Bill as currently drafted generates unfairness in the planning law. I agree with Senator Walsh that those directly affected should continue to retain the right of objection. I do not know how this can be drafted but it appears to me that the common good will not be served by the Bill as currently drafted. It would be better served by the inclusion of our amendment. I appeal to the Minister to take on board our views in this matter.

People will think long and hard about lodging an objection to a neighbour's development, for example, because that is not seen as being the done thing unless a person has a major problem with such a development. As the Minister is aware, the vast majority of people who are carrying out work to their homes will not try to injure their neighbours. Lodging an objection will send out a particular signal in that regard.

It appears that the Bill, as drafted, is attempting to break down the unwritten rule to which I refer and it is generating a greater possibility that people will object at the first instance which, in turn, will give them the right to appeal to An Bord Pleanála. As an example, let us consider the case of a hotel which is doing quite well and the owners decide to add an extension. One or two people might feel somewhat put out by that prospect but they might wait to see what conditions the local authority, which employs professional planners, attaches to the development. Those people would still retain the right to appeal to An Bord Pleanála and they would decide not to object at first instance because they would place their trust in the planners.

Objections of that nature tend to send out a signal that people oppose development and the expansion of the tourism industry. The same people might be concerned about the effects a development might have on the local natural and built environments but they usually decide to leave it to the planning authority to make the decision on their behalf. In many ways, that is what we want people to do. However, that practice will cease because people will automatically lodge objections at first instance in order to retain the right to object to the third party.

This is a very regressive move in terms of the existing planning laws and we will regret it in the long term. I appeal to the Minister to take on board the arguments we have put forward. As already stated, there are backlogs in the system and a number of vexatious objections have been lodged and the larger issues of extortion and corruption are not and cannot be dealt with in the context of this section. Therefore, I appeal to the Minister not to create an unfair situation where, so to speak, there will be an objecting elite.

Mr. Dempsey: It is always difficult to reply to a debate when people keep shifting the goalposts. When we began our discussion on this section, Members condemned me for introducing the fee because it was going to prevent people from applying. Now, it appears I am being condemned because everyone-----

Ms O'Meara: I never mentioned the fee.

Mr. Dempsey: -----will lodge objections or make observations. I will not repeat what I said earlier because there has already been enough repetition in the debate. However, there are a number of points I wish to address.

With regard to a person who has not shown the slightest interest in making a submission or offering an observation to a local authority in respect of a planning permission which is going to affect them - they may wish to lodge an objection or merely offer their opinion - I do not believe we are doing anything wrong by saying they have no right to appeal to An Bord Pleanála if they fail to make such a submission or offer such an observation.

There was a classic example of this in west Cork where an application for planning permission for a multi-channel television mast was in place for ten years. A new mast had to be erected and a new application for planning permission was lodged. Everyone in the locality was in favour of the erection of the mast and permission was granted by the local authority. However, a person from Mayo appealed the decision to An Bord Pleanála and it upheld that appeal. Is it correct that we should allow such behaviour to continue? I do not believe it should.

Despite what Senator O'Meara stated, in my view people have the right to make submissions to their local authorities and I encourage them to do so. People are not obliged to write to their local authority and state that they object to the construction of an extension to a hotel. They can write to the authority and state that it has an application for planning permission before it in respect of a hotel beside which they live and that they want a number of points taken into consideration when it is making its decision. They should then make their case about problems caused by noise, car parking, etc. They will then have the right to appeal to An Bord Pleanála if their concerns are not met.

Everybody should be interested in what is going to be built next door to their home. I do not believe it is unreasonable, for a small administrative fee, they should make their views known, object or make a submission if they wish to do so or even write a letter in support of a development. Rather than restricting people's democratic rights, we may encourage them to become more interested and take more responsibility for what is happening in their area. At present, everybody expects someone else, usually their local public representative, to act and speak on their behalf while they hide in a corner and pretend they have no objections. There is a need for greater openness in this area.

With regard to professional objectors, section 123 probably deals more adequately with these people. The section provides that the board may dismiss an appeal if it is vexatious or if it is made with the intention of delaying development or extracting money. However, Senator Walsh made a valid point when he stated that many people are now in a position to cite an entire range of reasons an application for planning permission should not be granted. In my opinion, these individuals study previous applications for planning permission and put together reasonable objections on foot of what they learn. It is very difficult for the board to decipher whether their appeals are genuine.

I would be interested in seeing, first, the board dismissing an appeal on the basis that it was vexatious and, second, whether the courts upheld its decision. If An Bord Pleanála take such action at some stage, we will never discover what will happen.

We have had a long discussion on these amendments and I gave an indication to Senator Coogan that we will continue to consider the situation to which he referred where decisions made by local authorities may alter applications for planning permission in some way and adversely affect someone. Other than that I am not prepared to accept any of the amendments.

An Leas-Chathaoirleach: No one wants to stifle the debate but we must be careful about repetition. The Chair wishes matters to proceed in a constructive manner.

Amendment, by leave, withdrawn.

Amendments Nos. 187 to 190, inclusive, not moved.

Dr. Henry: I move amendment No. 191:

In page 54, subsection (1)(d), line 51, to delete "four weeks" and substitute "one month".

I am not pressing the amendment but the Minister has obviously taken on board the point I am making, namely, that we should work in either weeks or months. The Minister has chosen to use weeks but it might have been better to use months. However, that is his prerogative. It might be better if people knew they had a calendar month to reply - for example, from 3 September to 3 October - rather than giving them four weeks which would mean that they would have to reply by the end of the month. It is better in one currency. I inform the Minister that a space rocket crashed into the surface of Mars recently because they were working with two different measurements.

An Leas-Chathaoirleach: I am sure the Minister will take note of that.

Dr. Henry: It is wise to use one measurement.

Amendment, by leave, withdrawn.

Mr. Norris: I move amendment No. 192:

In page 54, after line 52, to insert the following new paragraph:

"(e) while an appeal is awaiting determination by the Board an applicant shall not submit a further planning application to a local planning authority in the interest of a transparent and proper planning procedure.".

This is to prevent fusillades of planning applications, where one supersedes another and another and another and one never knows quite where one is. People are often caught unawares by this. If an appeal is being determined, they are not expecting that a subsequent application will be put in. It is a real sleight of hand. The quickness of the hand deceives the--

Dr. Henry: The mind, the eye.

Mr. Norris: Why did the Senator say "mind" in the first place?

Dr. Henry: I did not.

Mr. Norris: She did. Her objection is overruled and she will have to pay a fee.

This is fairly straightforward and I hope the Minister will agree it would give greater transparency and openness to the planning permission process if people were prevented from doing this. After all, if they are serious about the initial application, and it is being adjudged, why should they put in another?

Mr. Dempsey: As the Senator said, this amendment would prohibit a person from making a further application for development to a planning authority while the board was making its decision. There is evidence, anecdotal and otherwise, in at least two cases recently in a part of Dublin where some people attempted to avoid third party objections to their development by making a second and identical application while an appeal was before the board. This was what the Senator was talking about. In one of the cases, the decision was made by the local authority in favour the first time it was appealed. The second notice went up very quickly and the person did not notice that it was a new notice.

Mr. Norris: Exactly.

Mr. Dempsey: By the time they got the decision from the board, which was a refusal, the second planning application had been decided by the local authority.

Mr. Norris: Exactly.

Mr. Dempsey: I have great sympathy for people exercising their lawful rights who find out afterwards that effectively they had been tricked by a developer or by somebody building a house.

The amendment is not the solution because on occasion, people can quite lawfully have concurrent applications on the same site, for example, the phasing of developments. To prevent this could delay development without good reason. If we stated that no identical or even similar application should be made for the same site, it might be quite easy then for a person to alter something very slightly and make the minor changes to the application and get around that restriction.

We examined this and discussed it with officials. A better way to deal with the problem, which has occurred only very occasionally but maybe more often in the recent past than prior to that, is to ensure that site notices are sufficiently clear and contain enough information to let people know that a new application has been lodged.

Mr. Norris: Could I ask the Minister a question? I do not mean to interrupt rudely but it would help in teasing it out. Did we decide already that we were to colour code them?

Mr. Coogan: We did.

Mr. Dempsey: Yes.

Mr. Norris: That would be helpful.

Mr. Dempsey: Senator Coogan had an amendment down yesterday relating to this. We are examining the regulations as to how we could do this. Some of the ways would be to colour code them or change the sizes. We are discussing the different things that we can do with the site notices. Senator Walsh suggested, as have people outside the House, that when a planning application is lodged, everything should be standardised and the local authority should have these signs available for the site. They just fill in the details on receipt of the application and the planning reference number is put on them so that people have ease of access. We will examine all of those measures in the context of the regulations.

Mr. Coogan: Including penalties?

Mr. Dempsey: Including penalties, yes. Currently the major penalty if the site notices are not there is that the person's application is delayed but I am not sure whether there could be a penalty other than a delay for a lack of a site notice. The penalty at the moment is simply that that planning application is delayed if it is discovered that the site notice is not there.

Mr. Coogan: It goes back to them.

Mr. Dempsey: It goes back again to them. All these things are better dealt with by regulations because, as we all know, if this was made law somebody would find a way around it. Then it takes so long to change the law for something so relatively "minor". One would wait until the next planning Bill came up. It is better to have a regulation for it so that it can be changed. Senator Coogan suggested colour coding, which was mentioned by other Senators, or we could consider changing the size or the location on the site if that is feasible and still making it visible. We will examine all of those measures for the regulations.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Amendments Nos. 193 to 196, inclusive, are related and are to be discussed together by agreement.

Dr. Henry: I move amendment No. 193:

In page 55, subsection (2), lines 1 to 5 to delete paragraph (a).

It seems odd that in this paragraph the board should be in a position to impose a development even if it is in direct contravention of the regional planning decisions. We talked earlier about trying to make sure that local authorities were not interfered with in their decisions. Surely this is a huge interference with their decision if the board can just decide that such a development should go ahead and nothing can be done about it. I ask the Minister to think seriously about this permission to the board which is of enormous significance. I suggest that the amendment be accepted.

Mr. Norris: I have suggested amendment No. 196 which states:

In page 55, between lines 13 and 14, after "plan." to insert the following new paragraph:

"(c) The Board may only materially contravene a development plan, local area plan, an area of special amenity or a landscape conservation plan if three quarters of the members of the entire Board vote in favour of such a decision and the result of such a vote shall be recorded in the Board's decision and placed on the planning file which shall be accessible to the public within 3 working days of such a decision.".

This is the kind of thing we require the council to do. If it is fair for the council it should be fair for the board. After all, if the board really is going to make so serious a decision as to materially contravene a plan, presumably it is not much to expect them to turn up and vote on this. Are members of An Bord Pleanála paid?

Mr. Dempsey: Yes.

Dr. Henry: Yes.

Mr. Norris: If they are paid to turn up, they should turn up. They should vote and should be required to vote by a substantial majority, otherwise for what are they getting their money? Let us have them voting, please.

Mr. Coogan: I have done something very simple, which is to change two words. The consequence of those changes are dramatic, which I realise. I would not have done it unless I had the strong belief that what is happening here and what happened in the past is that An Bord Pleanála has become the planning authority and it does not have that right. A community makes a decision and meets local councillors who design the county development plan and filter its opinion through the SPCs. The Minister referred earlier to the community versus the individual but this involves the community versus a number of individuals. A development plan is put in place after months of work. Councillors spend many hours meeting community groups and individuals and take on board their comments and recommendations. There will be more of that in future.

Having made a decision, over which they have agonised for a long time, about what is best for their local authority area, An Bord Pleanála, at the stroke of a pen, can totally ignore the plan, disrupt it or throw it out. I am not averse to the concept of a majority decision by the board but it could make a decision against the development plan where its own inspector has reached a different decision - I will come back to this later. While the amendment involves two simple words, the effect should be dramatic. An Bord Pleanála should not be the final authority in regard to development plans. It is not its right and it does not come under its remit.

Ms O'Meara: I support Senator Coogan. Currently, the board has this power but it must be reviewed again and the opportunity should be taken in amendment No. 194 to essentially return the power to the architects of the development plan and the community, where it belongs. The origins and history of An Bord Pleanála need to examined. An independent board was set up for various reasons, which there is no point in rehearsing. The Minister will agree, in the context of the debate on area plans and development plans, etc., that times have changed. He has been involved in and influenced that change. That must be recognised and there is nothing more appalling than to come across a decision by An Bord Pleanála which totally, utterly and completely overturns the unanimously expressed wishes of a community. For example, two years ago in Nenagh, the entire urban district council voted unanimously on behalf of the community three times in favour of a development only for it to be overturned by the board. Its decision was absolutely unbelievable and, of course, nothing could be done about it. However, it completely overturned the expressed wishes of the community.

I agree with Senator Coogan that, as members of local authorities, we put a great deal of work into development plans. The Minister wants the entire community to be involved and this will happen even more in future but An Bord Pleanála's ability to overturn and materially contravene decisions must be examined. Serious consideration should be given to prioritising the development plan and reducing the power of the board to overturn decisions.

Mr. McDonagh: I strongly support the previous speakers. Similar to the other 29 members of Galway County Council I spend months on end attending meetings in regard to the county development plan and it is wrong and disappointing that at the end of the day An Bord Pleanála has a right to undo decisions made by us. It should respect the expertise of the architects of county development plans and it has taken away greatly from the work of local authority members. It is almost an insult to them. I sincerely hope the Minister will accept Senator Coogan's amendment.

Mr. Dempsey: I started out with the same views as Members in regard to An Bord Pleanála contravening development plans, but I listened to a great number of people during the consultation phases and read the submissions made on the Bill after the conference in Dublin. In ten years the amendment will be acceptable because development plans will not be allowed to expire as a result of the timetable that has been included in the legislation. There will always be a problem with development plans in that confusing and conflicting objectives are stated in them but that is not as serious a problem as plans expiring. It is important currently that the board should still retain the right in certain circumstances to contravene development plans because the plans in many cases are allowed to expire.

An Bord Pleanála is a national planning body and it can and should take a broader view on some occasions, which is not easy when it is involved in a local controversy. I have gone as far as I can in this regard because provision is made in the legislation for the board to explain why it has contravened development plans. In 1997, to put this in context, approximately 12 out of 4,500 decisions made by the board contravened development plans and in all cases the local authority had refused planning permission. Most of the decisions were non-controversial. The board does not use this power widely, but it should retain it.

Amendment No. 196 would only allow the board to contravene a development plan, a local area plan, an area of special amenity or landscape conservation area where three-quarters of the members vote in favour and a decision on the vote should be recorded. The board, since its inception in 1977, has often had to make decisions on complex and, indeed, controversial projects. That has always been done on the basis of a majority decision and there is no reason to change that. However, I am prepared to amend section 96 to require the provision of a record of the number of board members voting for and against all decisions and for it to be maintained. That will not just apply in cases of material contravention. It will add greater transparency to the process and should meet some concerns expressed by Senators.

Senator Norris inquired about the voting record of board members. An Bord Pleanála is one body which is not under-worked. It is under tremendous pressure. The quorum for the board is three so that any three members can make a decision on any project. Generally speaking, for the very large, controversial and complex projects practically the entire board will-----

Mr. Norris: Will the Minister remind me what is the number on the entire board?

Mr. Dempsey: I will have to remind myself - I think it is ten.

Mr. Norris: It is a small quorum, three out of ten.

Mr. Dempsey: Absolutely, but there were even more controversial decisions when Ministers made them and, thank God, it now lies with An Bord Pleánála.

Mr. Coogan: In regard to what the Minister said - that in ten years' time this matter might be resolved - we are legislating for the future so it is appropriate that we do it now rather than react in ten years' time. Under the provisions of the Bill, local authorities will now have to take into account what regional authorities development plans are there. That is one slight erosion of local authorities' rights. If the Bill goes through, they will also have to allow An Bord Pleánála to have the dominant role in planning matters because it can overrule decisions. Whether the development plan is two years out of date or in date, it does not matter, it can still overrule it. Not every development plan is out of date, although ours ran an extra year. We always try to get it done on time, and most local authorities do. I do not regard that as an excuse for allowing An Bord Pleánála to be the decision makers particularly when, as Senator Norris said, three members, as against a total community, can made the decision. That is not true democracy. I am afraid I will be pressing this issue.

Ms O'Meara: Given that the Minister has some sympathy with what is being said, will he bring forward an amendment to limit the circumstances in which the board can overturn the development plan, for example, in the event of it being out of date? If that was inserted by way of amendment it would have a short shelf life because once the Bill goes through the situation corrects itself. In the meantime an amendment, such as that suggested, would meet our concerns and, I think, the Minister's concerns, and would limit the powers of the board to a particular set of circumstances and achieve a considerable level of fairness which everybody would welcome.

Dr. Henry: I suggest the Minister include, before paragraph (b), the words "for ten years from the enactment of this legislation" and then we would all be happy.

Ms O'Meara: Less than ten years.

Dr. Henry: The Minister has said it will take ten years. In ten years it will not be needed.

Ms O'Meara: Or only in the event of the development plan being out of date.

Mr. Dempsey: Hopefully it will not be needed and most local authorities will move towards having an up to date development plan. I will have a look at what Senator O'Meara has said - that we should confine this to places where, perhaps, the development plan has not been renewed or is out of date and where there are conflicting or confusing provisions in the Bill. I will look at that to see whether it can be included. Senator Coogan said it was not democratic. We had the democratic system where the Minister, who was democratically elected and responsible to the people, made the final decision on appeal.

Mr. Coogan: Democratic with a small "d".

Mr. Dempsey: It does not matter. At that time the Minister was obliged, and was probably inundated with representations from all the democratically elected members of the local authority plus the Oireachtas Members, to make the final decision. We decided in our wisdom 20 years ago that this was a bad idea and that we needed an independent body to make a decision on the basis of independent and objective planning criteria. We cannot have it both ways and I am not attacking the Senator.

Mr. Coogan: I do not disagree with the concept of the board.

Mr. Dempsey: It is typical of Irish people that we all look for this independence, to move the decision making process away from politicians and not allow them have anything to do with it. That is fine until the decision goes against us and then everyone is up in arms asking where are the democratically elected representatives. This is an Irish solution to an Irish problem.

An Leas-Chathaoirleach: Is amendment No. 193 being pressed?

Dr. Henry: In view of what the Minister has said - that he will look at this area again - I am not pressing it. We will submit an amendment on Report Stage if there is no satisfaction.

Amendment, by leave, withdrawn.

Mr. Coogan: I move amendment No. 194:

In page 55, subsection (2)(a), line 2, to delete "even" and substitute "except".

Question put: "That the word proposed to be deleted stand."

The Committee divided: Tá, 24; Níl, 18.

Bohan, Eddie.

Bonner, Enda.

Callanan, Peter.

Cregan, John.

Dardis, John.

Farrell, Willie.

Finneran, Michael.

Fitzgerald, Liam.

Fitzgerald, Tom.

Fitzpatrick, Dermot.

Gibbons, Jim.

Glynn, Camillus.

Kett, Tony.

Kiely, Rory.

Lanigan, Mick.

Leonard, Ann.

Lydon, Don.

Mooney, Paschal.

Moylan, Pat.

O'Brien, Francis.

Ó Murchú, Labhrás.

Ormonde, Ann.

Quill, Máirín.

Walsh, Jim.

Caffrey, Ernie.

Coghlan, Paul.

Connor, John.

Coogan, Fintan.

Cosgrave, Liam T.

Costello, Joe.

Doyle, Joe.

Hayes, Tom.

Henry, Mary.

Jackman, Mary.

Manning, Maurice.

McDonagh, Jarlath.

Norris, David.

O'Dowd, Fergus.

Ridge, Thérèse.

Ross, Shane.

Ryan, Brendan.

Taylor-Quinn, Madeleine.

Question declared carried.

Amendment declared lost.

Amendments Nos. 195 and 196 not moved.

Minister for the Environment and Local Government (Mr. Dempsey): I gave a fairly full explanation why I made the decision on this. Senator Norris said he was surprised I said I did not believe schools and hospitals are needed. He may have only heard the latter part of the remark. I stated quite clearly that they are needed and this need will arise as a result of new housing developments. However, they are not needed to allow developments to proceed - infrastructure is needed to allow developments to proceed. Of course they are desirable-----

Mr. Norris: It is a shade of meaning.

Mr. Dempsey: Perhaps. I reiterate the point as regards what Senator Henry said - if we are to include all the other necessary infrastructure mentioned such as schools, health centres, some would say churches, etc., housing developments would be extremely expensive and out of everyone's reach. This Bill is ensuring for the first time that infrastructure to be provided by the local authority will be allowed for by developers in proportion to the amount they need for new development. We cannot go further than that.

Amendment, by leave, withdrawn.

An Cathaoirleach: Amendment No. 227 is in the name of Senator Norris. Amendments Nos. 231 and 232 are cognate and amendment No. 235 is related. All may be discussed together. Is that agreed? Agreed.

Mr. Norris: I move amendment No. 227:

In page 68, subsection (17)(b), line 35, after "provision" to insert "and use".

This amendment proposes to include the words "and use" and refers to continuous use. It deals with sustainability, which we have discussed throughout the Bill, and maintenance. It is a reasonable amendment at this point.

Mr. Dempsey: As I said before, I do not think any Planning Act is the place to introduce the concept of user charges for any service, which is what these amendments would entail. Therefore, I cannot accept these amendments.

Amendment, by leave, withdrawn.

Amendment Nos. 228 and 229 not moved.

Government amendment No. 230:

In page 68, subsection (17)(b), line 36, after "facilities" to insert "and landscaping works".

Mr. Dempsey: This amendment permits local authorities to charge development contributions for landscaping works which they carry out as part of the provision of public facilities like open spaces and recreational areas. While landscaping may have been covered by the power to charge development contributions for ancillary works under paragraph (e), I felt it was important to clarify it so there was no doubt.

Mr. Norris: I am glad this amendment is included. It is in the spirit of some of the amendments put down today. It is important to humanise what could otherwise be quite impersonal areas. Some degree of landscaping makes these developments far more attractive. It is a fairly recent development in Irish life, particularly in business parks, housing areas, etc. It is important and given our bullish economy we should be able to afford these human notes of graciousness and civilisation. I compliment the Minister on including it in the Bill.

Amendment agreed to.

Amendments Nos. 231 to 235, inclusive, not moved.

Question proposed: "That section 47, as amended, stand part of the Bill."

Mr. Coogan: The Minister spoke about contributions for infrastructure. It is wrong that a local authority will demand a contribution, for example, for parking because that parking may not be provided inside the development but could be a quarter of a mile away. I have discussed this with a number of people who have carried out developments, made a contribution and received no benefit. It particularly arises in relation to parking. Will the Minister consider linking contributions to the development? It is a straightforward matter and I am sure the Minister has come across it. It recently happened in Galway in a development where a substantial contribution had to be made for parking outside the building which was of no benefit to the person involved. No other infrastructure was involved and the nearest car parking provided was in the region of 500 yards away.

Mr. Dempsey: I understand the point the Senator is making. The old system of development contributions which operated in that way is being abolished by this Bill. All contributions will be charged in accordance with the scheme in respect of infrastructure provision generally which will include car parking. Even under the old system if people provided their own parking spaces - it was outlined how much it cost per square foot for different types of businesses - they were exempt from the charge. The new system will allow for transparency as regards charges.

Mr. Coogan: I suggested there should be a relationship between the charges and the benefit which would accrue, particularly in the case of parking. Where a developer can provide car parking, it is in a green area. However, in the middle of the city, it is virtually impossible to get parking beside a development. Is there a way of linking the contribution to the benefit? If there is not, I will bow to the Minister's knowledge. The abuse I have received about these contributions being charged in different parts of town makes raising it during this debate worthwhile.

Mr. Dempsey: There is no way that it could be reasonably tied down. It is similar to a person paying tax and not benefiting from it.

Mr. Coogan: There is no policy in these Houses regarding tax distinction.

Mr. Dempsey: There is no way that it could be tied directly to parking. It can be tied down in relation to some other types of infrastructure, but not regarding car parking. However, the system will be more transparent and if money is made available, it will be at a rate decided by the local authority. It will be applied for the purpose for which it is collected.

Question put and agreed to.

SECTION 48.

Government amendment No. 236:

In page 69, subsection (4)(a), lines 25 to 36, to delete subparagraphs (i) and (ii) and substitute the following new subparagraphs:

"(i) Subject to subparagraph (iii), application for leave to apply for judicial

review under the Order in respect of a decision referred to in paragraph (a)(i) or (b)(i) of subsection (2), shall be made within the period of 8 weeks commencing on the date of the decision of the planning authority or the Board, as the case may be.

(ii) Subject to subparagraph (iii), application for leave to apply for judicial

review under the Order in respect of a decision referred to in paragraph (a)(i) or (b)(ii) or (iii) of subsection (2), shall be made within the period of 8 weeks commencing on the date on which notice of the decision was first published.".

Mr. Dempsey: The amendment is a minor adjustment to the time period within which an application may be made for judicial review of decisions of the planning authority and the board. The Bill currently provides that an application for judicial review may be made within a period of eight weeks from the date of the decision of a planning authority on a planning application. For the other matters covered by the section, which are decisions by a local authority on its own development, decisions by the board on appeals or referrals on local authority owned development which is subject to EIA and on acquisitions of land by local authorities, the time period of eight weeks runs from the date of publication of the decision.

The amendment makes a simple change to that by providing that the eight week period will run from the date the board makes a decision on any appeal or referral. This will then be the same as for decisions of the planning authority on planning applications. The board notifies persons within three days of its decision so that the date of the decision is an appropriate and certain one on which to base the period.

The second paragraph provides that the eight week period will run from the date that the notice is published of decisions of the authority on its own development and of decisions of the board on local authority development which requires an EIA and decisions by the board on compulsory purchases by the local authority. This will reflect the fact that the decisions on compulsory purchases, for example, are normally notified by newspaper notice. It is, therefore, a more appropriate starting point for the eight week period than the actual date of decision.

Mr. Coogan: The amendment makes sense and I compliment the Minister on introducing it.

Amendment agreed to.

Acting Chairman (Mr. Dardis): Amendments Nos. 237 to 239, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Mr. Norris: I move amendment No. 237:

In page 70, subsection (4)(b), line 18, to delete "substantial" and substitute "sufficient".

The amendments are closely related. The idea behind them is that the word "substantial" could be taken to mean exclusively property. The word "sufficient" would mean that issues which may involve property but which are not necessarily regarded as relating to finance or property would be addressed.

Mr. Dempsey: The amendments seek to amend the requirement in the Bill that a person must have a substantial interest in a matter to apply for judicial review. Amendment No. 237 would replace a "substantial" interest with a "sufficient" interest while amendment No. 238 would delete the statutory requirement totally. The amendments would have the same effect as Order 84 of the Rules of the Superior Courts under which an application must be made which already requires a person to have a sufficient interest. Amendment No. 239 would clarify that the substantial interest would not need to be financial or property.

The phrase "substantial interest" is wider than a mere property involvement. A substantial interest could mean that a person could personally be affected by a development or even that the person has taken an active part in the decision making process from the early stages and not lodged an objection only at the last minute. While I agree with the thrust of this amendment, any amendment to the judicial review provisions must be carefully considered. I must consult the Attorney General's office on any draft wording. I ask the Senator to withdraw his amendments so that the matter can be reconsidered on Report Stage in terms of whether it can be further clarified.

Mr. Norris: I am happy to withdraw them and I am grateful for the Minister's response. However, in common parlance and in the literature of this century, if you look at Soames Forsyth in Galsworthy's novel, A Man of Substance, it meant property and nothing else. This is the point of the amendments but I am grateful that the Minister is showing sensitivity in this area. I would be grateful if he can return to it on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 238 and 239 not moved.

Government amendment No. 240:

In page 70, subsection (4)(c), between lines 36 and 37, to insert the following new paragraph:

"(d) Where an application is made for judicial review under this section in respect of part only of a decision of-

(i) a planning authority referred to in paragraph (a)(ii) of subsection

(2), or

(ii) a decision of the Board referred to in paragraph (b)(ii) or (iii) of subsection (2),

the High Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring to be invalid or quashing the remainder of the decision or part of a decision, and if the Court does so, it may make any consequential amendments to the remainder of the decision or part of a decision that it considers appropriate.".

Mr. Dempsey: Section 55(a)(v) of the Roads Act allows for judicial review of part of a road scheme order only. It is often appropriate for a court to order a change in respect of one element of a major road scheme in relation to one property, for example, while the rest of the road scheme can proceed. The amendment inserts a similar provision for judicial review of some decisions under this section, including decisions of the authority on its own development and decisions of the board on local authority development which requires an EIA and decisions of the board on compulsory purchases by the local authority.

It is not proposed, however, to extend this change to decisions by the authority or the board on planning applications or referrals. Planning applications usually relate to a specific plot of land and are not as amenable to being broken up into individual issues.

Amendment agreed to.

Question proposed: "That section 48, as amended, stand part of the Bill."

Mr. J. Doyle: It may not be relevant to this section but I read recently that the Attorney General intended to set up a special division of the High Court to deal with judicial reviews in order to expedite them. I would welcome such a move and perhaps the Minister could tell the House what progress has been made in that area.

Mr. Dempsey: The matter is being considered by the infrastructural sub-committee of the Cabinet. No final decision has been made and it may not specifically involve a special division. A number of options are being considered, including judges with specialist knowledge. The matter is being considered in an effort to speed up the process.

Mr. J. Doyle: I thank the Minister.