Private Members' Business. - Planning Appeals Bill, 1967: Second Stage (Resumed).

Wednesday, 21 February 1968

Dáil Eireann Debate
Vol. 232 No. 10

First Page Previous Page Page of 56 Next Page Last Page

Question again proposed: “That the Bill be now read a Second Time.”

Minister for Local Government (Mr. Boland): Information on Kevin Boland  Zoom on Kevin Boland  As Deputies are aware I did not want to come in on this Bill too early. That was because it appeared to me that a number of Deputies were [1579] anxious to make contributions, and since the obvious tactic was to deal with new planning appeals and other cases which Deputies wished to represent as being planning appeals, although they were not planning appeals, I felt it was desirable to let as many of those Deputies as possible have their say before I came in. I assume that the reason for raising those cases here was that the Deputies wished me to deal with them in my reply and clear up whatever doubts they might have. I hardly think it was the intention to wait until I had spoken and then raise these cases in anticipation that I would not have the opportunity of commenting on them. It would appear, therefore, that to deal with the debate as it has been so far will take some considerable time.

This Bill is ostensibly introduced in order to set up special machinery to deal with planning appeals, to make a fundamental change in the Planning Act which places a responsibility on the Minister and to hand it over to another body. It is for the purpose of setting up rather elaborate machinery, the functioning of which would result in what might be described as a lawyers' paradise. It is obvious that the process of an appeal would consist more or less of the usual type of litigation. However, as the debate proceeded, it became obvious that the primary purpose of the Private Members' Bill was really to provide a vehicle which would further the campaign of slander that has been deliberately and cold-bloodedly decided upon by the Opposition Parties.

A number of individual cases have been referred to already. These have been selected out of what I could properly describe as the huge number of planning appeals that have been decided by myself and my predecessor. These cases have been referred to here already, and that is as far as the debate has gone. I assume that it is intended that more cases will be produced when those Deputies who have been held in reserve by the disciplinary arrangements of the Opposition Parties make their contribution. I will have to deal with the cases that have been raised. It has apparently been decided that in [1580] discussing this Bill which proposes to set up machinery to deal with future appeals, it is in order to discuss the details of cases that have already been decided and, indeed, of cases that have never been referred to the Minister by way of appeal at all. I expect I shall have to deal with these cases that have been raised, and, in view of the fact that there are still the majority of the Opposition Deputies of both Parties waiting to contribute to this debate, I shall also have to anticipate some of the cases that they might decide to raise.

As well as that, the cases that have been selected out of the vast number that have been decided were obviously selected in the belief that the one-sided presentation of these cases which has already, in some instances, been undertaken by the various means of communication, would give a certain picture of the manner in which appeals are dealt with. In order to make it clear that this picture is a false picture, and a deliberately false picture, it will not be sufficient for me just to deal with the cases that the Opposition Deputies selected themselves, but it will also be desirable from my point of view, in order to present the true picture of the manner in which these appeals are dealt with, to select other cases and to point out the considerations that applied in those cases.

In view of the fact that the Opposition found it necessary to go back to decisions made by my predecessor, I think, in order to show that there was at least no great difference in the manner in which different Ministers have dealt with appeals, that it will be essential for me to produce some cases that were dealt with by his predecessor and by the person who preceded him also as Minister, who was Deputy P. O'Donnell. It appears, then, that it may be some time before the cases which the remaining Deputies of the Opposition have been holding in reserve will come to light. As I say, I shall have to try to anticipate the type of cases which they will raise. As I said, unfortunately this will all take time, but that cannot be helped. Unlike the Opposition, I think it is necessary, in order to present a balanced picture of this, to deal with [1581] the different types of cases.

Now, planning appeals may be of a number of different types. They may be appeals by an applicant for planning permission against a refusal of that planning permission by the planning authority. They may be appeals, again by a person who applies for planning permission, against some conditions attached to the permission given by the planning authority. They may be appeals by third parties against the decision of the planning authority granting permission to the person who applied for such permission, or against some of the conditions attaching to such permission. So there are a number of different things that can take place.

As I pointed out before when dealing with this matter on my Estimate, the listing of cases by my Department is with reference to the final result of the original application. So that cases which are listed as permission having been granted may not in fact be cases in which — and very often they are not — the original decision of the planning authority was reversed. They may merely be cases in which the appeal by a third party against a permission granted was refused. Similarly cases in which the final result is that the permission sought has been refused may not in fact be a reversal of a decision of the planning authority. It may be a confirmation of it. It will be necessary for me to produce cases showing all these different types of things.

I would think it necessary also to point out that in making my decision on these cases, I have available to me the best technical advice, and certainly the best possible that may be obtained. I consider cases, unlike what a former Minister said was his practice when he was in a position to deal with these cases. On the Second Stage of the Derelict Sites Bill, as reported in the Official Report, column 404, volume 185, 30th November, 1960, Deputy O'Donnell described the manner in which Ministers for Local Government dealt with these cases. Of course, he was speaking only from his own experience. He said:

With great respect to the present [1582] Minister and to all Ministers for Local Government, they cannot possibly deal with each appeal individually. On at least one day in the week there is a file of appeals handed to the Minister with the recommendation of the Department's inspector on them and the Minister, unless he has some reason or other to examine each individual file, merely signs what an individual has put before him.

I want to say first that Deputy O'Donnell cannot speak in that regard, as he purported to do, for all Ministers for Local Government. He has experience only of his own manner of dealing with appeals. On that occasion the then Minister for Local Government, Deputy Blaney, disagreed with him and said that was not the manner in which he dealt with appeals. Neither is it the manner in which I deal with them.

I examine the case in all these appeals. As I said, I have the best possible technical advice available to me. I have a large number of appeals to deal with and this takes some considerable time, but I deal with them according to my opinion as to my responsibility as Minister for Local Government. Of course, I do not do it in a five-day, 40-hour week. It takes me until late at night — until 10.30 or 11 o'clock on Christmas Eve, for instance. I deal with them and I read them. I do not sign documents without examining the files, as Deputy O'Donnell says he did.

In view of the fact that Deputy O'Donnell, according to his own words, does not know the circumstances that obtained in any of the appeals he decided, I think it would be good for him if he now learned something about some of the appeals he decided. I propose to inform Deputy O'Donnell now, and if he will not be here to listen, at least some of the information about some of the appeals Deputy O'Donnell decided when he was Minister for Local Government will be available to him in the Official Report of the Dáil Debates. I know of course that this will be in the Official Report only. I know that the freedom of speech we hear about in the Opposition newspapers and other places is [1583] interpreted in a certain way. Freedom of speech there means freedom for people who have access to — the small group of people who have access to — these media of communication to present the side of the story they themselves are interested in and, at the same time, to suppress the other side of the story completely, or worse still to pretend to give it by making some passing reference to some slight aspect of the other side of the question.

I am aware therefore that the other side of these cases is not going to be put. I know that when the Irish Times and those other crawthumping hypocrites talk about free speech, they interpret the phrase “freedom of speech” in that way. It is freedom for the people who are in control of these media of communication to twist and distort every case in whatever way they see fit. It is freedom to suppress the other side of the story and give only the side that interests them at the particular time, and to present only the side that interests them and the side that helps to promote the campaign of slander that has been decided upon in a cold-blooded and determined manner by the Fine Gael Party and the Labour Party——

Mr. Barrett:  Is the Minister suggesting that these newspapers do these things at the behest of the political Parties?

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  They do it in order to promote this campaign your Party have decided upon and your Party are systematically promoting.

Mr. Barrett:  The Minister says that the political Parties dictate to the newspapers what they should publish and what they should delete. Does the Minister stand over that? Does the Minister say that?

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  I did not say that. I said they present the side of the story they are interested in and the side of any particular story that can be used to promote that campaign.

Mr. Barrett:  That may be what the Minister meant to say.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  They are promoting [1584] this campaign because of the fact that they have so signally failed to make any impression on the voters of the country by normal legitimate political arguments.

Mr. Barrett:  Does the Minister still insist that the newspapers do these things because they are approached by political Parties and asked to?

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  I will say this——

Mr. Barrett:  The Minister said that.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  They know of the decision made by the Fine Gael Party and the Labour Party——

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  The Minister should be the very last person to talk about projecting the truth.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  ——to abandon any attempt to gain the votes of the Irish people on the basis of relevant political issues.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  The Minister is a past-master in distorting the truth and suppressing facts, even on Telefís Éireann.

An Ceann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Order. Deputy Treacy will cease interrupting.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  I have no interest in a few trained professional entertainers.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  The Minister is a past-master at the suppression of truth. That is a well-known fact. The Minister is interfering every day and no one is responsible except the Minister for Local Government.

An Ceann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Order. Deputy Treacy must cease interrupting.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  I intend to deal with these cases and put the facts on the records of this House, where the Irish Times cannot interfere with them.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  The true facts about Montrose. The Minister is responsible for Montrose.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  I will put the facts on the records of the House where they will be available for those interested in the truth.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  Much the Minister cares about the truth.

[1585]Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  A predecessor in Local Government says he never looked at any appeals. He just put his name where some official told him to put it. That was in 1960. The Minister for Local Government at the time said that was not the way he did things. But Deputy O'Donnell again this year, this month, repeated that statement. The statement will be found at column 1127 of volume 232 of the Official Report. Deputy O'Donnell said:

Another day about 100 appeals are taken into him by his officials. They are handed to him for signature. He cannot possibly wade through them because there are files with them. There are local authority files, and also departmental files, and one could not possibly read them through. All one can do is ask:——

At least he says now that he asked; in 1960 when, presumably, his recollection of what he actually did would have been somewhat clearer than it might be in 1968, he said he did not even ask; he just put his name where he was told to put it. Now he says:

All one can do is ask: “Are you affirming or are you reversing the decision of the local authority?” If they are affirming the decision, and if no representations have been made, they are merely handed to the Minister for signature. As I say, you have not the slightest chance of reading them through. I am speaking from practical experience and I am sorry to say there is not a hope in hell of reading through all the files. You depend entirely on your officials. I want to be fair to the officials and to the assistant secretaries or the secretary who brings you the appeals.

Now, that is not the way I deal with appeals and, since Deputy O'Donnell maintains that he knows nothing about the appeals he decided, I have here some appeals he decided and I will put on the records of this House the considerations that applied, the decisions of the local authority which came before him and the decisions he took. Now that Deputy O'Donnell has more time on his hands than he had when he [1586] was Minister for Local Government, he will have this opportunity, at least, of becoming acquainted with some of the decisions he made. I am sure he will be surprised to discover that some of the decisions he made were in relation to appeals which were submitted by people with whom he could not have been unacquainted.

In one particular case, the appeal was by a person whom he certainly met every second day. He did not learn anything about these appeals when he was deciding them. Maybe, when he had time for contemplation, he formed the opinion that he should reverse the decisions of the local authorities with regard even to such horrible things as petrol filling stations. Maybe he got this time for contemplation while he was driving, or being driven, around in his State car, because Deputy O'Donnell may recognise one of these particular decisions and he may have thought that is where he got the idea. Not, of course, that anybody mentioned to him while he was in the State car that it would be an advisable thing to change the decision of the planning authority in regard to an application to erect a petrol filling station in any particular part of this city. My method of dealing with these appeals is different from that of Deputy O'Donnell.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  Surely the Minister is hitting very low depths when he talks like this about a former Minister?

An Ceann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Would Deputy Treacy allow the Minister to make his speech?

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  Deputy Treacy talks about low depths——

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  It is deplorable that a Minister should speak like that about a former Minister.

An Ceann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Order.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  Deputy Treacy could not bring himself to come in here to hear his own Party members talking. Deputy Treacy talks about the low depths to which a person descends by referring to a previous Minister, but if Deputy Treacy could have overcome his scruples to such an extent as to [1587] come in here and listen to his own Party members——

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  Obviously the Minister has no scruples whatsoever.

An Ceann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Order.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  ——listen, in particular, to that noble Deputy Cluskey speaking, he would have heard him refer to a decision made by a Minister, who is no longer the Minister for Local Government and that is one of the cases I propose to deal with.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  Taking up the time of the House.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  I will deal with the cases that were raised and then I shall go on to show that, if there are people with the same type of dirty, suspicious mind, or if there are people who were members of a Party and who had cold-bloodedly come to a decision that they had no future in proceeding on normal political lines and the only thing to do was go out and slander, then some of Deputy O'Donnell's decisions would have supplied ammunition for such people to carry on that type of campaign; and, even if some of the newspapers at that time were interested in dragging political life down and interested then in pursuing their present type of campaign, they, too, could have got material for the same type of campaign at that time.

As I say, this will take some time. I said my method of dealing with appeals is different from that of Deputy O'Donnell. I consider I should know what is decided. I do not say I read through every single file, but I certainly read the advice given to me and I certainly, in every case I have decided, have at least read the summary submitted to me. As I said, I do not do that in a five-day 40-hour week; it took me until late at night, any night I could spare, in the Custom House, up to and including Christmas Eve. But I was satisfied that my decision was right in every single case in which I gave a decision and I propose now to justify that decision. Mark you, I have a big supply of documents and, in order to anticipate the contributions of those Deputies who were held, as I [1588] said, in reserve by the disciplinary arrangements of the two Opposition Parties, I shall have to give quite a selection of cases that have not yet been raised here. I read the advice given to me, and if I have any doubts I go back for further information and I go through the whole file and read all the submissions in every case.

Few of the Deputies who spoke dealt with the Bill itself and, before going on to deal with the allegations made, I should like to deal with the proposals in the Bill. The Bill proposes—I do not think many Deputies know what it proposes or care — the assignment of one of our judges on a whole-time basis to take over the functions of the Minister in respect to planning appeals under the 1963 Act. That is the first thing it proposes. The person concerned would remain a judge. His salary, I presume, would be the salary of a judge. It is proposed that this person would decide appeals and that he would be assisted by two assessors with technical qualifications who would be employed for three years initially.

Apparently the Fine Gael Party know that two such technically qualified assessors would be available for employment for a period of three years initially. The experience of my Department in efforts to obtain these qualified persons does not lead us to suppose they would be available but we can assume that the Fine Gael Party know better than that, that such people could be got on these terms. However, they would not be got for nothing.

Mr. Barrett:  Would the money not be well spent? If it resolved doubts so that the public will know that there is no jiggery-pokery in decisions on appeals——

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  There is something involved here more than jiggery-pokery.

Mr. Treacy: Information on Seán Treacy  Zoom on Seán Treacy  Who caused doubt down in Roundstone?

Mr. Molloy: Information on Robert Molloy  Zoom on Robert Molloy  The Deputy will read all about it.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  Roundstone was one of the cases in which the Fine Gael Deputy for West Galway alleged that [1589] influence was used by a member of an organisation called Taca. When I come to deal with that, hardly tonight, I will, I think, cast some doubt in the minds of some members of the Fine Gael Party who may know more about their own higher echelon that the person involved in this is a member of Taca. They might know in fact that he was a member of a different organisation. The case from Roundstone, one of the many cases that come to me from the West, will be dealt with.

Mr. Molloy: Information on Robert Molloy  Zoom on Robert Molloy  The Fine Gael director of elections.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  Deputy Treacy can rest assured of that. In the meantime I will deal with the matters that come before me arising out of this Bill. As I was saying, in addition to the judge on a whole-time basis and the two assessors to be appointed for three years initially, provision is also made in the Bill for the appointment of staff to serve the board. It does not state how many staff; there is no assessment made as to how many head of staff would be involved, but it would not be inconsiderable. Also it is visualised that the volume of work might necessitate a further board. Possibly it is visualised that the board would be multiplied further by having several judges as deputy chairmen, all employed on a whole-time basis, all paid judges' salaries, allowances and expenses, all paid out of the bottomless well of moneys provided by the Oireachtas.

Mr. Barrett:  Is not money provided to enable the Minister to have staff to deal with appeals?

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  The money is to be extracted from the pockets of the people — this money to be provided by the Oireachtas. Officials and servants are to be appointed by the Minister for Local Government after consultation with the Board. Some Deputies from this side of the House referred to the possibility this conjured up, and to the accretion of legal work that would incidentally be available to members of the legal profession, the fees that would [1590] have to be paid and the building up of what inevitably would become a new Department. One obvious thing is that the expense involved in this would be considerable and that it would grow.

Mr. Barrett:  You have spent money in much worse ways.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  As I pointed out in reply to one of Deputy Barrett's interruptions—I do not recall whether I was allowed to reply before I was interrupted again — there is something more involved in this than the mere decision of individual cases. There is the question of planning policy, and if we are to have a coherent planning policy, then there must be some way of ensuring that as far as possible these decisions correspond with that coherent planning policy. The Planning Act was debated during 1963—I think it was only during 1963, though it may have been before that, but it became the Planning Act, 1963—and it came into operation on 1st October, 1964. It was not brought into operation until 1st October, 1964. The decision to bring the Act into operation throughout the whole country was not taken without careful consideration because it would obviously be a mistake to bring the Act into operation until such time as it appeared likely that it could be implemented.

Even at that time it was visualised there would be initial difficulties: it had been anticipated there would be, and many initial difficulties did materialise. Planning, nowadays, is a highly complex matter and at that time the cadre of skilled personnel was very small, and indeed it is not sufficient yet. At the same time, what has been achieved during the past three years has been remarkable. The initial developing of plans now nearing completion is an important step forward, reflecting the concern, the interest and the enthuasism of local councils and their officials for the future welfare of their respective areas.

Planning authorities are at present dealing with about 20,000 development applications per annum and it is sought to imply that the Minister for Local Government is responsible for the [1591] decisions in each of these 20,000 planning applications. Indeed Deputies have gone so far as to put themselves on record in the debates charging the Minister for Local Government with being responsible for decisions which were in fact made by themselves as members of planning authorities; and, of course, the Opposition newspapers do the same thing. They pretend that every building that is erected, every development that takes place, has been decided by the Minister for Local Government, though they know full well that that is untrue. They state it, knowing it to be untrue, for the purpose of promoting the Opposition's slander campaign.

The fact of the matter is—just in case anybody on the Opposition side or any of the hypocrites in the Irish Times or these other Opposition newspapers might be interested in the truth, which is something I doubt— that only 7 per cent of these are dealt with by way of appeal and the other 93 per cent are not dealt with by the Minister for Local Government at all. The people who preach this freedom of speech have themselves the freedom to refuse to make facts known to the public and all I can do is make the facts available on the records of this House for anybody who is not prepared to accept these one-sided statements as being the truth and who would like to find out the truth for himself.

There are many improvements still to be achieved. I agree with that, but the system under the Planning Act of 1963 is beginning to work fairly smoothly. It is now generally understood and, I think in the circumstances, any change in the system will require very careful consideration. I want to say that I am quite anxious to get rid of the load of having to decide all these appeals. I am not prepared to do the job in the manner in which Deputy O'Donnell did it, that is, by having things decided, as he says, by officials of the Department.

We all agree that appeals should be dealt with as expeditiously as possible. In recent years, it has been found difficult to overhaul the sharp repeated rises in the numbers of planning [1592] appeals. I have said before that I thought many planning appeals should never come to the appeal stage. I have exhorted planning authorities to make every effort to reach agreement, if possible, with the person proposing any development of his own property. It is only in cases where it does not seem possible to recouncile the particular development proposal with the exigencies of the common good that outright refusal should be resorted to. Prior to that, there should be the maximum possible consultation between the planning authority, the planning officers and the individual making the proposal or his technical advisers.

I think there has been a considerable improvement in that regard, but at the same time, it is a fact that, probably because of the increased number of applications, which of course arises from the increased prosperity in the country and the increased confidence in the future of the country, despite the fact that there is more consultation and more resolution of difficulties at local level, the total number of appeals is still apparently increasing.

It was necessary to train administrative staff to deal with the complex questions which arise on these appeals. Procedures had to be worked out and followed which were fair and equitable to all parties and these procedures take time because most of these cases are dealt with in writing.

There was, as I said, a chronic shortage of qualified planners and those who could be recruited had to devote much of their time to other planning and training problems. Nevertheless, since April, 1966, there has been a steady improvement in the appeals position and cases have been cleared more rapidly than before. The average period taken for consideration has been reduced over the past year and a half by about 50 per cent and it is a fact that planning appeals cannot be dealt with properly without being examined and reported on by trained planners. Therefore, further improvements in the time taken in dealing with appeals are largely dependent on trained planners becoming available. I have taken steps towards that end and the arrangements made [1593] with the Dublin vocational education authorities and the universities should help to solve that problem in due course.

Appeals work is only one aspect of planning. There is so much more to be done on the more positive side of planning and development that I feel it desirable that all the inspectors available to me should be closely associated with that side of the work also. I do not think it is feasible or desirable to have people who will merely specialise in dealing with appeals. The present arrangements permit the best use to be made of the skills that are available. Unless the positive aspects of planning are developed further, we cannot hope to realise its benefits to any worthwhile extent.

As I said already, most appeals are dealt with on the basis of written representations by the people concerned. When a case matures for decision, the relevant correspondence and plans are submitted to me, together with the report of my inspector. The normal thing is that a person appealing submits the grounds for his appeal and states the reasons why he thinks the decision of the planning authority should have been in his favour. The processing of the appeal consists of conveying the observations submitted by the appellant to the planning authority and obtaining their comments on these submissions. That takes some time and when these local authority's comments have been received, the appellant, in turn, is given an opportunity of commenting on them. Finally, the planning inspectors of my Department consider the case. In most cases, where a negotiated settlement cannot be achieved, the papers are eventually referred to me. It is necessary that I should have all the relevant documents so that I can give each appeal the fullest consideration. Even those appeals where the issues are straightforward and simple—and there are relatively few of these — may be of great importance to the persons concerned.

In 1965-66, I received 1,344 appeals. Last year there were 1,229, and this year it looks as if the intake of appeals [1594] will rise to at least 1,600. As I said, the work and responsibility associated with the deciding of this volume of appeals place a heavy burden on me, but one which I am not prepared to shirk in the way Deputy O'Donnell says he shirked it. I am not prepared to sign my name on a line without looking at the details. I do not do it; I have not done it; and I do not intend to do it.

I doubt very much if the work could be discharged more quickly if each case had to be considered by the type of appeal board proposed in this Bill. All these processes would have to be gone through and it would take as long, if not longer — personally, I think it would take longer. Certainly I know there would be more people getting a rake-off on it. There would be plenty of work for lawyers and technical personnel generally.

This Bill envisages the setting up of a very considerable and costly organisation and I fear it would have nothing more than a disruptive influence on the whole planning process. It is not merely the temporary effects of a sudden and radical change in the established appeals procedures. If improvements are warranted, and could be effected by this change, I would not object. I am satisfied that the outcome of the changes would inevitably be to substitute a more complicated procedure for the existing arrangements where procedures are kept as simple as possible.

I would ask Deputies to consider objectively the effects of the proposed changes from the aspects of economy and expedition. The appointment of a judge to decide appeals would be interpreted as a feature making for emphasis on legal considerations rather than on considerations of strictly planning concern. It would so influence procedure that appellants might more and more feel compelled to employ lawyers as advocates. I wonder do the promoters of this Bill really appreciate the effect this change might have on the man of slender or moderate means and the advantage which it would confer on the big company and the rich developer? Is it that the Opposition have no interest in the man of slender means? A great number [1595] of planning applications and appeals come from people of that class.

I do not think we can afford to risk the loss of the great practical advantages of the system which enables any person, rich or poor, to make an appeal simply by writing a letter and which assures him that all relevant aspects of his case—legal, technical and administrative — will be examined objectively without further trouble or expense on his part. Only the big developers and the lawyers are likely to benefit from the more legalistic procedure proposed in this Bill.

This grave disadvantage does not appear to me to be in any way offset by the proposal to have a judge as chairman of the appeal board, in fact, it is doubtful that there is any special merit in having a judge decide on planning issues. On what basis is he to make his decisions? A judge in court can follow well-established principles. His task is to apply the law to the cases which come before him. Training, experience and forensic skill acquired in the course of his profession enable him to apply the law and, if necessary, to interpret the intention of the Legislature. There is a vast corpus of precedent for his guidance.

But where is the similarity in dealing with planning appeals? Do the proposers of this Bill imagine that the chairman would simply have to interpret and apply some code of bye-laws? If he looks to the law for guidance, he will find it only on procedure and the things which he may or may not do. He will find that he is restricted to considering the proper planning and development of the area in which the particular case has arisen, regard being had to the provisions of the development plan. The question as to what is the proper planning and development of an area is one of policy rather than of law. His assessors, no matter how highly qualified, can only offer their own opinions as to the proper planning and development of the area.

In general, appeals can be decided only within a general policy framework. The only line of policy available to the board would be that of the planning authority. If the board were to adopt this automatically as a proper [1596] criterion, there would be no point in considering any appeal. If the board were to make their own policies they could not be sure that these policies would be implemented because the components of a development plan must be integrated with due regard to the inter-action of each part on the other.

My objection to the type of appeals board proposed is one of principle. There are problems in dealing expeditiously with the present volume of appeals but I am convinced that the Bill would aggravate rather than relieve these problems. I agree that there is room for improvement on this aspect but I have explained the difficulties so far as I am personally concerned. The deciding of all these appeals is a load I would like to be rid of. I have also indicated some of the new problems this proposal would create.

In view of what I have said, I do not consider it necessary to deal with this Bill in greater detail. Nevertheless, there are a couple of further points I should like to mention.

Subsection (2) of section 7 proposes an amendment of the Appeals and References Regulations. An addition is to be made to paragraph (2) of Article 2 and, although it is not so stated, I take it that it is intended for the end of sub-paragraph (a). The intention appears to be that where an application for permission is refused, any person who has objection to the grant of permission shall be a party to any appeal. It is not quite clear to whom objection may have been made, but I presume that the intention is to give all the rights of a party to each person who lodged an objection with the planning authority while the application was under consideration. In addition, it is proposed to give the same rights to any person who applies to the board and appears to the board to have a genuine interest in the appeal.

I am not unsympathetic to this idea, but experience suggests that it would not be worth the trouble and delay which it would cause in dealing with appeals. Each party is entitled to receive a copy of the appeal and to submit observations. They are also entitled to see any document or information [1597] which any party is required by the Minister to submit. They must be afforded an opportunity to make observations to the Minister on any considerations relating to the proper planning and development of the area which he proposes to take into account and which are matters other than those put before him by the parties to the appeal. Any party to an appeal may request an oral hearing and seven days notice must be given to all the other parties if that request is withdrawn. Notice of the time and place of an oral hearing must be given to each party and each party has a right to be heard at the hearing.

What happens is that a number of residents object to some development proposal in their neighbourhood. If the planning authority turn it down and the developer appeals, the objectors are not regarded as parties to the appeal. If the objectors submit their views to the Minister, he takes them into account. Copies of their letters are given to the appellant in accordance with the regulations. If the appellant requests an oral hearing, notice of the time and place of the hearing is given to the objectors. They are invited to attend and to make a statement of their objections after the appellant and the planning authority have presented their cases. If it appears to the Minister that the matter is of sufficient public interest, he usually directs that an oral hearing be held, even if the appellant or the planning authority have not requested it.

This procedure is not unreasonable. If appeals are to be dealt with expeditiously there must be some limit to the copying of documents and the exchange of submissions, observations and counter-observations. Cases involving oral hearing already tend to take longer to decide than those dealt with by correspondence. It is undesirable that further complications in the procedure be introduced. It is not unusual to have from 20 to 60 objectors—in one cases there were several hundred—all objecting independently. While it might be necessary to instruct an appeal board to have regard to the views of a body of interested residents, I can assure the House that no Minister [1598] needs such instruction. The views of objectors are always given the most careful consideration even where they are not parties to an appeal.

The other point which I want to mention is the requirement under section 8 that appeals shall be decided in the order of receipt. This is qualified by the phrase “so far as practicable”. Without this qualification the effect of the section would be deplorable; with the qualification, I am satisfied that the section could have no effect whatsoever. A recent check in my Department showed that one-third of all the cases not yet sent for inspection were held up because the appellants had not submitted their full grounds of appeal or had requested that their appeal be held in abeyance.

When the inspector is in an area, he normally tries to deal with all current cases in that area. It would be inefficient to restrict him because there is an earlier case awaiting inspection in some other area. When he reports, some of the latest cases may be straightforward and capable of being decided without further correspondence, but further information may be required on earlier ones. Why hold up those cases which can be decided?

There are many circumstances which make delays unavoidable. An appellant may misunderstand the reasons for a refusal of permission and must be given time to make his case when the reasons are clarified. The same applies if a new objection is raised in the course of the appeal. Some cases raise policy issues which have to be worked out in detail; others can best be settled by finding an acceptable compromise. Not infrequently, cases are almost ready for determination when the appellant requests an oral hearing. As regards oral hearings, a frequent cause of delay is the difficulty of finding dates for hearings convenient to all the parties.

This section of the Bill would not in any way help to eliminate what has been the main source of delay in the past—insufficient skilled staff to keep up with a 50 per cent increase in appeals in 1964-65 and again in 1965-66. The measures which I have taken to clear the backlog have been showing [1599] good results and, while there is a further increase in the intake of appeals this year, a much better work flow is being maintained and I am confident that the position will improve further. The limiting factor in this regard is the necessity to follow a procedure which is fair and just to all concerned. In a great many cases delays are outside my control and in other cases, more often than not, are in the interests of appellants. In general, I regard it as more desirable to find a solution acceptable to both appellant and planning authority or to allow an appellant every facility to make his case rather than to reject his appeal promptly.

I have no doubt the proposers of this Bill are anxious to ensure that the procedure for dealing with planning appeals is as just and fair as possible. It may even be that from their own experience they have some appreciation of the difficulties which faced and still face my Department. I am deeply concerned about both aspects, but, having considered these proposals, I am satisfied that they hold no promise of effecting improvements. I also feel certain that there is no special merit in appointing a judge to decide planning issues but that inevitably appeals would be dealt with in a more legalistic manner. For these reasons I consider the Bill to be unacceptable in principle but that does not mean I am opposed to change in the present method. I am arranging to have the whole question of how planning appeals could be dealt with re-examined. There are some serious difficulties in proposing any new system. One of these which I have already touched on is the need to make good the scarcity of skilled personnel. Time must elapse before the supply is adequate to meet the demand, and, in the meantime, we must husband our resources to secure the best possible return from their services.

There are other difficulties also which I do not propose to go into now but if a reasonably satisfactory solution seems possible, I intend to put forward the necessary legislative proposals. The opportunity can also be taken to look again at the other provisions [1600] of the 1963 Act and to consider any changes or amendments which may be found desirable in the light of the experience which has been gained of the Act in operation. This examination will take some little time but when it is carried out we should have reached a position where the regional studies at present in progress are completed and development plans have been made for the whole country. We will then have a comprehensive picture of what has been achieved and a better idea of what is needed to secure the real benefits of planning and the modifications which should be made in the system.

As I said the burden of deciding planning appeals at the present rate is very heavy. There may be some Deputies who think that I am opposing this Bill because I am reluctant to allow appeals to be decided other than by a Minister of the Government or to lose some political advantage. If so, it is time that they studied the Act and the Appeals and References Regulations. I can assure the House that, as far as I am concerned, I would be very pleased to get rid of this responsibility if I thought planning policy could be implemented in some other way. I am just indicating some reasons why I consider it necessary to oppose this Bill.

As I said, the manner in which the debate has been conducted makes it necessary for me to deal with allegations made by those Deputies who have been allowed to speak so far. I want, first of all, to point out that there is some element of profit for the individual making the proposal in, I am sure, every planning application made. Otherwise, it would not be made. There is provision made for the hearing of appeals and in any case in which an appeal is made there is a dispute as to the validity of the reasons given by the planning authority for making its decision. I would say it is probably inevitable that some appeals would be successful. Obviously then, in view of the fact that there is this big number of appeals submitted, these planning appeals offer great scope for any group of people who have decided as a deliberate policy to abandon any effort to remove the Government by the [1601] normal political tactics and to embark instead upon a deliberate and planned campaign of character assassination. I quite appreciate there is no field which offers better scope for that type of person, for the type of person who cannot carry out his political efforts in the normal way, who has long ago despaired—no matter how many new policies are drafted—of getting the support of the people on that basis——

Mr. Dillon: Information on James Matthew Dillon  Zoom on James Matthew Dillon  Even the furniture is beginning to creak.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  ——who has come together with his colleagues in a particular political Party, has sat down and decided that the programme of drafting new policies has been unsuccessful and, therefore, we will go back to the type of campaign of slander and of character assassination which secured a very temporary success in 1948 when it was carried out and when it was not considered even too far to go to resort to open perjury. Everybody who has a planning appeal decided in his favour gets some advantage from it. Therefore, the type of individual who can descend to this kind of tactic has, of course, scope to pursue his disgusting occupation in regard to these appeals. Some of these allegations have been made here and I propose to deal with them.

As I said, in all these cases there is a difference of opinion; otherwise presumably an appeal would not have been made. The individual who has submitted the planning proposal has, generally speaking, got technical advice available to him and his technical advisers advise him that the proposal is not objectionable, and that if it has been turned down, the grounds on which it has been turned down are not sufficiently worthy to justify the rejection of this proposal to carry out the particular development. As a result of that advice which he receives he appeals. On the other hand, the planning authority have technical advice available also and they have decided on the basis of that technical advice that the particular development should not be allowed. However, that is not an unusual type of situation. It is with the same type of situation, of contradictory [1602] advice being given to two parties, that the legal profession make their livelihood and in a legal case, both parties have presumably got the best technical advice that was available to them. On the basis that their case was a justifiable one, they go to court and have it decided but it can only be decided in favour of one or the other. It is similar with regard to planning appeals. There is a dispute. There is technical advice available to both sides and a decision can be in favour of only one side. I have already expressed the opinion that in these planning matters there are two important principles involved, not just one as some people try to convey, as the people who have the sole access to the media of communication try to convey. They try to convey that there is just the aspect that interests them and that nothing else matters, that the only relevant consideration is the amenity they enjoy from the undeveloped state of somebody else's property. I assert that there are two considerations involved and I feel I should quote Article 43 of the Constitution. Article 43, subsection 1, paragraph 1, reads:

The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

The next paragraph reads:

The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

Subsection 2 reads:

The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Mr. Dillon: Information on James Matthew Dillon  Zoom on James Matthew Dillon  Hear, hear.

Mr. Boland: Information on Kevin Boland  Zoom on Kevin Boland  Contrary to what the Opposition have been trying to allege [1603] and contrary to what the Opposition newspapers have been trying to convey, as Minister for Local Government, I do not think the Planning Act supercedes the right to private property. I think it delimits the exercise of those rights in order to provide that they will be reconciled with the exigencies of the common good. I do not think it could do any more and that the fundamental right is a relevant consideration, but I also think that the exigencies of the common good is a very relevant consideration and that the question of the amenity that somebody else's property provides for the community as a whole is a relevant consideration, but where I disagree with these people is in their assertion that it is the only consideration.

I do not think this. Unlike these people, I think that the interests, let us say, of the smallholder in the west of Ireland in the use of his property is a relevant consideration. They maintain it is not. Well, that is where the difference of opinion comes in. They maintain that the only consideration is the question of amenity for people who appreciate amenity. I disagree with that. In effect, I believe that in dealing with these appeals, I am required to take into consideration these two principles, not just the one principle, and I insist on doing it while I am Minister for Local Government and while I am charged with the responsibility of deciding planning appeals. I know that this offends these people: I cannot help it. They will just have to continue to be offended. I do not know that they have any particular justification for constituting themselves experts. I do not know that the mere fact that a person has access to newspaper columns automatically makes him an expert on planning matters but apparently that is the position. They presume that this accident makes them experts—so expert that they can decided these things without examining the case that is put forward but can decide purely and simply on the basis of their own instincts.

I suppose that is a very comfortable frame of mind to be able to have, but I am not like that. I feel that I must examine the case put forward not only [1604] by the people who are interested in preventing a particular development but I also think—and this is what annoys them—that it is my duty to consider also the case put forward by the person who wants to carry out development. That apparently offends these people and in regard to particular cases which have been raised, it also offends the Opposition. Before I conclude, I intend to put to the Opposition Parties some of the decisions that were made by an Opposition Deputy when he was Minister for Local Government and we will see whether people were offended by the decisions taken in those cases.

I am expected not only to implement the planning objectives of the planning authorities but also to implement every single wish of every self-constituted expert who has access to any of the media of communication and who, as I said, exercises his God-given right to free speech, which is, of course, interpreted by him as being the right to put his own point of view at length and to exclude any other views whatever.

I do not know whether it would be better to give some examples of decisions made by Deputy O'Donnell or whether it would be better, first of all, to deal with some of the allegations that have been made in this particular debate. Perhaps we will start by dealing with some of the allegations that were made.

I take, first of all, one of the cases dealt with by my immediate predecessor. Deputy Treacy was here some time ago and was shocked that anybody should deal with cases that were dealt with by somebody else as Minister for Local Government. Apparently he was not aware that one of his colleague's contribution to this debate consisted in the main of a highly imaginative discourse with regard to an appeal which was decided by a former Minister for Local Government. Deputy Cluskey's contribution to the debate consisted largely of wild, general charges of corruption in high places, particularly in connection with decisions on many planning appeals. When he was challenged to be more specific, he produced just two cases. One of these dealt with a case [1605] decided by myself and the other case related to a decision made by my predecessor in regard to private housing development at Kilbarrack.

There was no excuse whatever for the allegations made by Deputy Cluskey in this case. They are completely without foundation and I am well aware that nobody knows better that they are completely without foundation than Deputy Cluskey and his colleagues in the Labour Party. All the relevant facts in relation to this were fully and clearly placed before the Dáil by the previous Minister for Local Government when he replied to a question tabled by Deputy Cluskey on 6th May, 1965, and when he replied again on the Adjournment on that date. Deputy Cluskey alleges that through collusion between the Minister for Local Government and Messrs. Gallagher and Company a private housing development was allowed on 129 acres which had been earmarked for corporation houses and that the builders are now offering back to the corporation 700 to 800 houses in the same area at a price calculated to give them a fat profit margin.

The facts of this case are that in June, 1962, those builders applied to Dublin Corporation for general planning permission to develop approximately 95 acres at Kilbarrack for private housing. In August, 1962, the corporation refused permission on the grounds that they intended to develop the general area for muncipal housing. There was an appeal against this decision and in the appeal it was represented to the Minister that the firm had bought the lands over a year previously with the intention of building about 1,000 low-cost houses there. It was represented that their houses would be similar to corporation houses and that they would cater for approximately the same class of people. They intimated at that time that if the corporation so wished they were prepared to sell the houses to applicants chosen by the corporation.

The appellants stated that they were in a position to proceed immediately with the development of the lands and so provide houses quickly, whereas it [1606] would be years before the corporation could undertake the development of the area. That is something which was not in dispute. I think Deputies on all sides of the House represent themselves as being interested in the main in the speedy provision of low-cost houses which will help to deal with the long list of people who are applicants for local authority houses. The appellants indicated that they were prepared to conform to any general scheme of development which the corporation had in mind for the area as a whole and to bear their due share of the cost of providing facilities such as shops, open spaces, schools and, possibly, church sites. In fact, the corporation produced a general sketch plan for the area as a whole and the appellants undertook to develop in accordance with this.

The Minister was impressed by the arguments put forward in support of the appeal. In particular, he was aware, and I think most Deputies who are in touch with the people were aware, that there was a substantial unsatisfied demand for private housing of the type they proposed to build—low-cost housing in which people who would otherwise have to depend on the corporation to house them would be interested. He was also influenced by the assurances that were given that the development of the land would be properly integrated with the overall development of the area along the exact lines intended by the corporation. Therefore, he granted the permission sought on the 7th May, 1963.

In the following July, the corporation made a compulsory purchase order for all the lands in Kilbarrack affected by the muncipal housing reservation, including those lands in respect of which permission had been given in May, 1963. This action prevented the development of the lands until the compulsory purchase order had been determined by the Minister. Several objections to the order were submitted and a lengthy public inquiry was held to consider them. In the course of the inquiry it was argued forcibly on behalf of those builders that the lands should not have been included in the order as the issue as to whether they should be used for municipal [1607] or private housing had already been decided in the planning appeal in May, 1963.

The Minister was satisfied that the arguments adduced in this regard were sound and accordingly he excluded the bulk of the lands from the operation of the compulsory purchase order. In so far as the order related to those lands it was confirmed only in respect of one small, detached section which was needed to round-off an area which the corporation were authorised to acquire.

Deputy Cluskey referred here to the crying need at the time for muncipal housing in the Kilbarrack area. The position is that at that time the corporation were authorised to acquire a total area of 228 acres under the compulsory purchase order which the Minister confirmed in October, 1964, but despite the crying need for corporation housing in the area to which Deputy Cluskey referred housing in that area has not started yet. It has not commenced yet although the compulsory purchase order was made in October, 1964. On the other hand, development of the lands which were the subject of the planning appeal has been in progress since 1966 and as I said, it is for the same type of housing as the corporation intended to provide but have not got round to starting yet. A large number of houses on the site excluded from the compulsory purchase order have already been completed and the entire scheme of approximately 900 houses will probably be finished in the present year. I think there can be no question as to the need for the type of house being provided by the private developers.

Debate adjourned.

Last Updated: 15/09/2010 09:50:00 First Page Previous Page Page of 56 Next Page Last Page