Thursday, 15 March 1934
Dáil Éireann Debate
Mr. O'Kelly: I understand that you have ruled out two amendments by Deputy Dillon, and unless the Bill were recommitted, it would not be  possible to have these amendments discussed. There is one part of amendment No. (8) that would not be in order in any case—sub-section (2) of that amendment—or so I gather from your ruling.
Mr. Dillon: I should be glad to do that, but naturally, the discussion on the amendment would then become somewhat theoretical, because it would be directed particularly to inducing the Minister to adopt the amendment in the other House as a Government amendment. The amendment would not stand without sub-section (2), but I am quite prepared to adopt that course.
In page 5, Section 3, to delete all from the word “for”, line 25, to the end of the section and substitute the words “made in accordance with this Act for the general purpose of securing the orderly and progressive development of a particular area, whether urban or rural, in the best interests of the community and of preserving, improving, and extending the amenities of such area.”
This arises out of the last amendment. Under the sub-section, as it stands, a planning authority would have to ascertain whether there was a person over 16 years of age on the land or premises on whom notice could be served before the alternative method contemplated in the sub-section, the affixing of a notice on the premises, could be adopted.
(1) Whenever a planning authority or a responsible authority is required by or under this Act or a planning scheme to serve notices on the owners of property, such authority may require the inspector of taxes in whose district such property is situate to furnish to such authority a list of the names and addresses of all owners and occupiers of property shown in the assessments to income tax under Schedule A of the Income Tax Act, 1918 (as amended by subsequent enactments), last made before a specified date in a specified area which is within the district of such inspector and within the functional area of such authority.
(2) An inspector of taxes may charge for any list of names and addresses furnished by him in pursuance of this section such fee, not exceeding five shillings for every hundred entries separately numbered, as the Revenue Commissioners shall direct, and the payment of  such fee by the planning authority or responsible authority requiring such list shall be a condition precedent to the furnishing of such list.”
This new section is designed to facilitate a planning authority or a responsible authority in getting particulars, in addition to those available from rate books, from the owners or occupiers of property in an area in which a planning scheme is proposed or in which a planning scheme may be in force.
Any statutory undertaker may agree to pay and may pay to a planning authority all or any part of the expenses incurred by such planning authority in or in relation to the making of a planning scheme or to a responsible authority all or any part of the expenses incurred by such responsible authority in or in relation to the execution of a planning scheme.
Section 12 of the Bill which was passed on Committee Stage covers the application of the provisions of a planning scheme to property belonging to a statutory undertaking. Where a statutory undertaker desires to cooperate with a planning authority, with the object of having land reserved for the purpose of that undertaker or that responsible authority in relation to any purpose connected with the undertaking, the clause now proposed to be included will enable a statutory undertaker, if he so desires, to make a contribution to the expenses incurred by the planning authority or by the responsible authority, as the case may be.
(1) It shall be lawful for the Minister by Order to establish consultative councils for giving, in the manner prescribed by the Order, advice and assistance to the Minister in the exercise of his powers under this Act.
(2) Payments may be made by the Minister out of moneys voted by the Oireachtas to members of consultative councils and committees thereof, to such extent as may be sanctioned by the Minister for Finance, in respect of the following matters, that is to say:—
(3) Every consultative council established under this section shall consist of persons having practical experience or special knowledge of the matters in respect of which they are to give advice or assistance.
Mr. Dillon: This amendment of mine is of a purely permissive character. Its object is to give the Minister power to summon together small bodies of experts to advise him in special circumstances. The original purpose of the amendment, of course, was to give him statutory authority to defray the expenses of these gentlemen, and that is really the important part of it. The case I propose to make to the Minister is that in another place the Government should introduce an amendment along these lines giving the Minister  power, where he is dealing with such matters as arise under the first part of the Bill, to summon into council a body of experts whose opinion he could take on the matters upon which he was called upon to pass judgment. There would be no obligation on the Minister to call them in on every occasion and it will be a matter purely in his discretion as to whether the problem before him is of such a character that he would want independent advice from architects or engineers or even artists.
Sub-section (3) provides that the persons constituting the consultative council should be persons having practical experience or special knowledge in the matters upon which they were called to advise or to assist. It would be necessary, of course, for the Minister to have statutory authority to defray the expenses of these gentlemen if he required their services. It is highly desirable in experimental legislation of this kind that every assistance that the Minister could possibly want should be made available to him, without its being made incumbent upon him to call in that assistance if he did not want it. I am quite prepared to withdraw the amendment entirely if the Minister approves its general principle and indicates his intention to introduce a Government amendment elsewhere to implement the purposes of the amendment that stands in my name.
Mr. O'Kelly: I have no rooted objection in principle to the amendment proposed by Deputy Dillon, but I am wondering where we will get the personnel for such a consultative committee. This Town Planning Bill has been before the House and before the public for a long time and the small amount of public interest that has been taken in the matter is really surprising to me. Outside the House, I have seen very little expression of interest and in the House itself not very considerable interest evoked either.
Mr. O'Kelly: I have not seen much sign of any deep interest, especially from the type of people from whom one would expect interest in a matter of this kind, the type of qualified people who, one would think, would immediately make themselves heard and felt in such a matter. The number of suggestions we have got from architects, engineers and artists, that would help us to make this Bill all that it might be as an instrument of public service, has been a minimum. I am wondering who are the experts that we would get on town planning. We could get expert advice from architects and engineers on matters appertaining to their profession and possibly also from artists, but I do not know if it would not be better to allow the local authority power to call in a consultative council when making their own scheme. As the Deputy said, his suggestion, of course, is that the authority given be a permissive authority for the setting up of such a body. If there are any strong arguments to be put up in its favour, I should like to hear them. I have not heard any so far and I am afraid that the people who would take a keen interest in this matter and who could be regarded as experts in town planning are very few. Of course, it is a very new subject here. It has never been tried, practically speaking. There has never been authority to try it on a large scale, although there have been some small-scale schemes undertaken by urban councils. In time, unquestionably, as town planning develops, I presume we will be able to develop a type of people here who will have expert knowledge on the subject.
If there is any Deputy, besides Deputy Dillon, who feels strongly on this matter and who thinks that a considerable amount of good might be done by having such a body, I should like to hear their views. I should like to hear further views on the matter from the House. As I have already said, I am sure the House knows that this measure is not being discussed by anybody in the House in any Party sense. It is here for anybody to put forward suggestions on it and we would be glad to have  suggestions. I am very glad that Deputy Dillon made his suggestions, but I should like to hear the views of anybody else who may have views on the matter. With regard to the second part of Deputy Dillon's suggestion, I have not had time to have that matter gone into. I do not know what the cost would be, and, of course, it would have to be put up to the Department of Finance who, as everybody knows, are rather difficult people to deal with.
Mr. Dillon: Perhaps, as I am responsible for this amendment, I should clarify the position by explaining the reason I bring it forward, in answer to the Minister's inquiry. My principal reason is that I was asked to bring it forward by one of the few men in this country who is an enthusiast for town planning. I do not pretend to be an expert on the matter and I should hesitate to put such an amendment on the Order Paper if it were not of a permissive character; but I felt that, when he believed it would be of assistance to the Minister, no harm possibly could be done by inserting it in the Bill, because the Minister would not use it unless it was useful to him and no harm or damage would be done by having it there if, in the working of the Act in some particular scheme, the Minister found it to be necessary and desirable. The Minister says that he is in some little difficulty to see what assistance a consultative council would be in matters of town planning. Of course, the Minister and the local authorities have very wide powers under this Bill. They can restrict the type of materials to be used. They can take into consideration local amenities, landscapes, archæological considerations, and a wide variety of matters of that kind. Now, one can well imagine that a town-planning scheme might be put up to the Minister which would involve the obliteration of some old landmark or might seriously interfere with a well-known view, or there might be engineering difficulties involved, and the Minister would find himself rather at a loss as to whether he ought to approve that scheme or not. It is quite true that he could go to some of his old personal friends who are  distinguished in archæology, engineering or architecture and consult them unofficially. But he might have a certain delicacy in asking these gentlemen to give their expert advice when it was part of their profession to furnish advice of that character.
If the Minister had the benefit of this amendment and a proposal were put up to him which, in the ordinary course of erudition he knew interfered with some archæological treasure of the neighbourhood, he could very properly set up a consultative council and invite well-known archæological experts to give advice as to whether the proposed scheme should be allowed to go forward in its present form. For instance, if there were a scheme to build houses on the Vico Road, the Minister would feel, I am sure, as I certainly would feel, that it would be a very great misfortune to do so. At the same time, he might like to have his opinion supported by an influential and expert body of disinterested men examining the scheme from the general point of view of local amenities. The Minister could then say that these gentlemen felt, on the ground of the destruction that would be caused to the general landscape, that the scheme ought not to be permitted, and that, as he concurred with that view himself and was supported by them in it, he felt that he must refuse to give his consent to that proposal.
I suggest that it would be a valuable help to the Minister in doing things of that kind which might be unpopular locally. He could say: “I have sought the best possible advice, and finding that that advice concurs with my own view on the matter, I am now prepared to stand by it.” I can even visualise the Minister having some little clash in æsthetics or things of that kind with Deputy Tom Kelly. Deputy Kelly might make a very trenchant criticism of the Minister's æsthetic point of view. In a case of that kind, it would greatly assist the Minister if he could say: “Very well, I take one view; Deputy Tom Kelly takes another. I will set up a consultative council and I am prepared to be bound by the views of a number of reasonable men in this matter, and will not allow  myself to be swayed by my own prejudices.” That would be the purpose of these consultative councils. I think they are worth while. They are not obligatory. They need not be invoked except in the difficulties I have outlined, and they will involve no expense except in the sense I have referred to and, in the circumstances, any expenses incurred will be well spent. I can tell the Minister, for his information, that one of the greatest enthusiasts in town planning drew up this amendment, and I shall be glad to submit the gentleman's name to the Minister afterwards, if he wishes to have it.
Mr. Good: My only objection to the amendment is that it is permissive, and the reason I object to it in that form is that it will remain in the Bill and never be put into operation. Without being at all disrespectful, I think that anybody who knows the views of these local authorities will be prepared to say that they are very conservative. They are accustomed, or have been accustomed to reigning in a sphere where their opinion has always been accepted. We are dealing here with a totally new matter. As Deputy Dillon has pointed out, the powers that are given to the town-planning authority in Section 41—and the town-planning authority, after all, is the local authority—are powers not possessed before. Design, colour, and materials of the structure are all within their authority. These are all big questions. Design also covers the size of the building—the length, the frontage and the height of the building. These are all new questions.
I have the greatest regard for the decisions of local authorities and for the justice they usually show at arriving at these decisions, but these are all new matters in which there may be grave differences of opinion. It may be of some importance to a city that these buildings should be erected. I can foresee a case in which a local authority will say that they want the building of such a height; that the design must be of such-and-such a character and that it must be built of such-and-such materials and  the builder saying, “I cannot afford it” and there is an end of it. That would be an unfortunate impasse. I think if Deputy Dillon's consultative council could be called in on such matters they might find a way out because once the local authority gives a decision it adheres to it and there is an end to it. You have either to adopt it or give up the idea of building. I think in that case, as well as in other cases, it would be well to have this consultative council. As I said, the only thing I am afraid of is that in its present form it will not be made use of.
General Mulcahy: I realise that very often it is helpful to the imagination to be relieved of responsibility. A person who has not the responsibility for carrying out a thing very often sees aspects of it which the person with responsibility will not see. Without prejudice to any consideration that the Minister will give to this question of a consultative council as between this and the Bill passing through the Seanad, I should like to say that there are certain aspects of the matter in which I sympathise with him. Under this Bill the local authority concerned will have power to pay for the making of the plans and such advice and counsel as will be necessary in the making of the plans will be paid for.
Until a certain distance has been travelled and some samples of plans have been made, I personally would sooner see the experts or technicians who are called in to advise local authorities left to their own resources in the carrying out of the plans so that definite and clearly-made plans prepared by somebody who has authority and responsibility in the matter will appear on the scene. Any plans that will be put up under the Bill will have to run the gauntlet not only of the local authority itself, but of a public inquiry, and there will be very little chance of any damage of any kind being done that will not be thoroughly reviewed and criticised beforehand. Until some work has been done under the Bill, I feel with the Minister that he would not know what exactly to get the consultative body to  do, and the local authority can get all the consultation that it wants under the powers in the Bill for paying and having plans made.
I can quite sympathise with the Minister's feeling that beyond what assistance he has got in the Department and from officers of local bodies, municipal engineers or even county surveyors, very great public interest in the matter of town planning has not been taken. There are a number of individuals who have been very helpful in suggestions and very sympathetic to the measure, but the main work in examining the whole position for the preparation of this Bill and in considering what is the best machinery to put together for securing that town planning will be properly carried out has been done by officials, technical and otherwise, of the Department itself and by certain officers of the local bodies. The Minister, I feel, has in his own experts, both in the Department and in the engineering and other officers of local bodies, the fabric of a personnel that is much more closely concerned with the things that this Bill will be called upon to deal with than any other body in the country. Any other persons outside that fabric of personnel are persons of considerable standing whose names are very well known and who will either be called in by the Department in the carrying out of definite pieces of work or will be called in by a local authority. I want to say that, without prejudice to the putting in of an amendment on anything like these lines by the Minister, I feel that, even if he had this power, for a considerable time he would depend upon the technical people in his own Department and the engineering and other officers attached to local authorities to help him in the matter. I think he would be very well advised to do that, particularly when we consider the public review and criticism that is arranged for in connection with every scheme that will be planned under this Bill.
Mr. Dillon: I hope the Minister is edified by the evidence of the absolute absence of Party solidarity in dealing with the amendment. Deputy Mulcahy, in rather arguing against the  amendment, said that after all the local authorities will have called in experts and that the plan will be very fully canvassed before it goes to the council. That is not an argument for providing the Minister with special facilities for consultation. That is an argument for not submitting the plan to the Minister at all. It will be canvassed and examined and looked over by experts but, after all that, we have by this statute provided that it must go to the Minister and that he must approve of it. Suppose the Minister gets a plan to build a beautiful neo-Tudor bungalow on the slopes of Tara Hill, with nice Tara brooches inserted over the door, a greyhound on each chimney-pot and round towers on the four corners of the house, there may be artistic experts who will advise the Meath County Council that that is a very desirable tribute to the memory of St. Patrick and the ancient Kings of Ireland. There may be public-spirited men who feel that that delicate tribute to the glorious memories of the past should be paid. I submit, having made that reductio ad absurdum, that it will be of assistance to the Minister to say, “While at first glance that seemed to me a little excessive, I have submitted the matter to the consultative body and, rightly or wrongly, they unanimously agree with me that you are going a little too far in the matter of exterior decoration and, therefore, I suggest that you bring this back to your experts and have them examine it again.” Suppose the Minister says, “In my opinion, this is going a little too far and you ought to consider it again,” the answer will be, “Have we not had the experts on it; has not everybody examined it? We had the grandest experts in County Meath looking at this.”
The Minister finds himself in the position of setting his personal judgment against what the local authorities choose to describe as experts. What I want the Minister to be able to do, not necessarily in every case, but when he deems desirable in the public interest, is to call in a body of experts, a small body. Then the Minister will have a representative  body of experts to support him in his view that the scheme submitted to him really requires amendment.
My amendment is purely permissive. It is purely designed to deal with cases of that kind where the Minister would be in a difficulty as to amending or vetoing a town planning scheme on his own. The amendment is purely to meet the situation that Deputy General Mulcahy advances, where you have had experts examining the scheme, and where, despite their examination, the Minister thinks the scheme they have submitted to him is unsuitable. I want the Minister to be able to strengthen his hand by a consultative council and be in a position to say: “No, that scheme must be altered; I am not acting on my own judgment; my opinion is arrived at not after consultation with civil servants, but after consultation with men, distinguished in landscape effects, artistic matters, historical knowledge, and archæology;” as the case may be.
Mr. O'Kelly: As I said earlier, I do not know where we could find any of these experts who will not, as Deputy Mulcahy has already stated, have been consulted by the local authority before the scheme is put up to the Minister. A local authority, if it is carrying out a town planning scheme, will seek to get the best advice it can from the available experts in its area or outside its area. The best experts in Dublin would be invited, even by Cork, if Cork were carrying through a very large housing or planning scheme. I am really not convinced of the necessity of asking for power of the kind that Deputy Dillon is desirous of our possessing. We have had even in the “bureaucratic” Civil Service men of this kind, men with training in archæology, men with historical knowledge and artistic experience. I think even inside the Civil Service you would get —and possibly inside the Local Government Department itself—as good advice on these matters as could be got from the experts who give their whole time to this matter outside. Such advice is also available to the local authority. I must say I am not  convinced that the amendment is desirable, but I am quite prepared to reconsider the matter and discuss it again with the men who are responsible for this Bill, the technical and other advisers of my Department. I know that there are some of them who are inclined to adopt Deputy Dillon's suggestion. If I am satisfied that it is necessary to have this power, I am prepared to adopt the amendment.
Mr. O'Kelly: The points that Deputy Good raises on this amendment would not arise under this section. They will arise later under a different section. But where there is a decision with regard to the size and the colour and matters of that kind they are not in the Bill and they need not be discussed now.
This sub-section was introduced on Committee Stage. I explained then the Minister's power to revoke a resolution where there is a planning scheme already in force. This amendment will make the matter clearer.
In page 15, Section 27 (1), line 43, after the word “road” to add the words “or is inserted in such planning scheme for the purpose of making effective any provision so relating, limiting or prescribing as aforesaid.”
In page 15, Section 27 (2), to insert  the words “or other structure” after the word “building” where-ever that word occurs in lines 55, 57, 61 and 62 in that page, and in lines 5, 6, 7, 8 and 9 in page 16.
In page 16, Section 27 (3), to delete all from the beginning of the sub-section to the word “unless”, line 12, and substitute the words “Every dispute and question whether a new building or other structure substantially replaces within the meaning of this section a demolished or destroyed building or other structure shall be determined by the Minister, but the Minister shall not so determine that a new building substantially replaces a demolished or destroyed building unless he is satisfied that”.
(4) The Minister shall be entitled to appear, be heard, and adduce evidence at the hearing of an application under this section, and whenever the Minister so appears on any such application the costs and expenses incurred by him of and incidental to such application shall, when taxed and ascertained, be paid by the planning authority by whom the planning scheme which is the subject of such application was made, save if and in so far as such costs and expenses are ordered by the High Court to be paid by and are recovered from any other person.
This sub-section is to enable the Minister to appear, be heard and adduce evidence at the hearing of an application under this section. This power is necessary lest the planning authorities might allow the case to go by default. The amount of the expenditure incurred by the Minister is to be recoverable from the planning authorities, subject to any relief by the High Court.
(6) The making of an application under sub-section (1) of this section and also the consideration of and dealing with an application under the said sub-section (1) shall in the case of the County Borough of Dublin, of the Borough of Dun Laoghaire, and of the County Borough of Cork, be reserved functions.
This is to make the planning scheme a reserved function in the case of the County Borough of Dublin, the Borough of Dun Laoghaire and the County Borough of Cork. The matter is dealt with under amendment No. 22 also, but this amendment makes it clearer.
(4) The institution of an appeal to the Minister under this section and also the making of a revoking or amending planning scheme in pursuance of this section shall, in the case of the County Borough of Dublin, of the Borough of Dun Laoghaire, and of the County Borough of Cork, be reserved functions.
A planning scheme shall not contain any provision which restricts, prejudices, or affects the powers or duties of the Minister for Finance, the Commissioners of Public Works in Ireland, or any local authority under the National Monuments Act, 1930 (No. 2 of 1930), in relation to national monuments as defined by that Act or any particular such monument.
Part III of the Second Schedule, which was amended in Committee, contains provisions dealing with the preservation of structures and objects of artistic, architectural and archælogical interest. It is now necessary to secure that town planning schemes shall not be in conflict with the National Monuments Act.
Mr. O'Kelly: I do not know that it is clear that they could not acquire land on which a monument stands, but they certainly will not be free to interfere with a national monument in any way. We are taking power to see that national monuments, in so far as is necessary under this and the National Monuments Act, will be preserved and that rights and everything else will be absolutely safeguarded.
Mr. Dillon: This is the very kind of thing I had in mind in connection with the consultative council proviso. You have, let us say, the Castle of Ballymote or the Castle of the O'Garas. Someone comes along and makes up his mind that a town planning scheme for Ballymote or for the town adjoining some national monument should comprise a row of cottages or something of the sort along the gable wall of the castle. I am particularly  anxious that no power should be given to a local authority, in its capacity as a town planning authority, compusorily to acquire any land which would infringe the integrity of the national monument. If my memory serves me, every town planning scheme has to be submitted to the Minister for approval, so that he could reject any scheme which had that idea in mind. I think, probably, that is a sufficient safeguard.
This deals with the question raised by Deputy Good where you have very wide powers exercised by the planning authority as to fabric, colour, design, materials of structures, and you have provision made for an appeal under Section 41 (1). Any person aggrieved by an order made regulating the design, colour, or materials of structures “may appeal from such decision to the justice of the District Court having jurisdiction in the district.... and on such appeal such justice may, as he shall think proper, affirm, vary, reverse, or annul such decision.” Sub-section (2) provides for a planning scheme which contains any such provision as is mentioned in the preceding sub-section and it “may contain a provision that the appeal under that sub-section shall lie to a special tribunal” in lieu of the district justice.
My proposal is that where such a provision is contained the appeal shall lie to a special tribunal consisting of persons with special knowledge or practical experience. That seems to be a modest proposal in order to secure that the tribunal which will be set up to take the place of the justice of the District Court should be a competent tribunal. It is true that even where you have a tribunal substituted for the district justice there will lie an appeal from the tribunal to the judge of the Circuit Court. Of course the less litigation that is created by  a statute the better the statute is, and the greater confidence you can create in the minds of parties going before a tribunal the less likelihood there is of an appeal from its decision. Therefore, if we have a proviso such as I suggest in amendment No. 25 the likelihood of appeals will be greatly reduced.
Whenever an appeal shall lie either under sub-section (1) of this section to a justice of the District Court or under sub-section (2) of this section to a judge of the Circuit Court the said justice or judge shall have power before making his decision to consult a qualified assessor.
On the Second Reading I pointed out to the Minister that where an appeal lay to the judge of the Circuit Court on a highly technical question, such as any of those referred to in the first clause of the section, that you are putting him in an exceedingly difficult position. It is not a matter, possibly, upon which he is qualified to give an opinion. In such cases I suggest he should have the right to call in an assessor who would guide him in any such decision. As a precedent for that, under the old régime we had a Court of Admiralty in our law courts and the judge of that court always had the right to call in an assessor to guide him in arriving at a decision. That is exactly the same problem here. We have highly technical questions which the judge does not meet with at all in the ordinary course of his professional work and he is suddenly called upon to give a decision on the question and, so that he may have assistance, I suggest he should have the right to call in technical assistance where he thinks that necessary.
Mr. Dillon: I am sorry not to be able to return support for support.  Deputy Good was kind enough to see something worth while in an amendment I proposed; but I cannot accept his contention that there is any analogy whatever between the practice of the Court of Admiralty and the difficulties that would confront a Circuit Court judge dealing with an appeal from the district justice or a special tribunal under this Act. The reason the Admiralty judge was allowed to call in an assessor—Deputy Good will correct me if I am wrong—was that there is a considerable volume of law which has grown up by custom in Admiralty matters of which an ordinary High Court judge has very little knowledge at all. The Deputy will remember that to meet the analogous situation which arose, affecting cases that came from the City of London, they did actually set up and still maintain in London a Commercial court, where you have judges devoting their whole time to studying the law or the custom of the City of London. There never was enough work to do in the Admiralty Court to justify one judge devoting his whole time to it, so you had Admiralty, Divorce and Probate under one court. Where the High Court judge was sitting it was necessary to bring in an assessor on the Admiralty side, to assist him on highly technical matters relating to the custom that had arisen in that particular branch of British mercantile life. Here the court has to decide certain rights, to decide whether something is reasonable or unreasonable, whether the circumstances that influenced the lower tribunal in arriving at a decision were given sufficient weight to, and it is a court of review and not a court of first instance.
All the Circuit Court judges here are called upon to decide is “did this tribunal or this district justice go, what they call in America, ‘loco,’ when considering the facts which were laid before him?” If the Circuit Court judge decides that the matter had been sufficiently considered by a tribunal of persons of special knowledge and practical experience I think it would be highly undesirable that he should intervene to alter the  decision. All the circuit judge is asked to do under this section is to make up his mind whether the matters have been duly and properly considered by the court of first instance to which they went.
Mr. Dockrell: I think Deputy Dillon, in making his statement, has been led away in the case of the Admiralty by the amount of apparently special legal knowledge that might be required for a case. I should like to urge that in this instance, while there would probably be no legal knowledge required, the case might turn on a very highly specialised and highly technical point. I can imagine a judge being in difficulties in connection with the contention that the growth in traffic in the future would tend in certain directions, or some other point such as that, and I can visualise that he would be likely to call in an assessor. In that respect I should like to urge that the power should be left to him, if he so desires, to call in perhaps the one expert in the country who could really give an authoritative opinion, so as to help him in arriving at a decision.
Mr. Good: Before the Minister replies I should like to point out to Deputy Dillon that in the Court of Admiralty in which an assessor was appointed, the assessor was taken from a panel of laymen who had special knowledge of seamanship, navigation, and others matters, which is not possessed by the ordinary judge. The ordinary judge is assumed to possess all the legal qualifications. For none of those assessors who were appointed were legal qualifications of any kind necessary. In this case here, as Deputy Dockrell has pointed out, it is only on a highly technical matter, when the judge finds himself in some difficulty, that an assessor would be called in. If he is satisfied that he could deal with the matter then the decision remains with him. It is only to assist him in cases where assistance is necessary in order to arrive at a proper decision that an assessor would be called in. I think it is only fair he should be given that right; I think when he requires technical  assistance on any point he should have the right to call for it.
Mr. O'Kelly: I accept the case made by Deputy Dillon against this amendment. I do not really see the necessity for it. We have now provided for a tribunal of persons with special knowledge and practical experience, and if there be an appeal it will probably not be an appeal on technicalities. If there be such an appeal to the judge he will have experts on both sides before him. Such judges are dealing with similar cases in our courts every day. They are dealing with them on malicious injury claims. They have before them experts on both sides—experts for the local authorities and experts for the claimants—and they have to decide, as commonsense men and men of experience and practice will do, on the cases before them. I imagine they will be pretty well able to deal with the claims. Although claims of this kind will be new to them it will not be long before they become just as qualified to deal with them as they are to deal with the highly technical matters—after hearing the evidence on both sides— which arise in present-day cases.
Mr. Good: The Minister admits that this is entirely a new Bill to deal with new matters, and until the judges get accustomed to those matters it is essential that we should give them assistance if they require it. If they do not require the assistance we do not provide it. It is only in cases where they want assistance that they have power to call for it.
Mr. Dillon: Might I remind the Minister that where a judge is sitting on the bench, and he is told to call in an assessor, the fact is you are taking from the judge his judicial functions and giving them to the assessor. The moment the assessor comes in and says: “My lord, I am of opinion that this cannot be done” the entire judgment is suspended. You are simply setting up in place of the judge of the Circuit Court, whom the Oireachtas has chosen, somebody whom the judge calls in. We are not paying judges to call in somebody else to do their work. We pay them to do  the job because we think that they are fit to do it. If they are not fit, you ought to take the circuit judge out of the Bill and put in somebody whom you nominate from time to time.
In page 24, line 60, Section 49 (2), after the word “which” to insert the word “either,” and in line 61 to delete the word “and” and substitute the words “or was begun under and in accordance with a general permission and in either case.”
(1) Where the planning authority by whom a special prohibition is made in relation to any work is of opinion that the effect of such work having been done contrary to such special prohibition could not be remedied they may declare that such special prohibition shall be absolute.
(2) Every person who proceeds with any work in respect of which an absolute special prohibition has been made and is still in force shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding 50 pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
There is a provision in this Bill whereunder the planning authority may  make an order which is described as a special prohibition. “Special prohibition” is defined under Section 2 as “a prohibition made under this Act by a planning authority prohibiting, whether absolutely or subject to conditions, the further proceeding with the construction, demolition, alteration, extension, repair, or renewal of a particular structure.” It is proposed under this amendment to give the planning authority power—where they see a special prohibition being neglected in such a way that damage of an irreparable character will be done before the machinery of the statute can be set in motion in order to restrict the person from doing what he was prohibited by the special prohibition from doing—to make an order declaring the prohibition to be an “absolute, special prohibition,” in which event any further activity on the part of the prohibited person becomes an offence under that section of the Act, and he is liable to a fine of £50, or imprisonment for a term not exceeding six months, or both fine and such imprisonment. I may say that this is an amendment which I have been asked to put on the Paper by another of that disappointingly small band of enthusiasts. I think the object is a good one because one can readily imagine that a person might be prohibited from pulling down some historical relic or some beautiful piece of woodland and might nevertheless start to do it, determined to pay any damages that were inflicted on him and that it was worth his while to do it. In the event of his showing that inclination, this gives power to the authority to convert what that man proposes to do into a misdemeanour for which he can be imprisoned. I think there is a similar power in the Forestry Act by which the Minister can issue an order prohibiting a man from cutting any tree until he (the Minister) has had time to look into the question and to make up his mind as to whether it is legitimate to cut and plant or whether it is necessary, in the public good, that there should be no cutting at all and it has proved extremely useful.
I had recently to invoke the exercise of those powers by the  Minister, and but for the fact that he had that power, one of the most attractive beauty spots in the County Donegal would have been destroyed long before any effective attempt could have been made to restrain the person who was destroying it. It is necessary to bear in mind when considering this amendment that Section 54 gives any person aggrieved the right to appeal within a prescribed time to the Minister and, thereupon, the Minister may do almost anything. It is true that the Minister's decision in the matter is final. I do not quite understand why the appeal is to the Minister and not to the Circuit Court or District Court, as it was in another case. However, if the Minister adopts my proposal to take powers to call together the consultative council, I think the Minister, with that consultative council, is probably a very much better tribunal than any court would be, so that, provided my earlier amendment is accepted, an aggrieved party has an ample safeguard and this amendment will provide that nothing can be done precipitately that will be irreparable. While it gives the local authority, which is the planning authority, the right to make an order absolute, the aggrieved party has a ready remedy in going straight to the Minister to have the absolute character removed, if it be an injustice to him. Therefore I suggest that, as this is purely a precaution and can do no permanent injury to anybody, it is something which ought to recommend itself to the Minister's favourable consideration.
Mr. O'Kelly: I am quite prepared to accept the amendment but I am not quite satisfied that there is an appeal against a special prohibition being made absolute. We would want to arrange for an appeal to the Minister against the making absolute of any such order and there are probably one or two consequential amendments which will have to be made in the Bill. If the Deputy withdraws his amendment, I will see that something suitable, embodying his idea, is brought in in the Seanad later on.
(2) The foregoing sub-section of this section shall not apply or have effect where the condition referred to in that sub-section is of such nature that, if the planning scheme referred to in the said sub-section had been in operation when such condition was imposed, such condition could have been enforced by a provision in such planning scheme and no compensation would be payable under this Act on account of or arising from the coming into operation of such provision.
This new section enables compensation to be awarded when property is reduced in value by the due performance or observance of a condition attached to a special or general permission or special prohibition before a planning scheme is made and comes into force. Under Section 27, a planning scheme may contain a declaration that no compensation shall be payable in respect of certain matters and the sub-section proposed to be added will limit the provisions of Section 55 accordingly.
(5) Where a requisition is made under the foregoing provisions of this section by a statutory undertaker in respect of property occupied by him, then so long as such property continues to be occupied by such a statutory undertaker and is used by him for the purposes or  any of the purposes of his undertaking, such property shall not be deemed to be used for a purpose or in a manner substantially different within the meaning of this section from the purpose for and the manner in which it was used at the date of the application for payment of betterment in relation to which such requisition was so made.
Every application by the responsible authority for payment for betterment by any person shall, in default of agreement, be determined by arbitration under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by the Acquisition of Land (Reference Committee) Act, 1925 (No. 22 of 1925), in like manner in all respects as if such application arose in relation to the compulsory acquisition of land and such payment for betterment was the price of land compulsorily acquired, and the said Acts shall apply accordingly subject to the subsequent provisions of this section and also subject to the provision that an appeal shall lie in from the decision of the Arbitrator to the High Court.
Mr. O'Kelly: The Deputy proposes an appeal from the decision of the arbitrator on the question of betterment, but there is a cognate subject, compensation, on which I do not notice that he proposes that there should be any appeal and there is really no difference between the two. The same conditions will prevail with regard to both and the arbitrator will have almost exactly similar duties to perform in both cases. The same man will be dealing with both and in both cases the whole question will revolve around the value of property, land or buildings, at a particular time and whether there has been loss or gain on a particular date. The same arbitrator with the same practical experience will be dealing with both cases, and if he is competent to assess compensation he should be equally competent to assess betterment. Exactly the same principles will be the basis of all the work he will have to do, both in assessing compensation and in assessing betterment. Men are doing that work every day now, to a great extent in the City of Dublin, in connection with the taking over of slum areas, and assessing the value of properties and sites. They will be doing exactly the same work under this Bill, and whether it be betterment or compensation, the same laws and the same practical experience in guiding the arbitrator will have to be brought into operation. I think there will be the same satisfaction, as, I believe, there is expressed generally in regard to the arbitrator's work all over the country. I am not referring to any particular individual but, generally speaking, their decisions are accepted as fair. Nobody, so far as I am aware, has demanded an appeal from their decisions which, I believe, will be generally accepted as wise. There may be individual cases in which there will be disagreement, but, generally, they are accepted as fair and just, and I imagine that the same will be found in the future, whether with regard to betterment or with regard to compensation.
Mr. Dockrell: I agree with what the Minister says about compensation, but as regards betterment, that is a purely hypothetical matter which, I think, would have been better left out altogether. However, I am not going to enter into that now. At the same time, you can have some extraordinary cases for betterment, and I do not think the Minister is quite fair in saying that compensation and betterment are on all-fours. Betterment is more or less a purely hypothetical thing. I suppose we are following the procedure in other countries and, from that point of view, I suppose we cannot fall out with the Minister for putting this into the Bill. At the same time, it is a highly hypothetical matter. However, I shall bow to the Minister's decision.
Mr. O'Kelly: Well, of course, in any valuer's work to-day, if you ask him to put down and give you a scientific thesis on the basis of the valuer's work, you would find it difficult to get it from him. Still, a man of experience will be able to convince a commonsense man of the rights of his position. It will not be so hypothetical as the Deputy imagines. He might be able to test it by seeing land in the neighbourhood that was put up for auction in the market. That will test whether there has been betterment or not, or whether there has been an increase of valuation or not. It is only on evidence of that kind that valuers, who are usually experienced men, will go in making their decision. On questions of law, there is at present a right of appeal from an arbitrator to the High Court, provided the arbitrator is asked to state a case. It does not often arise, but the arbitrator can be asked to state a case on a question of law and that can be taken to the High Court.
The two amendments, Nos. 45 and 47, were introduced to meet the views expressed here by Deputies on the Committee Stage. The county council have certain powers to make laws under Section 16 of the Local Government Act of 1898. I am not sure whether this meets what some Deputies desire. If the House so desires, the new paragraph proposed in amendment No. 47 can be added to the Schedule:—
The condition of land may injure amenities not only because of neglect, but also because something objectionable is done in the land; for instance, through the deposit of refuse in a garden in a residential area. The amendment widens the paragraph so as to enable steps to be taken in such a case.
Mr. Dockrell: I should like to say a few words on the Bill as a whole. The Minister has wondered rather that the Bill, perhaps, has not attracted more attention than it has. I think everybody agrees that town planning is a highly technical question, and it devolves upon experts to point to the right way in controlling the development of towns. There is no doubt that the officers of the local authorities are, in some cases, very clever and capable officers who are, in the main, looking out for what is the best development for the property under their control. There is no doubt, however, and I suppose it is common to all such people, that, in the case of people holding official positions, the temptation is to play fair for safety and not to embark on any schemes of development or planning. I am sure the Minister will recognise that if there is any defect in this Bill, it is that the authorities are not encouraged —I will not suggest for a moment that they are discouraged—but that they are not encouraged in any way to plan for the future. If one talks to officials in various local areas one will find that nothing is further from their thoughts than what direction the planning of the area is tending towards, or what will be the requirements 50 years hence.
I should like to point out to the Minister, having regard to what happened here in this city a number of years ago, when the Wide Street Commissioners were in vogue, and the number of improvements they carried out, that nobody thinks of questioning what the pounds, shillings and pence for every particular item were. I should like to urge on the Minister to consider how far any provision could be made that some steady effort towards planning the cities, at any rate, if not the rural areas, should be made steadily and from year to year along certain lines. There is no doubt that, with forethought, pence will do to-day what pounds will be required  to do to-morrow. In that respect, I should like to urge on the Minister—I know certain individuals can complain to his Department, or put certain views before him—that the scope ought to be widened in order to allow local authorities, or rather to encourage local authorities, to try to plan their districts ahead.
I need not go into how closely here in Dublin the question of housing is bound up with town planning and how far the question that certain areas are insanitary and ungetatable is bound up with the question of town planning and that very considerable sums could be saved in the present and still larger sums in the future if traffic arteries were considered in relation to those areas. I have nothing but the greatest praise for the way in which the Corporation carries out its new housing schemes. At the same time I think that they are not sufficiently alive to the linking up of the various areas throughout the city. I should like to urge on the Minister—I do not quite see how it can be done under this Bill —that the greatest possible encouragement should be given to the local authorities to plan their cities as a whole.
Mr. O'Neill: I should like to follow on the line taken by Deputy Dockrell with regard to this matter. I was particularly struck by the statement of the Minister that there has not been the response in regard to this matter that he would have wished, and I think that any of us who have taken an interest in this Bill will agree that that has been the case. To some extent I think the reason is that our local authorities are not sufficiently well informed as to the powers conferred upon them by this Bill. I suggest that, if possible, the Minister's Department should issue a memorandum to the various local authorities, particularly the rural authorities, with regard to the powers that they will possess under the Bill for the preservation of the amenities of their district. Deputy Dockrell stressed the fact that what may be very cheap to-day may in future years be very expensive. He also stressed the point that this Bill appeals  more to the cities where more technical skill has been brought to bear upon future planning.
I should like to point out that the amenities and beauties of our rural landscapes have been seriously threatened for some years past. Under the Bill wide powers are given for the preservation of these amenities. I have been myself interested in some of the beauty spots of the south-west. In recent years some of these were parcelled out and sold in building lots and the most frightful monstrosities which are most offensive to the eye have been raised upon them. It is really a crime on the amenities of our country and that kind of thing can be arrested under the powers conferred by this Bill. For the proper working of the Bill and the attaining of the objects which the Minister has in view, and which we all sympathise with him in trying to attain, I do suggest that a memorandum should be circulated, particularly amongst the rural authorities, pointing out the powers conferred upon them by the Bill. I sincerely hope that the Minister's ideas with regard to the Bill will be fully realised.
Mr. O'Kelly: I will bear in mind what Deputy O'Neill has said with regard to drafting and sending out a memorandum to local authorities explaining the powers contained in the Bill. The discussions on the Bill here probably have had some effect in calling attention to those powers, and I know that some local authorities have written to the Department for explanations and for further information, but not to the extent that we would have wished. Some of them have made suggestions. As far as town planning is concerned, it is a matter largely for our county boroughs and cities such as Dublin and Cork and perhaps Limerick and Waterford, particularly those places which are growing, as some of them are growing rapidly. I am aware of the fact that in our cities generally the officers of the local authorities are wide awake on the question of town planning and take a keen interest in it. That is true of Dublin. The city manager, the city architect, and the city surveyor have all spoken to me at  different times about it. Years ago, before a Town Planning Bill was thought of, I have heard municipal officials in Dublin complaining of the want of such powers to prevent things that they saw happening in the city that they would have wished to have been able to prevent. The same applies to Cork. I know that the city manager there and his staff do look forward in their housing schemes. There are progressive officials both in Dublin and in Cork. I am told that the same can be said of some of the other cities. They welcome the Bill and the powers it gives them and they are looking to the future development of the areas under their control.
The best town planners we ever had in Ireland were the Wide Street Commissioners of the old Parliament known as Grattan's Parliament. They did the best town planning that was ever done in any part of Ireland. I hope that our local authorities will follow their example as far as they can. If in the last 60 or 70 or 100 years some thought had been given to this matter, or if the authorities had the same powers as we are now proposing to give them, there would not be the same necessity for commissions of inquiry and the enormous expenditure that is now necessary to widen some of our main traffic arteries that Deputies Dockrell and Kelly know about.
Mr. O'Kelly: You are doing your share in town planning in trying to widen Aungier Street and George's Street. That is good town planning and I hope more of it will be done. With the growth of traffic in Dublin and Cork and other cities there is a need for more of that kind of work and I hope it will not be too expensive. So far as my Department is concerned. I am satisfied that every encouragement will be given to local authorities to make full use of the powers given under the Bill. The officials of the Local Government Department have taking a keen interest in this Bill. If they were not  keenly interested, and if I were not interested in it myself, the Bill might not have seen the light of day for many years to come. It was not pressure of public opinion that succeeded in getting those necessary powers given into the hands of local authorities. For that reason I wish to say that a tribute is due to the officials of my Department for the encouragement that they have given in getting legislation of this kind brought to a head. They worked very hard and efficiently at it, both the technical and, if I might call them, the non-technical officials. I think the measure is a credit to them. I feel that a word of praise is due to them as well as to the officials of the local authorities who have helped us in drafting the Bill, and I should like to have it on the records of the House.
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