Wednesday, 13 March 1974
Dáil Eireann Debate
The Local Government (Planning and Development) Act, 1963, has now been in operation nearly ten years and the general planning system which it established has worked reasonably well. Nevertheless, it would be surprising if, in that time, experience with legislation of such a complex nature had not shown a need to improve various provisions or make them more effective. That is the purpose of this Bill. The amendments proposed in the Bill fall into three groups—
The Bill provides that appeals should be decided by a board—An Bord Pleanála—and the detailed provisions relating to the board are set out in the Schedule. The chairman is to be appointed by the Government in a whole-time capacity for such terms as they may fix. There will not be less than two ordinary members and these will be appointed by the Minister for Local Government. It would be possible to have part-time as well as whole-time members. Appointments will be for three years but members will be eligible for re-appointment.
The board will be an independent body whose terms of office will be safeguarded by the provisions in the Schedule to the Bill. I would draw particular attention to the terms of Articles 6 and 10 which deal respectively  with the tenure of office of the chairman and ordinary members. In the event of a chairman or an ordinary member being removed from office, a statement of the reasons for removal must be laid before each House of the Oireachtas.
I have said that the board will be independent and by that I mean that no power or control may be exercised over the board in relation to any particular case with which the board is concerned. This, however, brings up a major difficulty in the proposed transfer of functions to the board. While such matters as procedure are regulated by law, decisions on planning appeals must be related to the “proper planning and development of the area”.
Planning is an instrument of policy and it follows that any body charged with making decisions on planning appeals cannot operate in a policy vacuum. The issues they raise are related to national policies and objectives, e.g., expansion of housing output, location of industry, the degree of urbanisation, protection of the environment, road safety, measures to meet road traffic and transport needs, conservation and preservation of amenities. A prime purpose of planning control is to facilitate or secure the implementation of such policies and objectives. Planning cannot be static. It must evolve and develop to meet the needs of the community in the interests of the common good which is the basic objective stated in the Long Title of the Act of 1963 and also of this Bill.
Such national policies may well be usefully reflected in a local development plan for a particular area, but it is unlikely that all local development plans will ever achieve perfection and there is always the possibility of a national policy over-riding local considerations. The local development plans are, therefore, not a sufficient policy guide for the planning appeals authority, although by law the appeals authority must have due regard to them. The appeals authority must also be aware of and give due attention to various national policies.
This poses no problem at present. The appeals authority is the Minister  for Local Government. As a member of the Government, he is in the full stream of the policy making process and his own Department is responsible for a very important group of relevant functions in relation to infrastructure and development and social objectives. A different situation arises with the board and two provisions of the Bill are designed to meet the problem.
Because the board will not have available to it, in the same way as the present appeals authority, information as to national policies and objectives relevant to planning, section 4 of the Bill requires the board to keep itself informed of the policies and objectives of Government Department, semi-State agencies and harbour and planning authorities so far as may be necessary for the discharge of its functions. Furthermore, in view of the need for some central focus for the issue of guidance to the board in this area, section 5 enables the Minister for Local Government to give the board general policy directives to which it must have regard but the Minister is specifically precluded from exercising any power or control in relation to a particular case. This latter provision which is contained in subsection (3) is particularly important.
Section 4 and 5 mean, in effect, that the board will have available to it information and guidance for its assistance in applying the considerations laid down in the Planning and Development Act of 1963 for dealing with appeals but otherwise will be completely free to make such decision as it thinks proper in each individual case.
Other sections relevant to the board are section 7 which deals with accounts and section 8 which requires the board to make a report to the Minister each year. This report must be laid before each House of the Oireachtas. The board must also supply the Minister with any information he may request in relation to its functions. Similar provision to this exists in the law relating to local authorities.
 Section 10 deals with the staffing of the Board. It enables the board to employ its own staff but it is likely that difficulties will arise, particularly in the early stages, in getting skilled and experienced staff in sufficient numbers. To avoid disruption and delays, it is envisaged that for the time being the staff engaged on planning appeals work might be seconded to the board. Certain controls over remuneration are given to the Minister to be exercised with the consent of the Minister for the Public Service. This is in line with the Report of the Public Services Organisation Review Group. Other standard-type provisions dealing with superannuation and membership of the Oireachtas or of a local authority are included in the Bill itself for employees and in the Schedual for members of the board.
Section 13 is the section which provides that appeals, references, and similar matters, will as from “the appropriate day” be brought to and decided by the board instead of the Minister. The various types of appeals and the other matters are set out fully in the explantory memorandum. On the same day, under section 19, all such matters currently before the Minister will also become the responsibility of the board.
I think it is generally accepted that one of the best features of the present system is that a person who wishes to make an appeal may do so simply by writing a letter. This is being continued. All a person needs to do, if the decision of the planning authority is unacceptable to him and he feels that there are reasonable grounds, is to ask to have the decision reviewed. If there is an oral hearing, he knows that there will be no undue formality in the procedure and that he can make his own case or be represented by another person. There is, of course, no objection to a solicitor submitting an appeal on behalf of a client or to counsel appearing on his behalf at an oral hearing but the point is that the appellant need not be deterred from exercising his rights by fears that he will not stand a chance unless he incurs heavy legal expense. This is particularly valuable in the case of third parties who might otherwise hesitate to assert their rights  against big commercial, industrial or development concerns. If this feature of the present system is to be preserved, the board will have to ensure that it does not develop a more formal or legalistic approach.
On the other hand there has been some abuse of the appeals procedure. There have been some complaints that certain appeals were frivolous or vexatious. The number may be few but there can be serious financial and other consequences for a developer who finds that he is unexpectedly held up by a third party appeal for which there may be no adequate planning grounds. An appellant can, under the present procedure, drag out the proceedings and at the last minute cause further delay by demanding an oral hearing.
To meet this problem, section 16 of the Bill will enable the board to deal expeditiously with an appeal which is clearly vexatious and section 17 will enable the board to require contributions to be made to the expenses involved in an appeal. Section 17 is substantially a re-enactment of section 18 of the 1963 Act but widened now to cover third parties.
Under the present system a party to an appeal can demand and must be given an oral hearing. With the increased rate of development, changes in the nature of development and growing public interest in environmental and planning matters, the intake of appeals is now approaching 4,000 per annum or about 10 per cent of all applications for permission. It is for this reason no longer practicable to ensure that every appellant who demands an oral hearing will get one unless we are prepared to accept very extensive delays. The great majority of appeals are decided on written representations. This system is more expeditious and, in general, has been accepted as fair. Section 14 gives the board discretion as to whether or not an oral hearing will be held.
However, this does not mean that there will be no oral hearings. I fully accept that there is a strong case for hearings in certain circumstances. I have in mind appeals relating to projects  of major importance and cases which are of general public interest. There may be others. There are, for instance, some cases which can be dealt with more conveniently by way of oral hearing because of the type of issues involved or because of the delays involved in exchanges of documents or representations between a large number of parties. I would expect, therefore, that the board would use their discretion in the general public interest so as to reduce the average time taken to deal with an appeal and have public hearings in appropriate cases. It will be open to any person to petition the board to hold an oral hearing and such requests may be granted irrespective of whether they come from a person who is a party to the appeal.
I do not propose to go into all the remaining provisions of the Bill. As I have already indicated, these are directed mainly towards strengthening the provisions of the Act of 1963 in relation to unauthorised development and to effect various other improvements, some of a relatively minor nature, which experience has shown to be desirable. I may mention a few of these provisions very briefly. Section 22 enables a planning authority to serve a notice in respect of unauthorised development which has commenced or seems likely to commence. This will have the effect of increasing substantially the penalties which may be imposed for any contravention. Section 23 enables the High Court to prohibit continuance of any unauthorised development or use and section 25 provides that, if a planning permission is not used within five years of its grant, it lapses. There are also many amendments consequential on the transfer of functions from the Minister to the board.
Before I sit down I would like to say that I will be prepared to give full and objective consideration to any  reasonable amendments which Deputies might wish to put forward at Committee Stage. May I say that, because of an important appointment made before the arrangements for the long sitting today, I may have to leave the House before Deputy Molloy has finished his contribution but I am sure he will understand.
Mr. Molloy: First, I should like to put on record that the Fianna Fáil Party welcome the introduction of this Bill. I should like to give an assurance to the Minister that we will support the broad principles laid down in it. Of course, we welcome also the opportunity presented by the Bill to review the working of the 1963 Planning and Development Act which the House will agree was a major piece of legislation. Certainly, it was one of the most important pieces of legislation brought before the House over the past 20 years.
The Minister, in his concluding remarks, recognises that many of the provisions in the Bill, as presented, were difficult to draft and are of a complex nature. I welcome the Minister's assurance that he will be prepared to consider any reasonable amendments suggested by Deputies from either side of the House. I think he expects there may be some from this side.
The opportunity presented to us now to discuss the 1963 Act in full and the Minister's amendments to it should not be missed. We should give the 1963 Act a very thorough review and examination, considering very carefully the changes the Minister proposes. We all recognise that the 1963 Act did place a very great burden of responsibility on the elected members of local authorities and also on the officials working in those local authorities. That is greatly recognised. The House will agree also, that if it placed a great responsibility on those persons, it probably placed too great a responsibility on one person, that being the Minister for Local Government who, under the 1963 Act, was charged with deciding all appeals against planning authority decisions  on applications. Over the years I think the elected members and officials have performed their responsibilities under the 1963 Act with very great care and they deserve the thanks of the community for the work done.
There have been criticisms of the 1963 Act but, if it was lacking in anything, it must be the enforcement provisions which, as we know from experience, did allow unauthorised development to continue while proceedings were being instigated against the persons carrying out this unauthorised development.
As the Minister stated, the Bill proposes three main areas of change. The main one is the establishment of An Bord Pleanála which will undertake the Minister's functions in deciding on appeals and the strengthening of the provisions in the 1963 Act relating to unauthorised development. Then it amends various provisions in the 1963 Act which, in the light of experience, needed improvement or to be made more effective. We welcome all of these matters but we would like to go into them in much greater detail than has the Minister in his opening remarks. Sections 1 to 20, including the Schedule to the Bill, deal in the main with the establishment of the board, its powers and functions. Section 21 to 24 deal with the strengthening of enforcement powers and sections 25 to 36 with the various improvements of the 1963 Act which the Minister mentioned. My comments on Committee Stage will be confined largely to what I hope will be constructive criticism of the Bill as presented. Then, depending on the Minister's explanations of the matters raised by Members of the House— when he comes to reply to the debate —we will reserve our right to put down amendments. We do hope that the points we raise will receive full consideration by the Minister and that he will reply in full to them. The Bill is complex and the 1963 Act is a substantial piece of legislation. If we are to examine it here, any points we may raise deserve full investigation and consideration by the Minister.
I should like to start with section 4 subsection (1) of the Bill. I shall be coming back again to section 3 which, of course, is the main section. Section  4 (1) obliges the board to keep themselves informed of the policies and objectives for the time being of the Minister for Local Government, of planning authorities and any other body, which is a public authority, whose functions in the opinion of the board may have a bearing on proper planning and development. One could say that this is one of the most important sections of the whole Bill because, if this section is allowed to stand unaltered, then the House can question seriously whether the board the Minister proposes to establish will be an independent one, as the House is led to believe it will be.
The provisions in section 4 (1) are limited to the policies of the Minister, the planning authorities or other public authorities and are defined in the Bill. The provisions are weighted against such opinions as might quite properly be taken into consideration by the board. I am referring to opinions of private individuals and groups who concern themselves with proper planning and development, either generally or in a particular case. The obvious constant flow of information in regard to the policies and objectives of the Minister and public authorities will tend of necessity to condition the minds of those persons whom it is intended to appoint to the board. They may be influenced by the official view when they come to take decisions on appeals which come before them.
The 1963 Act allowed for representation by An Taisce and Bord Fáilte so that their views could be taken into consideration. This board are supposed to act independently and should be allowed to consider information from sources other than the official ones. There are many people interested who involve themselves at great cost in time to studying planning matters. They show concern for planning and development. They have been making a valuable contribution to planning thought in this country. There should be some way in which they could submit their views to the board. Their views should be considered in making decisions in regard to policy.
 Section 5 brings this matter a stage further and states that the Minister may give to the board general directives as to policy in relation to development and the board shall in performing its functions have regard to any directive under this section. While subsection (3) provides that nothing in the section shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the board is or may be concerned, it is, nevertheless, a watering down of the board's independence and allows the Minister in general terms to control the board without having any responsibility for the exercise of power by the board in any particular case. If we are setting up an independent board such board should be independent of the Minister. This section seriously affects that independence.
To illustrate this point, we have only to consider a recent directive issued by the Minister to local authorities which I claim authorised planning authorities to contravence their own development plans without the necessity of amending these plans or taking into consideration the proper planning development of an area. The Minister's circular received widespread publicity and created a major change in the policy now being operated by planning authorities in dealing with applications coming before them.
In the directive I have mentioned the Minister stated that as and from the time the circular was issued he and his Parliamentary Secretary were going to pay heed to the general relaxation of planning laws which were indicated in the circular. That was a detrimental step which dismayed those who have dedicated their lives to planning and to increasing their knowledge of planning matters.
If under this Bill the Minister is allowed to issue similar directives, which will have greater authority because they will be directives instead of circulars, this will be detrimental. A person acting on the board will be restricted in his degree of independence if he does not comply with the Minister's directives. His position might be in jeopardy. The board should be completely  independent of the Minister provided they are carrying out the functions of the Local Government (Planning and Development) Act as amended by this Bill.
The independence of the chairman is also a matter for serious consideration. The position of the people who will be appointed members of the board is very important. In exercising their duties they should be allowed to act independently.
Clause 6 of the Schedule is of considerable importance. It is provided that the chairman shall be a whole-time appointment. There must of course be procedures for removing the chairman from office, but I would suggest that they should be confined to reasons such as ill-health, stated misbehaviour or incapacity of some kind. This would be in line with the constitutional provisions for the removal of judges. It is hard to limit the scope of the phrase in clause 6 of the Schedule as “whose removal appears to the Government to be necessary for the effective performance by the board of its functions”. This decision of the board, having regard to the duty of the board to have regard to the directives issued by the Minister, may preclude the chairman from taking an independent line which might be contrary to the ministerial view. The chairman might be deterred from doing this by fear of removal under clause 6 of the Schedule. I accept that there is the safeguard which provides that the Government shall cause to be laid before each House of the Oireachtas a statement in writing of the reasons for the removal. As we know, by the time such statement is laid before each House of the Oireachtas the decision to remove the man will have been taken. There is no provision in the Bill for the annulling of a Government decision by the Oireachtas. The same applies to the ordinary members. They come under clause 10 of the Schedule.
My points raise some doubts about the degree of independence exercisable by the chairman and ordinary members of the board. The appointment of  the chairman is a Government appointment while the appointment of each ordinary member is a ministerial appointment. It is extraordinary that there are no terms of reference what ever as to the qualifications required If the present attitude of the Government in regard to appointments is carried through, these positions are likely to be filled by supporters of the Coalition Government who will have even less independence. We might consider it preferable to continue to have the Minister with the functions which he had under the 1963 Act rather than have a Fine Gael hack appointed to do the job; at least we can say that the Minister is answerable to the Oireachtas, but if some gentleman who is currying favour with the Fine Gael Party is appointed to carry out these important functions without necessarily having any qualifications whatsoever for the post and being answerable to nobody——
Mr. Molloy: I am not mentioning any persons. I do not know whom they would have in mind, but I submit that it is a weakness in the Bill that the person to be appointed chairman or ordinary member need have no qualifications whatsoever. Even in the County Management Acts it states that the county manager at least shall have a good standard of education. It does not even include that decent requirement in the Bill. There are various ways in which the Minister can improve this Bill. I wish to refer Deputy Begley——
Mr. Molloy: ——the Parliamentary Secretary, to a Bill which was brought in by the Fine Gael Party when in Opposition, which sought the establishment of an independent board  and that the appointments to that board would be through the Civil Service Commission. I think it even specified that the person should have certain professional qualifications before being considered for the appointment. The acceptability of this new board, their independence and the confidence that they will make fair and honest decisions, will depend on how qualified the persons to be appointed are for the job and the way they are appointed. I do not see how the Minister can justify leaving this provision so open as it is at the moment, and I would ask him to consider an amendment setting out that at least by regulation the Minister would be obliged, following the passing of the Bill, to draw up qualifications for these positions. We might accept that, but we would want greater assurances than are contained in the Bill at this time. Clause 2 of the Schedule reads:
Again we would like to question the wisdom of allowing a board to be established which could, in fact, consist of only three members as the Bill stands. One of the over-riding considerations in amending the 1963 Act must be the speeding up of the whole planning appeal process. We do not believe that a board of three will be adequate to deal expeditiously and in a fair manner with planning appeals if it is to be confined to such a small membership. We also see a difficulty should one member of the three-member board become ill or be absent for some reason or other, that the two members then present would merely be approving of each other's recommendations. We do not consider that the Bill should allow such a situation to happen and we should guard against it. It must be accepted by the House that it will happen quite often, when there is a three-member board, that all three members will not be present for one reason or another. In that situation there would be two members who would be swopping each other's recommendations and proper and  thorough consideration might not always be given in such circumstances. The only way to overcome that is to have a larger board of four ordinary members and a chairman.
There can be many problems with a small board, one of which is that there could be one personality completely dominating the other two and his thinking could have an enormous influence on all decisions. I do not think it would be practical to suggest that the members of the board should be changed after a short period. If you wanted to attract the right calibre of person to undertake this onerous work, then there must be some guarantee of tenure of office; there must be some constancy in the position being offered to him. On balance, I think that would be preferable, but in order to avoid the situation in which one person would dominate a small board, as those of us who have had experience of meetings know can happen, I suggest the larger board.
It is not provided in the Bill that the Minister's directives should be issued in writing to the board. We believe they should be placed before the Houses of the Oireachtas before being given to the board, that they be general directives of policy and not related to specific matters or to specific appeals. These directives which the Minister will issue will be of great importance and their contents should be known to the general public, to persons who are interested in planning applications or in appeals current at the time, or to persons who plan to make applications and who are trying to find out what exactly is the public policy in regard to planning in any particular area. There should be full public knowledge in relation to planning policies. Section 8 (2) reads:
This should be amended to include: “and the Minister shall lay before the Houses of the Oireachtas all such request in writing together with the replies thereto”. What I am suggesting  is that all such requests under section 8 should be in writing and that these and the replies received to them should be laid before both Houses for the very same reason.
Under section 10 there could be a situation in which part-time or consultant services are availed of. I think that these should, at all times, be accompanied by a statutory declaration (1) that the person or persons involved are acting impartially in the interests of and to the instructions of the board; and (2) that no vested or other interest, past or present, shall prevent such impartiality. That guarantee might be considered by the Minister.
The scheme of the Bill is embodied in sections 13 to 20. They deal, in the main, with the changing of the appeal system. The effect of these sections, as we know, is to transfer appeals from the Minister to the board. As I stated at the outset, we support this principle, though we recognise that it still does not overcome some valid critisisms of the 1963 Act. I should like to give one example: the person who conducts the appeal is not the ultimate decider. In other words, a person, at present the Minister, who has not heard the case and has not had regard to the demeanour of witnesses or the effectiveness or otherwise of the cross-examination of witnesses, should not as a matter of natural justice make a decision based on writing furnished to him by other persons.
The point I am making is that that has been used as a criticism of the 1963 Act and the appeals system laid down under it. In this Bill we are merely transferring that from the Minister to a board. Still, that criticism could be valid. I know it is difficult to see how this criticism could be overcome and all I am asking is that the Minister, who must have given some thought to this and fully considered it before finalising the Bill which is now before us would deal with that aspect of the criticism in his reply.
I should like to ask the Minister whether section 13 includes an application under section 26 (3) of the 1963 Act. That section provides for the  Minister's consent to the granting of permission for a development which would materially contravene a development plan. As the Minister has said, the Bill is fairly complex and, of course, the 1963 Act is a substantial piece of legislation. I should like him to clarify that the Bill confirms that this function still lies with the Minister. If that is so I hope the Minister will tell us.
At this stage I wish to pose a question to the Minister. Would he consider putting a time limit on the period allowed for deciding planning appeals? The period could be three months or four months and that might seem reasonable. We are anxious by this Bill to improve the appeals structure and to provide a system which will allow for early decisions on planning appeals. This has been another major criticism against the 1963 Act—that it has been holding up development, that it has been difficult to get decisions from the Minister and the Department. The Minister has stated that he is short of qualified planners, that these people are scarce and that he has not been able to deal as expenditiously as he would have liked with the number of appeals coming before him. All Ministers have been concerned about this delay in the issuing of appeals. All have tried to take special steps to remedy it. It presents a big problem.
I submit that when it was considered valid to include a time limit in stating a period within which the local authority were obliged to grant permission— the two month period—then it might also be valid to include a limit on the time available for making appeals. I ask the Minister to consider that, why he has rejected it and if he would reconsider the whole matter and include a section stating a time limit. It would act as a spur and might give some assurance to persons that their appeals will be dealt with fairly quickly.
I should like the Minister to tell us how many cases have arisen under the sections of the 1963 Act which are covered by section 13 of this Bill, in particular sections 29, 48, 76 and 85 of the 1963 Act. I suspect there were very few but I should like to know how many.
 Before I leave the question of the board and the appointment of members, it seems from the explanatory memorandum and from the Minister's opening statement that the real intention behind the Bill is that the Minister will appoint civil servants to be the ordinary members of this board. If he does that and if he insists on maintaining a minimum of three members on the board, this again will greatly limit the independence of the board. If, however, he agrees to our proposal for a five-member board, four of them ordinary members, he could then safely appoint a civil servant—one, or possibly two. This is an area we will have to go into in much greater detail on Committee Stage. There is the whole question of terms of reference and the qualifications of those persons or whether it is to be merely a shifting from the Minister's back on to civil servants who will be acting as members of the board.
It is a valid argument to say that to ensure the smooth introduction of this new planning appeals system one must avail of the services of staff who are accustomed to this work and who have been involved in it and who can be used during a transitional period. Some cynics might cast their eyes back to previous similar statements where this good intention actually became a practice in the long run. I do not think the civil servants themselves would wish to be the board as constituted; there must be outside persons from the community, fully and properly qualified.
This, of course, raises the whole question of the type of people the Minister will attract, really well-qualified people to undertake this work. The Minister has made no mention of the type of salary that will be available. Of course it would not be normal to go into such details as that at this Stage, but I would suggest to the Minister that if this system is to be made to operate successfully he will have to pay substantial salaries to those persons, that he will have to look on their appointment somewhat similarly to the appointment of justices. Those people will have to be  allowed to act independently and will have to be paid accordingly. I trust the Minister will not be niggardly in this matter. It is the end result that will count and we want the best qualified people appointed to these posts. Section 14 is one of the shortest sections in the Bill and yet is one of the most important. It states:
I want the Minister and the Government to know that we have serious reservations about this section. In the first place, it cuts across section 82 (2) of the 1963 Act which provides that regulations shall be made under the section providing for oral hearings of any reference or appeal in respect of which an oral hearing is requested by any person. The radical change that is proposed here gives the board the right to refuse an oral hearing. I am aware it has been held that such a power cannot be exercised in an orbitrary way, but one may ask what is the need for the words “absolute discretion”, unless it is to try to cut down the number of oral hearings? One can reasonably suspect that that is what is behind it. Indeed, the Minister was honest enough in his opening statement to spell it out—that that is the intention behind this section. On their face value, the words could be deemed to contravene certain articles of Bunreacht na hÉireann. Article 40.1 states:
I submit that it can be held that the right to appeal is a property right and that this section which enables the  board to discriminate between one citizen and another brings about a situation where citizens may be held unequally before the law in respect of their property rights which the State in the Constitution binds itself to vindicate. I suspect the Minister will urge that this section is designed to deny a right to an oral hearing in respect of frivolous or vexatious appeals. When one looks at the Explanatory Memorandum this is what it states. The explanation given there dealing with section 14 states:
This section gives the Board absolute discretion to hold an oral hearing of any reference or appeal. This will help the Board to deal expeditiously with cases, particularly where an appeal appeared to be ill-founded or vexatious... The Act of 1963 required the Minister to accede to the request of any party to an appeal for an oral hearing and it seems clear that the provision was being abused in certain cases.
Most people will agree that it would be reasonable to hold that it would not be unconstitutional to deprive frivolous or vexiatious litigation of the assistance of the law but as the section stands it seems to go much further and, indeed, much further than any other provision dealing with appeals that one can find in legislation passed by this House over the years. It goes quite far; the House is being asked to accept it but we question it and express serious reservations about it. We look forward to hearing a fuller explanation from the Minister of the reasons for it.
I suggest that the matter could be easily dealt with in the same way as is provided by the Summary Jurisdiction Act of 1857, as amended by section 51 of the Courts (Supplemental Provisions) Act, 1961. These provisions relate to an application to a district justice for a case stated. Section 4 of the 1857 Act provides that if the justice be of opinion that the application is merely frivolous, but not otherwise, he may refuse to state a case and shall, at the request of the applicant, sign and deliver to him a certificate of such a refusal. We have serious reservations  on section 14 as it stands and we ask the Minister to consider seriously the points we have raised. If he indicates his willingness to amend the section we can assure him of our full support. If the amendment we suggest to section 14 is accepted it would remove the necessity for the word “vexatious” in section 16 which comes later on.
Under section 15 the board may take into account... I suggest that the word “may” in this context should be changed to “shall” because the whole basis for the institution of the board is the proper planning and development of the area concerned and it is considered that this should be central to the board's deliberations. I fail to understand why the softer word “may” is used rather than the more positive one obliging the board to take these necessary matters into consideration.
I suggest that the absolute time limit in section 20 is undesirable and I should like the Minister to consider whether the board should be given a right in a proper case to extend the time for making an appeal in the interests of justice. This is made all the more important by the fact that a person other than an applicant is not entitled as of right to notice of the making of the decision to grant planning permission but, notwithstanding that, he has under section 26 (5) (c) (ii) of the 1963 Act a period of 21 days to make an appeal beginning on the day of the giving of the decision which may or may not have been communicated to him. I ask the Minister to consider granting the board discretion to extend the time so as to enable an appeal to be brought. An amendment along these lines would require much thought but I am sure the Minister would agree—I am not in any doubt as to the difficulties my suggestion could create in trying to meet it by way of sections in the Bill —that it is a point that should be considered because one can think of many cases where it would have been more just if somebody had the authority to extend the time limit. No provision was made for it. I do not expect such a provision would be availed of very often but it should exist.  In that particular matter I would give absolute discretion to the board.
The section deals with the extension of the time in which an appeal or an application sent by letter shall, in fact, be deemed to have been received. This needed some tidying up. There was a good deal of confusion in the early days of the operation of the 1963 Act and it is well to avail of this opportunity to clear it up. The Minister's Explanatory Memorandum in relation to this section states:
We are all aware of the appallingly bad postal service available from time to time in certain parts of the country. Generally it is fairly good but there are occasions when the post is not delivered regularly. I have had cases of the post being a week or ten days late. There is also the special position of persons living on islands where the post goes only once or twice a week, depending on the weather. No provision is made for such persons. I have had interesting cases because there is a number of islands in my constituency and in making representations for the people on them, living and working with these people over the years I have come across quite a number of cases where these time limits on acceptance dates for applications for planning permission or fishing licences have proved very awkward, when the boat did not travel and the person concerned was unable to go to the local post office or put a letter in the letter-box as is done on the mainland, and where we expect postal collection within 24 hours and delivery within 48 hours. These people have been omitted from all the legislation up to now and I am suggesting there should be some proviso to cover people living on islands who do not have regular postal service.
Even those who live on the mainland and enjoy 24 or 48-hour delivery service know that this service is not constant. It is the aim of the Post Office and they achieve it in most cases but there are occasions when they do not provide this excellent service. In such circumstances the three-day  limit might be a bit rigid and I suggest that five days after the closing date if the application comes by post should be acceptable, an extension of two days in relation to the matters dealt with under section 20.
Under section 21 where a developer fails to provide proposed public open space, the section says that the local authority may purchase the open space and that an arbitrator can make a nil award unless it is shown that the value of the land has not been or will not be recovered as a result of the development. I consider that this device will be very difficult to operate if, in fact, not impossible. It will certainly be very cumbersome and probably ineffectual. My immediate reaction to it, I am sorry to say, is not very encouraging but perhaps I can be reassured by the Minister who may have a more detailed explanation to give of these matters than he has so far given. The amazing thing about this section is: why should any local authority be obliged to purchase open space when a developer provided in his application plans that he would supply such open space within the development? And the developer not having provided it, the Minister, to overcome that difficulty, is merely allowing a local authority to purchase the public open space from the owner, the developer.
The costs of purchasing and any costs arising from the development of the open space, such as laying it out in an orderly fashion, can be deducted from the purchase cost. I say “Thank you very much” in a sarcastic way for the powers given under this section. I do not see why the ratepayers should be obliged to contribute to the purchase of open space which it was intended the developer should provide. I cannot understand the logic behind this. There must be a reasonable explanation for it. One can see a situation where a local authority if they proceed under this section will be left with something which is of no value. Open space as such has amenity value but no market value. It is not an asset from which the community, or the local authority  representing the ratepayers, can benefit in any way other than by its recreational and amenity value. The local authority are being asked to spend the ratepayers' money acquiring it. They can never resell it. It is a wasted asset. The onus was on the developer to provide this facility in the first place. Maybe I am misreading the section, but I demand a fuller explanation of section 21. Many persons whom I have consulted are puzzled by this section and cannot understand the thinking which would oblige a local authority to purchase open space which the developer should have provided. I find this extraordinary. It does not seem to be much of an improvement on the existing position.
I should like to suggest a way to plug this loophole in the 1963 Act, a loophole which has caused great difficulties and many headaches for communities and public representatives who had to deal with the problems. A condition should be included in the planning permission that a security bond be obtained by the developer to be held by the local authority until such time as the authority are satisfied that he has provided the amenities indicated in his plans. There are provisions in the 1963 Act which enable local authorities to include such conditions in planning permissions. I submit that unless this type of condition is included as a condition precedent, it has no strength, it is difficult to enforce and that developers can slip from under it and get away with nondevelopment of open space as required by the permission they obtained.
There can often be a condition requiring agreement between the developer and the local authority as regards the disposal of effluents, for instance. If such a condition is placed in a planning permission given on appeal, then that condition should be condition precedent, the developer should be obliged to show to the local authority, before planning permission would have been deemed to have been granted to him, that he had in fact complied with the condition precedent. The situation at the moment is that  the Minister is granting permissions which contain conditions which oblige the developer to reach agreement with the local authority on a particular aspect of the development. Normally this is to do with sewerage, or water, where it will be laid, where effluent will be discharged and arrangements for disposal of sewerage. Once permission has issued, even though it includes such a condition and the developer has waited the prescribed period of 21 days, the permission is then deemed to have been granted. From that moment he is authorised to go into a site and commence development even though he has not yet reached agreement about the condition contained in the permission he got stating that he must consult with the local authority and reach agreement about the disposal of sewerage, and failing agreement that he can go back to the Minister and appeal.
Permissions with such conditions attached should not be deemed to have been granted until these conditions have been complied with. In other words, in law they should be deemed conditions precedent. I strongly urge the Minister to consider this point. It may be said that what I am suggesting will introduce further complications into the planning field. It might be claimed that it might act as a deterrent to development, but I submit that at least we will have orderly development. We will not have the position where conditions are included in name but in fact developers can proceed without paying much heed to them at all. This is happening to the open spaces. The local authority should seek an insurance bond of sufficient security and the developer should show that he has obtained that bond before permission is deemed to have been granted—in other words, before he is entitled to go in and develop. If that is done the many evasions of planning conditions will be ended. We expected that the amendment to the 1963 Act would deal fully and adequately with this problem which has caused many headaches to residents' associations because of the non-completion of their estates, but the section as worded here does not deal effectively with that problem.
 Section 22 deals with the issuing of a warning notice. This is new. Would the Minister spell out the difference between a warning notice as proposed under subsection (2) and enforcement notices which one can apply under the 1963 Act? In the Bill, the procedures for serving warning notices and the penalties for ignoring them are set out in relation to the likely development in contravention of the Act—unauthorised land use, likelihood of removal or damage of trees, features or structures during development. This is a very good thing. I accept and welcome the warning notice but should like clarification of the difference between it and the enforcement notice. I suspect there must be some level of duplication between the effect the warning notice has and the effect the enforcement notice has. The enforcement notice is primarily to deal with anticipated unauthorised development. It seems to be designed to overcome a situation where there is a condition in relation to trees and a person goes in overnight and knocks down all the trees. There is no way in which the local authorities can then restore those trees. By anticipating that he might do such a thing, a warning notice can be issued which will involve him in substantial fines if he touches the trees. Of course this refers also to general developments, protection of amenities and any worthwhile features. This is welcome and the Minister has our support.
Section 23 states that any person may make application to the High Court to prohibit unauthorised development. The Fianna Fáil Party welcome this wholeheartedly. We feel that difficulties which were experienced over the years will now be overcome and one of the major loopholes in enforcing the 1963 Act will be closed.
Section 24 deals with withdrawal by planning authority of certain notices and cancellation of relevant entries in the register. I should like the Minister to give us some examples of what he has in mind.
Section 25 is a major section which provides for the first time for what the  Minister called the withering of planning permissions. I should like to query the Minister on one point. I do not think that in fairness and in justice it is proper to apply this retrospectively. One can imagine a situation where a person received planning permission, quite legitimately, four years and 11 months before the coming into operation of this Bill and one month later the planning permission dies.
Retrospective legislation is something this House has been anxious to avoid wherever possible. When introducing benefits very little retrospection is applied. When grants are increased we are not inclined to give retrospection. There may be a good reason why a person who got planning permission has not acted on it, also there will be cases of people who have received planning permission and have not acted on it for no good reason. Such cases cause difficulty in drawing up development plans. It is very frustrating when drawing up development plans in towns and cities to have areas for which planning permission has been granted but has not been acted upon and the planner does not know what is to happen in those areas. He cannot decide whether it will be open space, whether it will be for commercial use or residential use. Planning permission has been granted. It is a black spot and it inhibits the planner. I agree that this is a problem and it is proper that we should have legislation to deal with it but I submit that it is unfair to make this legislation retrospective. The retrospective aspect of this section is open to serious question. I would ask the Minister to reconsider this.
Section (2) (b) relates to partially completed developments. The question of a completion certificate comes in here. As I read the section, the planning authority may issue a completed certificate and in the case of a dispute the developer may appeal to the District Court. Appeals must be decided by a district justice. I should like the Minister to explain why the board should not decide such cases. As I read the section, it seems to indicate that if a developer receives  planning permission for 700 houses and proceeds to construct at the rate of 100 houses per year and if at the end of a five-year period he has only 500 houses completed planning permission for the remaining 200 dies. I wonder whether that is wise. The permission has been granted and obviously the developer had good intentions, had acted on the permission and the only inhibiting factor was the capacity of his organisation. It would seem to me that that permission should not die at the end of a five-year period. We will go back to that later.
(1) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings against any person liable to be proceeded against pursuant to section 22 of this Act or in respect of a contravention of section 24 (2) of the Principal Act may be commenced—
I submit that quite a number of people will consider this section, as worded, undesirable. We have some doubts about it. It must be remembered that in the main persons who will be seeking permission to develop will be persons anxious to develop their own property and that they are in quite a different position from persons who would be seeking legal redress in the courts. The matter is made  worse by giving the Minister power to make regulations which may provide for the payment or lodgment with the board of prescribed fees or deposits by appellants. This seems discriminatory and without legal justification. I think it is going a little too far. Can the Minister give any precedent for this or can he give any explanation of what would happen the lodgment of fees or deposits? I do not know whether the Minister overlooked this or whether we are to assume where the money goes. I suggest to the Minister that there may not be any great necessity for this section when one considers that section 17 of the Bill provides that:
(b) in case the decision of the planning authority is confirmed on appeal, or where the decision is varied on appeal, if the Board in determining the appeal does not accede in substance to the appellant's grounds of appeal, the Board, if it so thinks proper, may direct the appellant to pay—
(ii) to any of the other parties to the appeal, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the costs or other expenses occasioned to him in relation to the appeal.
 When one reads section 28 in the Bill it is clear that no such restriction is built into it. I submit that it is wrong to try to suggest, as is suggested in this document, that these fees will only be charged to cover the cost of public notices which may, in the future, be inserted by the Planning Authority en bloc, something I agree with but the Minister should have been more specific in the section in the Bill. If he was seeking authority from the House to charge a fee to persons making application for planning permission and the purpose in charging that fee was to cover the local authority's costs in inserting a public notice in a newspaper of the person's intention to apply for permission then he should have said so in the section instead of giving the board overall authority to charge fees or demand lodgements or deposits for persons making application or persons making an appeal without any limit, without specifying any circumstances in which it could be done.
I strongly favour the idea of requiring the planning authority to insert the public notice. For far too long we have tolerated a situation where persons anxious to keep their intentions in relation to development as quiet as possible, away from persons who may be interested in it and who may prove an obstacle to them by way of objections, third party or otherwise, try to proceed surreptitiously, inserting applications, sometimes abusing the Irish language, in a paper which may be deemed by the local authority to be circulating in the area but which is not normally the paper purchased by the majority of people living there. In western parts of the country The Irish Times does not have the same circulation in Connemara as The Irish Press or The Irish Independent and persons anxious to proceed in a sly way with developments have been known to put their advertisements in The Irish Times in Irish and it is then inserted in some obscure section of the paper in the hope that few people, if any, will see it.
I am against these dodges and the Minister should have spelt it out quite clearly that in future the planning  authorities themselves would be required to insert such public notice in chosen newspapers circulating in the area and that they would put in these advertisements en bloc week after week, and that any development taking place in that area for which permission is required could be easily found on a certain page where they would all be published together. To cover the planning authority's cost of inserting such an advertisement the person lodging the application should be required to pay a fee of £2 or whatever the advertisements are costing. There should be no penalty involved, as is suggested in the section, whereby fees are charged to persons making application for planning permission. We do not like this section and we will probably oppose it when it comes before this House on Committee Stage. We hope the Minister will reconsider this because we feel our ideas are better than those contained in the section.
I should now like to deal with section 32 (a). In my view this change would mean that a person's entitlement to compensation following a planning refusal could be substantially diminished, particularly if the usual long time lag takes place between the time of the decision and the arbitration award. Such things as a change in zoning between the time he receives the decision and the time when the arbitration award issues could largely affect an applicant's entitlement to compensation. We have the classical case, especially in the Dublin area, with the Dublin Corporation, in par ticular, where there has been much dithering and doddering about the routing of proposed roads in the future. This has seriously interfered with planning in this city, has contributed to inflation of property values in Dublin and has frustrated the development plans of quite a number of com mercial enterprises, and private citizens in and around the city. I am referring to those involved in commercial business in a big and small way. I have practical experience of what has been happening.
I know of cases where under Part 5 of the 1963 Act claims for compensation have been made and awards have  been issued of up to £40,000 as a result of the planning authority's refusal to grant permission because they were reserving the area of land for some particular purpose. The person who made the appeal for compensation is successful but two or three years later the planning authority write back and inform the applicant that they do not now intend to proceed with the use which was the reason for refusing permission originally. The applicant is told that he can now proceed even though in the meantime he has been paid compensation on the basis that the local authority had informed him he could not proceed. Most of this difficulty is being created by the indecision of the planning authorities in Dublin in relation to the location and routing of the future road systems for the city. Much of the planning that has gone on and the decisions made on it have been largely impracticable.
I suggest the Minister take an interest in this matter. In laying down routes for roads and plans for future road widening the authorities should as far as practicable pay some heed to the practicalities of the proposals which they are adopting. The experience has been that decisions made one week might be changed two years later and that a decision to hold land now because it is designed as an area through which a road will go at sometime in the future may be changed in two years' time. That area is then open again for development. That is of significant importance under section 32 (a). It is a matter which will not involve the Minister that much because he does not involve himself in the actual arbitration awards but we should be anxious to see justice done for all. It can affect large businesses and small business concerns.
I know of cases where the corporation have zoned an area as a route for a road and the business houses in that area have run down as a result but claims for compensation have not been accepted by the corporation on the basis that it was long-term planning. The corporation do not place a CPO on property because they do not  require it for some time. The corporation are killing certain areas in the city and putting small businesses to the wall because of the decisions of the planning authority. In some of these cases after two years have elapsed the problem disappears, the corporation change their mind and decide against putting the road there. During that time the business has been cripped.
Would the Minister consider making it obligatory for persons who have received planning permission to post a copy of the planning permission on the site? It could be called a building permit and would facilitate inspections, especially of unauthorised development. I have seen such a system in operation in other countries. A building inspector or planning officer visits all building sites and the building permit must be posted by the developer in a prominent position where it can be inspected. The building inspector or planning officer determines whether the conditions of the permit are being complied with. Of course, in the first instance he ascertains whether there is permission to build. Although we impose a number of restrictions on the granting of permission we do not seem to have much provision in our planning Acts for the inspection of developments after planning permission has been granted. This is an area in which there is a need for some tightening up. I am not anxious that an army of inspectors be sent out to survey the whole countryside but there is a need for provision in the Act for the control and inspection of development. At present we are relying mainly on interested local residents to bring forward complaints regarding non-compliance with conditions attached to permission to develop. Apparently there is no real machinery for inspection by the planning authorities.
Under the Public Health Acts a person is obliged to obtain a certificate of satisfactory completion before a dwelling can be occupied. Since that is deemed necessary under the Health Acts why should it not be necessary also in relation to planning Acts? Many of the complaints arising from  planning development and building generally may not all be related to the Planning Act but to standards of construction. This stems from the fact that we do not have a building code in this country. Sections 86, 87 and 88 of the Principal Act were never adopted. This is an aspect of building that the Minister might refer to when he is replying. The Act of 1963 provided that national building regulations and established by-laws would apply uniformly throughout the country but that provision has not been put into operation. Many of the complaints that are made result from the different standards that are applied. There are building bye-laws in Dublin, Cork, Dún Laoghaire and Galway only. Therefore in all other places local authorities are entitled to decide on the standards to be applied. This area, too, needs reviewing.
Section 9 of the 1963 Act does not impose any real obligation on the owner of a development to answer a notice issued under that section. I am referring to a notice asking him to state his interest in the premises concerned. There should be a clause enabling the local authority to assume that the person on whom the notice is served is the owner until he proves otherwise. There have been cases where prosecutions under the Planning Act have been lost on technicalities because of the failure to show ownership, although section 9 provides for the issuing of a notice demanding that a person shall state his interest and so on and that he must reply by a certain date or otherwise is liable to a fine in the region of £20. A local authority are faced with a weak case in court if they have not been able to show that they know who is the owner of the property.
There is provision in this Bill for the appointment to the board that is proposed by the Minister of a chairman and a minimum of two members. We suggest there should be a minimum of four members. So far as I am aware there is no provision for the appointment of a vice-chairman or somebody to act in the absence of the chairman. Will the board be enabled to split up so that there could be  two sub-committees in operation, each performing the functions of the board? This is a matter for Committee Stage, but perhaps, in his reply the Minister should throw some light on this aspect. Regarding the personnel of the board, the Minister should appoint only those with recognised qualifications and who have had some years experience in their own line of work. For instance, a qualified planner with at least ten years' experience would be a suitable person to appoint to the board as also would a qualified engineer with the same length of experience or an architect or a civil servant who had gained experience in the Department. That would be the type of board we would like to see instituted, with a chairman who would be a person of great repute. The remuneration of these people would need to be substantial so as to ensure that they were acting independently and that they would not be tempted to give up the job after a while. The position should be as attractive as possible so as to avoid frequent changing of personnel.
As the Minister is aware, while we were in office we were working on a Bill that was on lines similar to the proposals now before us. We intended providing for the establishment of a board and for removing from the Minister for Local Government the responsibility of having to decide on planning appeals. We intended—in fact it was provided in a Bill introduced by a former Minister, Mr. Kevin Boland—that the Irish language and the Gaeltacht areas would be given special consideration. We intended including that section again in whatever Bill we would have brought before the House. I am surprised that the Minister has chosen to drop that section. I hope he has good reasons for doing so. Much of what we hear from Government Ministers in relation to the Irish language, to the Gaeltacht and to Irish culture in general is very depressing. If the dropping of the section I have referred to is a further indication of the downgrading of the importance of the Gaeltacht areas and of the Irish language this step is  to be regretted and I would ask the Minister to reconsider his decision. We intended providing that, notwithstanding sections 26, 27, 30, 31, 32, 33, 35, 36 and 37 of the 1963 Act, regard could be had to the special interest of the Gaeltacht and of the Irish language.
Mr. Molloy: I had expected that, coming from a Gaeltacht area and representing a constituency which includes a Gaeltacht area, the Parliamentary Secretary would be in sympathy with the point I am making. As a member of the county council he must have had similar experience in dealing with the developments in the Gaeltacht. Under the 1963 Act no special provision could be made for a Gaeltacht area. The intention was to make special reference to the Gaeltacht in the Planning Act.
Mr. Molloy: There is nothing in the 1963 Act which allows that. This was being overcome by the Bill we intended bringing in. We agree largely with the broad principles of the Bill the Minister has brought in but we regret he has chosen to drop this particular aspect of the Bill we were working on. We will probably put down an amendment on this and we can go into it in detail on the Committee Stage. There are cases which can be quoted of frustration by Planning Authorities of development proposals for Gaeltacht areas. Gaeltarra Éireann have experience of this. There is a necessity for a section such as we propose which would overcome these difficulties and would ensure that planning authorities would have to give special consideration to a proposed development in a  Gaeltacht area. They should not be allowed to make rigid interpretations of development plans, as drawn up under the Act, which operate to the detriment of Gaeltacht areas. I know the Minister can correct some of the wrong decisions of planning authorities in relation to applications in Gaeltacht areas and also in other areas but we do not think it is adequate that one should have to appeal them and go to the Minister or the board when they are established. There should be an obvious commitment in the Bill in relation to this matter.
It would be interesting to hear from the Minister an estimate of the cost of administrative and technical staff engaged solely on planning in his Department so that we will have some idea of what the appeal system costs. Much of the expense cannot be isolated, but I should like to know what the estimated figure is.
Why has the Minister not included agricultural buildings in this Bill? People expected that when an amendment of the 1963 Act was introduced those clauses in that Act which enabled exemption to be made from the provisions of the Act for agricultural buildings would not be included in this Bill. Quite an amount of agricultural activity has led to serious water pollution, especially in the midland counties. The reason for this is that some of these agricultural buildings and industries were allowed to be constructed and to operate without any restriction under the 1963 Planning Act. If the local planning authorities had the power to control them by including conditions for disposal of effluent and the treatment of it much of the pollution of the water that has taken place might not have taken place at all. Whatever about the mays and the mights of the past, we expected, and I think a substantial section of the community expected, that in the amendment of the 1963 Act these buildings, especially the dangerous ones, would be included. The Minister will probably answer that he has a special arrangement with the Department of Agriculture and Fisheries that, where they consider an agricultural building being considered for grant  purposes may because of its omissions in some form or other be a pollution hazard they may require the applicant before the grant is paid to get planning permission. I do not consider that is adequate.
There are quite a number of agricultural developments which can proceed without the grant. The people deciding to erect them may decide that the grant is of no benefit to them and that they could not get planning permission if they applied for it. Some of those people might feel it is better to skip the grant and slap up the building. That loose position still obtains. I expect the Minister will inform the House why he has omitted agricultural buildings from this Bill.
I realise that this is an agricultural country, that over 30 per cent of our community derive their income solely from agriculture and that the amount of agricultural activity is enormous. If we were to include every haybarn, every cow byre and shed under the Planning Act it would add substantially to the work. The Act would then become unworkable. I appreciate that argument but I think there is sufficient ability in the Minister's Department to devise some section in this Bill which would control the dirty agricultural developments, particularly those in the pig industry and the chicken rearing, the location of silage pits and the disposal of slurry. The Minister could have specified certain agricultural buildings to be included under this Bill. I hope we can have a fuller debate on this on Committee Stage.
I trust the Minister will give some consideration to the points I have made. We wholeheartedly welcome the proposal to transfer the power to decide planning appeals from the Minister to a planning board. We will have a debate on the construction of that board but we agree to the principle of it. As the House knows, we decided to introduce similar legislation when we were in Government. The Parliamentary Secretary said I had plenty of time to bring it in but if he does a little study in the Department he will find that much of the delay was not caused by me, the Parliamentary Secretary or the Government.  The Minister indicated in his statement that many of these miscellaneous provisions were difficult to draft and because of their complex nature he suggests that it would be better if we left detailed discussion of them to Committee Stage. The Minister must accept that the drafting was largely done while this party were in office. I was very anxious when I was in the Department to bring this Bill forward. Anybody who wants to make honest inquiries will find that the drafting was well advanced. It was with the parliamentary draftsman for quite a long time. I am not interested in that now. I am interested in the Bill before us which generally has our approval.
Mr. O'Brien: Like most people in this House I welcome this Bill. We all know that during the past few years there has been a great need for changing the 1963 Planning Act. At the time it was passed it was a good Act but things have changed since then. One of the fine things in the present Bill is the appointment of a planning board. The Fine Gael Party advocated this when they were in opposition. In 1969 they introduced a Bill in the Seanad which was not accepted by the Fianna Fáil Government. They wanted to keep their finger in the pie. I am glad they are now supporting the appointment of this board. There has always been a certain amount of unease in the public mind regarding decisions made by politicians. They may have been made in good faith but the fact that they were made by politicians was regarded as suspect.
I believe this will take a big responsibility away from the Minister. The Fine Gael Party always advocated the need for a board because we have seen some very strange decisions made. My constituency, the postal area No. 4 of Dublin South East has been under considerable pressure for some time. Were it not for the residents' association and other interested bodies, much of that area would have been lost for housing.
There was one case where a gentleman  not unknown to this House applied to have a house in a good residential area converted to office use. The local authority rightly turned down the application and my information is that the Department's officials were against it also but the Minister gave permission in an area that was zoned for housing. This kind of behaviour makes the people suspicious because it enhances the value of property. In the case I have mentioned the property appreciated in value from £25,000 or £30,000 to £80,000. I am not implying that there was anything going into anyone's pocket. I am merely saying that because of influence a change of zoning was made and as a result some people got a lot of money. That is the reason there has been grave suspicion with regard to planning.
The Government will appoint a chairman to the board. I hope they will appoint a judge. The Judiciary have always been above reproach and people would be reassured that unbiased decisions would be made. A judge should be seconded for a period; in other words, we could have a rotation of judges every few years. This would ensure that new ideas would be presented by the various judges rather than appointing one man saecula saeculorum.
The board should be a fairly large body. I am not too happy with the number specified in the Bill for ordinary members. I am not saying that all of them should sit on the board all the time but various planning appeals may call for different expertise. I do not think it is a good idea to have someone from the Department. If a man is appointed for two or three years he knows he will be returning to his Department afterward and this may inhibit him from making certain decisions. Ordinary members should be from outside the Department. They should be senior planners or developers and they should be fully informed on all matters relevant to their work.
I agree with section 4 where it states that the board, so far as may be necessary  for the performance of their functions, shall keep themselves informed of the policies and objectives of the Minister. This is important. The board must have knowledge of draft development plans, of national planning and of the intentions of the local authority.
Section 5 states that the Minister may give the board general directives on policy in relation to development. I should rather see this in section 4 where it is provided the board will take into account what the Minister has in mind. A responsible board will have regard to this without requiring that it be written into section 5. Subsection (3) of section 5 states:
Section 14 refers to oral hearings and it is stated that the board will have absolute discretion to hold such hearings of any reference or appeal to them. I will give them that providing they will state in writing to the people concerned the reasons they are not getting an oral hearing. It may be that the appeal put forward is so frivolous or of such a weak nature that it would not warrant a hearing but the person concerned should be told so in writing. It is not sufficient just to state that the board shall have an absolute discretion to hold an oral hearing. It might happen the board would rule out oral hearings that might have an important bearing on planning. We should be careful in this matter. I realise there may be vexatious or frivolous appeals but I do not think there will be many. When we speak about planning we mean planning for people. If people consider they have a grievance they should be given every facility to redress it. If the board decide not to give an oral hearing because of the nature of the appeal they should state this in writing.
 Section 16 is worthwhile. It will deal with vexatious and frivolous appeals in a quick manner. One of the problems today is that people stall on these matters and use every means within the law to hold up appeals. There are people violating the planning laws who try to stretch matters over five years so that they are statute-barred. There are people who move into private houses but then turn them into offices and they use every means possible to stretch this over five years. Section 16 will deal effectively with this kind of behaviour.
I am not all happy with section 17 because it tends to throw the onus on the third party. In this connection the intentions of the Minister and what an independent board may do are two different things. I am against costs being levied on a third party. Developers and people with money will be prepared to fight and meet whatever costs may arise; the ordinary man in the street cannot afford to do this. If a developer won his case and appealed for costs on the basis of the time during which development was held up and profits thereby lost very few people would want to make third party appeals. This would also inhibit the local authority going ahead because local authorities are very conscious of the large sums levied on ratepayers and they might therefore tend not to pursue legitimate appeals in case such appeals might go against them.
Section 17 (1) (b) is in the 1963 Act. I do not remember it being used. An independent outside board might well say: “We do not like this and so we will make you pay”. The section provides that the board may direct the appellant to pay—
I think this is wrong. Indeed I doubt the constitutionality of it. I should like to see section 17 withdrawn and an amendment made of the 1963 Act  protecting the third party. Over the last six months there has been a fair lobby against this sort of thing. This, I admit, can be troublesome and cumbersome. People get awkward at times. But this is what democracy is all about. We are dealing with human beings and it is our duty here to ensure that their rights are protected. I know quite a few people who are concerned about this section and I would ask the Minister to have another look at it and to clarify the situation. An independent body may take a different view from that taken by the Minister and his predecessors.
Under section 21 planning enforcement and the control of open spaces are dealt with. I agree with what Deputy Molloy said on this section. Where a developer puts in a plan stating that he is making provision for an open space which he intends to develop he should be compelled to implement that plan to the full. We know from sad experience the derelict condition of open spaces around the perimeter of this city. The houses are built, the builder is paid and he promptly moves on to another site. If the local authority subsequently develops these derelict sites then the builder should be compelled to recompense the local authority. If a penalty is imposed on the builder he will not leave behind him a trail of destruction and the Minister might well see better standards in future building developments.
Section 22 is a good section because it discourages unauthorised development at an early stage. When a builder moves into a residential area to do some development a warning should be issued that the area is residential and the local authority will not tolerate the conversion of private dwellings into offices. One cannot stop a developer changing the inside of a premises, but one can stop a developer turning a premises into offices. It is important that we should move in this regard as quickly as possible.
I do not believe a fine of £100 is a sufficient deterrent. If a developer knocks something down which should not be knocked down there should be a recurring fine for a period of 12  months or so. If that is not done then the section will not be effective.
There is too the problem of unauthorised development. The fines bear no relation to the profits made. If someone puts up a kitchenette the local authority are very quick in getting at that person. When however an office block goes up or an extra floor is added to an hotel it is not so easy to get at these people because of their influence and their resources. They can pay the fine of £100 a day.
Mr. O'Brien: That is sub judice. He can pay it and may be allowed to add it on to the bill. But the important thing is that there is an early warning notice for these people who know when they buy these properties that they are going to break the law. But they say: “It has happened before and we will get over it somehow or other”. It is important that we put the finger on these people for once and this is what I hope this Bill will achieve. A certain professional body took a stand against the third party appeal. If this professional body took a stand against their members who are violating the planning laws around this town and tried to improve the standards of their own profession, then I would listen and respect their views. But, until such time as they do so, their views mean very little to me.
We have been waiting for section 23. The High Court can require people to stop an unauthorised development. Up to now, one knew that an unauthorised development was taking place; one ran to the corporation and the corporation more or less said: “What can we do?” One went to the Minister and there were laws here and laws there. There may well have been laws here and laws there but they were not or could not be enforced; they were cumbersome and slow and so the development went ahead. Now, in section 23, not necessarily the local authority but “any other person” can go to the High Court and have  this unauthorised development stopped. This is very important and is one of the many good features of the Bill.
The purpose of section 24 is to give greater flexibility. This is something about which I have felt strongly and I am very happy that it is written into the Bill. I think Deputy Molloy referred to a directive the Minister issued about flexibility. I compliment the Minister on this. The local authorities, as soon as they see an “i” not dotted, assume that there is a fault; they refer it to Local Government in the hope that they will deal with it. This is wrong. Local authority should process. But, where there are minor details or technical problems only involved they tend to hold it for an interminable number of weeks and then pass it back, saying: “We are refusing this”. When this new board commence their work in respect of any frivolous appeals referred to it by local authorities, I would request the Minister to write to those local authorities asking them to get on with their job and not hold up development on the basis of something very minor or technical.
I think a commission has been sitting on the question of bye-laws since 1963. I do not think they can be sitting on it at this stage; they must be lying down on it. What we need is to get on with good planning. This is what this Bill is intended to do. That is why I feel the flexibility feature of section 24 is important. The Minister must make it quite clear to local authorities that he wants them to exercise this flexibility; that he does not want them referring to some rule book and letting it do the work for them. It is important that they exercise a degree of commonsense and judgement. In other countries now they realise that the rule book is good but one can tie oneself down completely with rules and regulations. Where one has efficient and responsible planning officers they will let by only what they believe to be good planning and desirable development in an area even though it may have some small fault of a technical nature. In cases like  that, they should let it go and get on with the planning.
I should like some explanation of subsection (1) and, as regards subsection (2), I think they should recall the withdrawal in the register and leave the original plan on the register. It is important that it is there as a record rather than a reason.
Section 25 has to do with the expiring of permissions after a period of five years. This is a very good section, where you have people getting planning and outline permissions and just sitting on them to develop more money. They leave the land lying derelict. In this case the permission will fall after five years. That I consider to be first class. Where there are derelict sites left lying and the corporation cannot get an owner, I believe they should put a notice up for 12 months indicating their intention to take over this land for development. Then, if nobody turns up within that period of 12 months, they should take over the land and develop it. Walking around Dublin one sees a great number of derelict sites. One would often wonder were we in a war with so many gaps to be seen. Nobody seems to know to whom they belong. I think Deputy Molloy touched on this earlier with regard to roads and areas being allowed to deteriorate because of prospective roads going through them. I would agree wholeheartedly with him here. The road situation and the local authorities attitude to it are ludicrous. They talk about roads in 20 years time and they will not allow good development to take place because a road may go through a particular area. Then, after a few years, the plans for such a road are cancelled.  Subsection (7) reads:
I believe the District Court is not the place to deal with these things. I think it should be the Circuit Court. Anybody who has been in a District Court will realise that they are hardly able to deal with the simplest legal situations without imposing this on them. I do not think they are capable of dealing with this type of situation. If we substituted the Circuit Court for the District Court here we would get far better decisions. After all, this is the whole purpose of this Bill, to get better decisions.
I think that is excellent. I think also the board should be able to commission research. It is important that the board set up a research unit on the basis of good planning and techniques and that they publish such research. That is something the board should consider doing.
With regard to commercial and industrial development, there is no reason why the local authority should not levy fees. I would not want to impose a fee on small developments but on the larger developments it is only right and proper. If we had this money from fees we might be able to pay for the planners which we cannot now get. This should have been done long ago.
(ii) the payment or lodgment with the Board of prescribed fees or deposits by appellants, and the regulations may provide for the payment or lodgment of fees or deposits of different amounts, and for the exemption of applicants or appellants from the payment of fees or lodgment of deposits in specified circumstances,
I am very wary about this. It is attacking the third party appeal. It is probably well known that I am very much in favour of the third party appeal. It is necessary. This part of section 28 is a subtle way of attacking it. In section 17 we had such a provision and it is rearing its ugly head again in section 28. I do not like it. I will speak about this on Committee Stage. Perhaps the Minister would elaborate on it. I may be reading this section wrongly. There may be nothing at all in it against third party appeal, but I feel there is. If there is, we should ensure that it is taken out.
There are not sufficient inspectors at local authority level. There should be inspection of developments as they are going up. We have all seen a certain building going up lately in contravention of planning permission. If we had sufficient inspectors, this would not have happened. When an authority give permission they should know what is happening. We must try to close loopholes. If we had the staff, we would be able to implement the 1963 Act. As of now, we have not been able to implement that Act and the developers have been riding roughshod over it and hence the number of illegal developments which have gone up and have stayed up, regrettably. With regard to illegal developments, I feel that when they go up they should be taken over. Anyone who violates a plan should not make any profit at all. He is violating the law and the local authority should move in. An arbitrary price, which would be low, should be fixed on the development. The developer should be told to move out.
 I would say the same in regard to the demolition of a building without permission. The people who demolish buildings or their associates should not be given planning permission for such sites. Such deterrents would stop the sharp practice which obtains in our society today. We are concerned about the big money involved in development today. Sanctions, small fines or threats are of little consequence. People engaged in such practices may intimidate others by reason of their money, force or their position in the community. When such people step out of line, they should be made to pay penalties. The only way we can make them pay penalties is by restricting their permission. With regard to demolition of a building, there should be a recurring fine for 12 months. The fine should be £100 a day. That would stop many of these people. Where a man goes ahead and builds an unauthorised structure that structure should be taken away from him. A sum far less than it is worth should be given to him.
I welcome this Bill. I am merely speaking here on aspects that worry me. There should be a section in the Bill covering agricultural development. Agricultural development should come with the scope of normal planning. There would then be ordered development. The agricultural community would be thankful for this in the long run. As I said earlier, planning is about people and for people. It is not there to restrict. It is there to order, to make the environment and life better. There would be some criticism of a section covering agricultural development. There is a certain amount of pollution into our rivers. Any steps which can be taken to stop that should be taken. I will speak on various aspects of the Bill on Committee Stage. I would like to thank the Minister for bringing in this Bill.
The Minister said he will give every opportunity to Deputies to put down amendments in order to make this a good Bill. The Bill should close the loopholes and relieve the anxiety of many people. It should ensure ordered development. If people are inclined to  break the law, they should know that they will be made pay. This would deter them and might encourage an attitude of mind among architects and townplanners which would encourage them to concentrate their efforts on good development and not on trying to get around the law. Where one or two groups get away with flouting planning permission this tends to snowball. It is important that this should be stopped and should be seen to be stopped. It is hard to close loopholes. The “wide boys” always find a way around.
It is our job here from time to time to review legislation such as this. It should not be the law for all time. As I said at the beginning, times change, attitudes and ways of life change. As our economy develops, there are stresses and strains on our resources. It is important that planning legislation be up-dated from time to time to meet the needs.
Mr. R.P. Burke: I, like the other speakers, would like to support the broad principles outlined in this Bill. The necessity for the Bill is brought about by the length of time that has elapsed and the number of changes that have taken place in the economy since the last Act was passed in 1963. The Minister, in his Second Reading speech, mentioned the fact that the 1963 Act has been in operation for approximately ten years. The general planning system which the Act established has worked reasonably well and it is only fair to say that when the 1963 Act was introduced it was a major piece of legislation. The fact that it has worked as well as it has for the ten years is a tremendous tribute to the men who drafted it. However, any major piece of legislation obviously needs to be amended at various times and, for the future, no matter what Government are in power, it should be one of their aims to review planning legislation at least once every five years. In the light of economic, social and other changes, it is absolutely essential that something as involved in the everyday lives of the citizens as planning, should be reviewed regularly and amended, if necessary.
 Nowdays the general body of citizens are involved in local affairs. This can be seen in the number of community councils, residents' associations and tenants' associations in existence. Almost every area has some sort of residents' association representing it. In practice, much of the work of these associations is concerned with holding a watching brief over planning proposals for the area. It is vitally important that any amendment of the 1963 Act should not only be fair but be seen to be fair.
Probably the major proposal of this amendment of the 1963 Act is that to bring in An Bord Pleanála in its present form. I believe that the composition of this board is not only unfair but will be seen by the public to be unfair. The idea of a board, first of all, is something that has been generally accepted by parties on all sides of the House in the light of the experience of the Planning Act since 1963. Nevertheless, I have my own reservations about the board in its present form. Provision for a board which would be completely independent of Dáil Éireann, which would have no responsibility to Dáil Éireann, the decisions of which could not be questioned by Dail Éireann is not good legislation.
At the moment the Minister, in his wisdom, being the person responsible, makes decisions regarding various appeals which are placed before him. If a Member of the Dáil is unhappy about a decision made by the Minister, he can question the Minister on this decision, but the board suggested here will, to a great extent, operate as a semi-State body. Therefore, if a decision made by the board is queried in the House, I can envisage the Minister saying: “I have no responsibility in the matter; it is a question for the board.” The board will lay a report before the Dáil annually but, again, this report is not necessarily open for discussion. It is essential, since planning is so involved in the local and everyday life of the citizens, that some control be in the hands of the elected Members of Dáil Éireann and Seanad Éireann, that questions can be asked and answers received on the operations of this board. I would ask the Minister  to bring in an amendment on Committee Stage which would provide for an annual debate on the operations and decisions of the board.
I feel very strongly that two ordinary members and a chairman are not sufficient for a board with responsibility of the magnitude this board will have. The minimum membership should be a chairman and four ordinary members, or, if the Minister so decides, a chairman and six ordinary members. I suggest this particularly because of Clause 18 of the Schedule which reads:
In practice, if there is a chairman and two members, the quorum is most likely two. I can envisage a situation in which a member of the board is ill; there is a quorum of two and there are 100 appeals up for decision. One member of the board takes 50 and the other member takes 50. They examine them individually, then the two of them come back and have their board meeting. It would not be unreasonable to say that it is quite likely that this would be a rubber stamping operation, that one would accept the other's recommendations on particular proposals.
As the ordered development of this country is involved in the operations of this board, it would be wrong to have only two men organising such a development. Therefore, I would ask the Minister to adopt my suggestion of a board with a chairman and not less than four members.
I should like to speak about the method of appointment. Paragraph 4 of the Schedule states that the chairman of the board shall be appointed by the Government. This is fair enough but the Schedule does not set  down any qualifications. Neither does it set down qualifications for ordinary members of the board. In my opinion the chairman should be a judge. As has been said, the Judiciary have always been above suspicion. They have always carried out their tasks and duties in an honourable way and have earned the respect of all citizens.
A board with responsibilities of the magnitude to be entrusted to this board should have a judge as their chairman and this should be written into the Schedule. There are many reasons for this. First of all, the board will have vast responsibilities for the orderly development of the country and I cannot think of any better person than a judge to bring objective decisions to bear. It is part of his stock in trade on the bench. A judge also has knowledge of the law and, as we know, decisions in regard to planning and development are always argued not just by architects and engineers but by senior counsel and solicitors. According to the Schedule, the chairman will have the casting vote if there is a matter in dispute. In a case of that kind the chairman should be seen to be a person above reproach, and that is another reason why a judge would be the ideal person.
Paragraph 6 of the Schedule states that the Government may remove from office a chairman, and the reasons are given. It says that the Government shall cause to be laid before each House of the Oireachtas a statement in writing of the reasons for the removal. That is not good enough. If a man of this stature is to be removed from office—this board will have some stature in Irish society —it should not be a matter merely of laying a simple statement before each House. A dismissal motion should be brought before each House and debated and voted on.
I come now to the ordinary membership of the board. In the Schedule the Minister envisages two. I recommend four. The Schedule does not make any mention of the necessary qualifications for membership. Deputy Molloy has suggested that under the  present Bill the members could be chosen from the supporters of any party who happened to be in Government at the particular time. This is a wrong situation. The Minister should have set down specific qualifications necessary for appointment to the board and the appointments should be made by the Civil Service Commissioners. The idea of the board is to remove any suspicions from the minds of the public and therefore great care should be taken in the appointment of members.
I suggest that the Schedule be amended to set down specific qualifications for membership and that the members should be appointed after interview by the Civil Service Commissioners. I further suggest that one member should be a town planner and that he should have had at least ten years practical experience. I suggest that another member should be an architect. The need for this is obvious to those of us who have seen so many buildings going up in this city and throughout the country completely out of tone with the general surroundings. The appointment of an architect to the board would go a long way towards avoiding this in the future. I suggest that a third member should be a civil engineer with ten years practical experience. When I say this I am not casting any reflection on the ability of the Minister for Local Government as an individual to select a proper board.
In addition it is essential that any such board would take into consideration general broad principles of Government policy and for that reason the fourth person on the board should be a senior civil servant who would be best able to advise on general principles of policy. If a local authority, for example, were to refuse an application for an oil refinery in a particular area and if the Government felt that it was a good idea to have an oil refinery in a particular area because we have not sufficient of them, it should be up to the Minister's adviser, the civil servant appointed by him on the board, to so advise the board and let the board make up its own mind. It is absolutely essential for the Minister  to have one nominee on the board, a civil servant capable of informing the board of the general outlines of Government policy.
Section 4 of the Bill says that the board shall keep itself informed on certain policies and objectives. This is right and proper but in the next section, section 5 (2) I think the Minister has gone too far when he says that the board shall in performing its functions have regard to any directive under this section—and this is general policy directives as to development. With the appointment of a civil servant the Minister could keep the board informed but the Minister, probably unwittingly, went too far in this subsection when he said “The Board shall in performing its functions have regard to any directive under this section.” This subsection strikes at the independence which all sides of the House want this board to have. The Minister should consider an amendment which our party will put down for the Committee Stage to alter subsection 2 and I should like to hear the Minister's comments when he is replying on this subsection.
I have said that the board should comprise a chairman and not less than four and possibly six members. If the Minister decides to increase membership to a maximum of six, I suggest that such bodies as the Confederation of Irish Industry, the Congress of Trade Unions, the Builders Federation or some similar bodies would be asked by the Minister to appoint nominees to the board. In particular, I mention the Confederation of Irish Industry and perhaps An Taisce or some similar organisation.
Mr. R.P. Burke: No, I said four and that you could pick the organisations. I was suggesting a board of a chairman and four with a maximum  of six members. If the Minister felt he would like to appoint six I think it should be on that system. It is absolutely essential that these should come from the Local Appointments Commission and Civil Service Commission and they should be permanent appointments.
Mr. R.P. Burke: What I suggested was that the chairman would be a judge and that of the four-member board one would be a town planner, one an architect and one an engineer. The fourth could be a senior civil servant appointed by the Minister. If the Minister felt he would like to put in two outsiders, very well but the board should have the qualifications set down, one a town planner, one an architect and one an engineer. Those three men together with the chairman should be permanent appointees because it is essential to get the best possible men for the job and, therefore, essential to make these positions permanent. It is suggested in the Bill that the term would be three years and that the board be reviewed at the end of each term. As regards the civil servant and the other two members— if the Minister wishes to appoint them —they would at the Minister's discretion serve for one term and could be considered for re-appointment. A civil servant might be retiring or might be transferred to a different section.
As this board will have such extensive powers, I think that in regard to the sacking of the chairman and members it is not sufficient for the Minister to lay before the House a statement in writing of the reasons for the removal of either chairman or members. A full debate on a motion from the Minister  would be in order and a vote should be taken on the motion.
I should like to deal with the operation of the board and that brings me back to section 5 at which I hope the Minister will look again on Committee Stage. Not only does the Bill involve the setting up of this board but it brings in some very necessary amendments of the 1963 Act with some of which I agree and in some of which the Minister has gone too far. Under section 13 (4) it is stated:
In case there is attached to a permission or approval granted under section 26 of the Principal Act a condition which provides that a contribution or other matter is to be agreed between the planning authority and the person to whom the permission or approval is granted and that in default of agreement the contribution or other matter is to be determined by the Minister, the condition shall be construed as providing that in default of agreement the contribution or other matter is to be determined by the Board.
The question of contribution generally for planning permissions is one that has been debated, I suppose, by every county council, corporation and local authority in the country on a number of occasions. In County Dublin at present, for every acre of development land the applicant is responsible for a contribution of £1,500 to the county council. I see nothing in this Bill which gives the council the power of collection. A subsection should be included stating that the collection of these contributions would be a legally binding debt which, I understand, it is not at the moment and was not under the previous Act. This is a small point which I should like the Minister to consider.
I agree with Deputy Molloy that this section is unconstitutional. The property rights of citizens are sacrosanct and written into the Constitution. Section 14 will be found unconstitutional if it is passed in its present form. As I understand it, the Minister is attempting to remove the headache of frivolous and vexatious appeals, be they by appellants, by applicants or by third parties. In this section, the Minister is going unintentionally too far. His heart was in the right place but his hand carried him too far. He should have another look at this section. His aim could be included in the Bill in wording which is not quite as rigid as that used in this section.
Section 14 could read that the board have absolute discretion to hold an oral hearing; that if they refuse an oral hearing they must give reasons in writing for such refusal; and that if the appellant is not happy with the reasons stated in the letter he can appeal to a higher authority, a court of law, Circuit Court or somewhere else. To make the bald statement that “the Board shall have an absolute discretion to hold an oral hearing” is, in view of the magnitude of this legislation, going too far. The Minister requested contributions from Members and said that he would consider any proposals for such amendments. I ask him to look at this section again. As I have said, I agree with his intention but feel he has gone too far.
Section 16 is linked with section 14, which deals with frivolous and vexatious appeals. I can see great difficulty for any board in implementing section 17 and in deciding exactly what amount of compensation should be paid. Would it be calculated on professional fees involved? Would they take into account such items as the interest on capital involved in the amount of land tied up? Would there be a payment for unnecessary delay and loss of profits? Would all these items be included in the calculation for compensation? When replying would the Minister outline exactly what he has in mind so  far as the compensation factor is concerned?
A provision for compensation and appeals should be in a Bill of this kind, although it was not in the 1963 Bill. On the day of the oral hearings third party appeals may be withdrawn. Three to six months can elapse from the date of the lodgment of an appeal against a notification of decision to the granting of permission by a local authority. Any third party who delays by a frivolous appeal a single house, a housing scheme or a commercial development should have some financial responsibility.
We are involved here in the rights of citizens. When drafting legislation concerning compensation we must make absolutely certain that we do not go too far. In theory we should give the right to a residents' association or to an individual to appeal; but in practice they would be so nervous of appealing because of the problems of compensation that they would not appeal. There is a thin white line in regard to exactly how far one can go on the question of compensation.
In ordinary planning applications to local authorities there is a time limit of two months. It is essential when setting up an appeals board that a time limit on their decisions be also set. Two months might be short and I would suggest three months at the maximum. Unless they have made firm decisions in three months the applicant should win his appeal by default. This would be in line with procedure in local authorities. A very good suggestion by the Minister was that, as happens in the case of an application to a local authority, an applicant could write to the appeals board and say that if the board have not had enough time that the applicant would give them another three months to consider the case.
I welcome section 18. This section enables the board to accept amendments to plans which have been submitted  to the local authority and have been refused and are on appeal to the board. The board, rather than refusing an appeal because of some technicality in a drawing, are empowered under this subsection to accept amendments when they are considering an appeal. This would help in the case of a man applying for a single house in a rural area who, because of the siting of perhaps a septic tank, is refused permission by the local authority. He appeals to the board and would be refused again but under this subsection it is possible to change the plan slightly and consequently the board is empowered to grant permission. This is a very welcome change and I compliment the Minister on including it in the Bill.
Section 21 refers to open spaces. I believe strongly that when a man buys a house, perhaps one house on an estate of 100 houses, he also buys 1 per cent of the open space attached to that estate as set down in the plans submitted and passed by the council or the new planning board. I believe it is wrong that the local authority, as is suggested by this section, should have to buy the open space which is attached to the development from the developer. It is a condition of all planning permissions that a certain area, perhaps 10 or 15 per cent of the land, be allocated for open space. If it is a condition of the permission that the purchasers of the houses have a right to this open space and I do not think it should be necessary for the local authority to have to buy the open space.
So far as the taking in charge of open space is concerned, anything that will improve the present appalling situation is to be welcomed. I would ask the Minister to alter slightly what he has proposed because there is more to the taking in charge of estates than the open space. There are the problems of the erection of telephone poles, lights, the proper  completion of roads, sewers, water mains, et cetera. Most of the estates that have caused problems are estates that were built prior to the 1963 Act in the Dublin area, estates which have never been taken in charge and, as matters stand, cannot be taken in charge because the developers, if they were individuals, have died or companies have been liquidated. I should like the Minister, when he is replying, to refer to the question of the taking in charge of older estates. As the Act is interpreted in Dublin County Council at the moment no estate will be taken in charge unless the developer makes a request to have the estate taken in charge. I am not just talking of open space but of all the other things as well. I believe the Minister has attempted to solve the problem but I do not think section 21 has gone far enough or will solve the problem.
Section 22 deals with the preservation of trees or other features whether structural or natural. Any protection we can give to the environment is to be welcomed. Trees, et cetera should as far as possible be protected by local authorities and by Planning Acts and all Acts of the Oireachtas. There is mention somewhere of a fine of £100. I do not believe this is heavy enough. The Minister could have gone higher than £100. When a tree or other feature has been taken away it is not always easy to replace it. In my own area we had an old windmill which was a feature of the area and a landmark. Overnight it just disappeared. Under the legislation we had at the time there was very little we could do.
Section 23 provides that the High Court may prohibit unauthorised development or use of land. This is one of the most welcome sections of this Bill. We have had the experience in County Dublin of unauthorised caravan sites. This section will permit the local authority, if they see unauthorised development taking place, to go to the High Court and get an injunction to stop that development. This is really welcome. Our experience in County Dublin is that one caravan is put into a field. The county council come out and tell the owner of the  field to stop but under the present legislation they have no power to prevent him going any further. He then applies to the Minister for retention of the caravan site and is refused. In the meantime there are 20 or 30 caravans with families on the site. What is a local authority to do? Are they to put the families on the side of the road? In theory that can be done but in practice we cannot put unfortunate people on the side of the road. In the meantime the owner of a site is in receipt of exorbitant rents for the siting of these caravans, year in and year out. We have seen, within the boundaries of County Dublin, some of the most appalling cases of squalor on some of these caravan sites, not the responsibility of, or because of lack of effort on behalf of the people living in the caravans on these sites. It is because of the fact that it is physically impossible to keep an undeveloped field from tearing up with the muck and water and no proper sewerage. In some cases there is just a pump in the middle of the field which serves as the fresh water supply for the dwellers of the caravans. It is impossible to keep such sites from developing into a situation of squalor. Anything that will help to prevent this situation arising in the future is welcome. In this regard I am delighted that the Minister has inserted section 23 into this Bill.
Section 25 provides for the “withering” of planning permissions. This is a good idea but the Minister should have left this to permissions granted after the coming into force of this particular Bill. A man who received planning permission four years and eleven months ago will lose his right to build or extend one month after this Bill comes into operation. If this is not the case it is how I read it, and, for that reason, the Minister should clarify it when replying.
Within the boundaries of Dublin we have old permissions in many areas some of which, in the light of developments which have taken place since they were granted, are now found to be contradicting recent developments. For example, there is  such a development taking place at Castleknock at present where shops are being erected. When permission was granted some years ago this development, which then was granted for a rural area, did not contradict what was going on around. Now, however, it is in contradiction to the development in progress there. Permission to erect licensed premises can be given in areas at a time when it seems harmless but in later years it can be found very controversial. The same situation can arise in the case of petrol stations, particularly where old applications are re-activated years after permission is granted.
Unfortunately, within the greater Dublin area there is a lack of proper sewerage facilities and when a planning application is granted by a local authority a certain reservation of the already short supply of sewerage facilities has to be made. Unless this development goes ahead this reservation which is not acted upon is sitting there tying up other land which could be developed if this old permission was abolished. For that reason the idea of the Minister in “withering” permissions is a good one.
Section 28 deals with the question of the lodgment of money and the payment to planning authorities of prescribed fees by applicants for permission under the Principal Act to develop land. I am completely against this section. In most cases the applicant is a landowner himself who has been paying rates and taxes for a number of years. Such a person is entitled to have any application that he makes for the development of his land considered by the local authority to which he has been paying rates. I am against any suggestion of lodgment of money with the local authority for planning applications.
Section 29 seeks to introduce what is a very welcome amendment to the previous Act and that is in regard to draft development plans and variations being made to them. The development plan for County Dublin was drafted in 1965 but we found there were so many amendments that we had to start again. The officials worked on it from 1968 and the plan  was eventually passed in 1972. When a development plan is made it must go on display for a number of months after which objections have to be considered. Having considered the objections and if there are major alterations made, the whole plan must go on display again, not just the sections that have been altered. In practice one could have a situation where ad infinitum there is a plan on display, consideration of the objections, alterations to the plan, back on display, further alterations followed by a further display, further objections and further display. One can have this never-ending circle and the Minister, in this section, has gone a long way towards sorting this situation out.
Section 30 (a) deals with the problem of noise. While one can bring in regulations concerning noise there are certain areas where, because of their geographical position, their close proximity to airports, ports, railway stations and motorways, there will be a certain amount of noise. There will also be noise in areas where major roadways are planned. A condition may be inserted in such planning applications regarding noise but, in my view, the only solution would be to give grants from the Department where the noise factor cannot be avoided. Some reference should be made to the payment of such grants by the Department in such cases.
Subsection (b) deals with the welcome idea that, with the agreement of an applicant, a local authority can take longer than the two months to consider any particular planning application but what is relevant for the local authority should also be relevant for the board as suggested by the Minister.
On section 31 it is a question of the Minister's heart being in the right place but going too far on the proposal. That section deals with the special amenity orders. I do not agree that any Minister should have the right to make amenity orders in local authority areas where there is a local authority operating. If we are to have  the local democracy and local control that we are all aiming for, no Minister should take on himself the power to make a local amenity order without having the agreement of the local authority concerned. Recently the Minister issued a White Paper on Local Government Re-organisation in which there was reference in that document to local democracy and control. Perhaps on reconsideration the Minister will alter this section of the Bill.
I would like the Minister to alter that paragraph so as to read: “Building regulations shall make provision in relation to the special needs of disabled persons.” For too long most of our public buildings and places of entertainment such as cinemas, halls, and sports stadia have been designed without any consideration being given to these special needs of the disabled. We have now an opportunity of altering that situation and of considering the whole planning spectrum. The Minister has gone a long way in this direction by the insertion of the paragraph I have referred to but he should go that bit further and say that as and from the enacting of this Bill, the development of such places as Government offices, amenity halls, shops and factories must be carried out in a manner that would meet the special needs of the disabled. I hope the Minister will agree to change the paragraph to read as I have indicated. We shall table an amendment to this effect between now and Committee Stage.
“not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are commenced” after “Land Reclamation Act, 1949”.
This brings up the whole question of  rights of way and of the protection of these rights of way. In the past efforts have been made by private individuals to fence off rights of way that have been used traditionally by the general public. There was an example of this in Wicklow not so long ago. Attempts have been made in some cases to turn parts of beaches into private domains. We should do everything in our power to prevent any such practices.
There are a few other points I wish to make concerning the whole question of planning. In relation to an application for planning permission the present position is that the applicant merely has to state his interest in the property in respect of which planning permission is being sought. He may write the word “none” in answer to that question. This position is unjust. Let us take a hypothetical situation: somebody from, say, Donegal who wished to be contrary could apply for planning permission for the development of a six storey office block on a site owned by the Minister out at Laytown. This could be done without the owner's permission being sought and without there being any intention to purchase the property.
Mr. R.P. Burke: The point is that it is wrong that anybody's property should be liable to a planning application without the owner having to give his permission for any such application to be made. I can understand the problems involved in respect of the development of a large tract of land in which case there would be the intention on the part of the applicant to purchase the land. Surely it would be possible to have at least a provisional contract that would be subject to planning permission being granted.
Mr. R.P. Burke: I understand the Minister's point but at the same time  something more than the answer “none” should appear on a planning application form in reply to the question concerning interest in the land involved.
Within the boundaries of County Dublin we have witnessed the phenomenon of the development— some of it envisaged and some of which has already taken place—of large areas of 5,000 and 6,000 acres of land. I refer to the new towns of Tallaght, Blanchardstown and Clondalkin. Together with all the other work with which they must cope, the local authority within County Dublin are expected to assume responsibility for these new areas. The Department, having approved of development plans as drawn up by a local authority, should appoint a commission who would be responsible for the day-to-day management and orderly development of towns of this magnitude.
Mr. R.P. Burke: What I am suggesting is that each of these towns should have local offices where the residents of the area could ascertain what was going on in the vicinity on a day-to-day basis and where they could be made aware of future developments. This would protect the interests of existing residents and would facilitate people involved in development work in the area. From our experience within the boundaries of County Dublin we have been made aware of the types of problems that can arise in the development of large areas of land. We can pass this Bill here. Perhaps we may table amendments that will be accepted by the Minister. We could talk about enforcement proceedings and all the things we would like to see done but unless we have men with the necessary qualifications to carry out this work all the pious platitudes we pour forth here will be of no avail. I cannot speak for other local authorities but I know in my local authority and from the Department of Local Government that there is a gigantic shortage of professional men, town planners, architects, engineers, people capable of interpreting this Bill and capable of carrying out its provisions.
 I would like to see greater encouragement given to those people by the payment of higher salaries to men who are prepared to study and become experienced town planners, architects and engineers. The rates of salary for planners and people involved in local government generally are far too low. Greater encouragement should be given to various students to direct their interests towards planning. We have many people taking other degrees but planning has now become one of the major questions which touches the life of every citizen at some time during his life. In order to carry out the various sections of this Bill it is necessary to have adequate staff. The Minister should encourage, by suitable financial reward, qualified people to engage in planning work.
Mr. R.P. Burke: We have not enough of them, whether they are men or women. I should now like to say a few words on roadside signs and the problem of people involved in the business of outdoor advertising. These people are finding it impossible to get planning permission from local authorities to erect various signs. Some protection should be written into the Bill for those people involved in the legitimate business of the erection of outdoor hoardings. There are regulations sent out by the Department forbidding the construction of signs along arterial roads. This is a good idea but there must be a compromise thought up which would give the people engaged in the legitimate business of the erection of outdoor advertising hoardings protection and  at the same time protect the country generally.
I suggest that at the entry to all towns one large advertising hoarding should be erected. This could set out the various elements in the particular town such as shops, schools, churches. It could also set out where developments are taking place and where factories are situated rather than each factory putting up a sign directing business callers to the factory which could be located on a side road. The present situation could be improved if a composite sign were erected.
Agricultural buildings were mentioned earlier. I am against planning applications having to be submitted for such building but I feel there should be greater control of the causes of pollution, for example, silage pits. Pollution of our rivers is becoming a greater problem each year. I know there are controls under the Health Acts in regard to pollution but these do not go far enough. I am not in favour of the general across-the-board application for every farm building but there must be greater control of the causes of pollution.
I now want to refer to the redevelopment of the centre of Dublin. Deputies from Dublin are appalled at what has happened to the centre of our city. There are large gaping holes on every road and street. During the past 12 months one hotel after another has closed down the general intention being to replace them with office blocks. I welcome the Minister's recent statement on this. The centre of Dublin, as well as the centres of our major towns, should be alive. It should not be an area in which there are just offices. At the moment the once proud centre of Dublin is being spoiled by office blocks.
Mr. Tully: The Deputy will agree I am sure that this can only happen if Dublin Corporation give permission for those office blocks or if permission was already given before my time. I will not give permission.
Mr. R.P. Burke: I am talking generally about what is happening in the centre of Dublin at the moment. I pass Mountjoy Square a few times a day and I know the Minister also comes that way. This area is an eyesore at the moment. O'Connell Street has become an eyesore also. Many other city areas which were not just visited during the daytime, but were night spots containing hotels and offering other amenities are being ruined. I hope some sense will be displayed in regard to the question of life in the centre of Dublin.
Again I welcome in general the principles enshrined in the Bill. I feel the chairman of the board should be a judge and that the board should have a minimum of four members three of whom would be appointed by the Civil Service Commission on a permanent basis, and that they would be a town planner, an architect and an engineer. Subsection (2) of section 5 with regard to the giving of directives should be watered down——
Mr. R.P. Burke: With regard to oral hearings as provided for in section 14, the Minister's intentions were right but he has gone too far. I would ask him to water down that section because it is wrong to give absolute discretion to a board or to an individual to decide on whether to hold an oral hearing. So far as protection for the disabled is concerned. I would ask the Minister to alter section 33 (d) to give full protection and full rights to people who are unable to frequent public places because of physical disablement.
Mr. Hegarty: I should like to compliment the Minister on the Bill because I regard it as essential. All the rules and regulations of planning are to no avail if they cannot be enforced.  That is an important aspect of any Bill. The enforcement of planning regulations is causing many problems for local authorities, especially in the poorer counties. The ratepayers are finding it increasingly difficult to meet all the costs that are incurred.
It should not be necessary for a ratepayers to have to protect himself from ruthless developers. Where major development is concerned the people who will be the beneficiaries should pay all the expenses. Frequently local authorities are obliged to employ very expensive consultants and experts. We had an occasion where it was necessary to send people to Japan in order to assess the suitability of an industry and it is unfair that the ratepayers have to pay such costs. The people who intend to establish an industry should pay the costs.
I am not in agreement with the suggestion of the previous Deputy that the chairmanship of the board be a judge. Planning is not a legal matter; in fact, the fewer legal people connected with it the better. It is my opinion that an architect or a town planner would be a better choice. There is the danger that eventually all the matters will be tied up in legalities, that there will be much expense. It would be better to have on the board solid, sensible people who have an understanding of planning matters.
The board will have much work to do. In order to maximise their efficiency I should like to see them attend at various centres. It would be a good idea if the board were to attend for a number of days in each quarter in Dublin, Cork, Limerick and Galway in order to hear appeals and give immediate decisions. This would reduce the delays and the proposals submitted would not have to wait for more than three months. In any case, eventually we may have to have separate boards for each area.
With regard to the development of towns, a major problem is the speculators. I do not think this point has been sufficiently stressed. They very shrewdly buy up property from people who do not realise its potential value and who allow it to lie idle. If farmers allow land to lie fallow the Land Commission  are told and the farmers are not allowed to continue this practice for long. The developers have been operating in this manner in many small towns. In Cobh there are many ruined buildings that are in danger of falling; in fact, one such building fell on a dwellinghouse not long ago and we have not been able to trace the owner. Obviously he intends keeping the site until it becomes a more lucrative proposition.
Local authorities have powers to acquire these properties and they should use their powers. I am sure they would get the full co-operation of the Minister in the acquisition of derelict sites. When a derelict site is developed it means increased income for the area, it means a more beautiful town and it means people are not obliged to move out into the country. The previous speaker spoke about office blocks but in many of our small towns also people are moving out into rural areas. Local authorities should be encouraged to acquire derelict properties and to build on them. They have water and sewerage facilities and roads and electricity supply are available. In this way the small towns will be maintained and from the tourist point of view this is desirable.
I should like the Minister to give every encouragement to people who have the initiative and courage to provide their own housing. Nowadays too many people are relying on local authorities and depending on somebody else to provide houses for them. People who have the courage to borrow money and to provide their own houses should be given every help. In my brief experience of political life I have found that planning permission has been refused for the most trivial reasons. In this Bill the Minister might facilitate these people; if they are not on a major road they should be allowed to build if they can provide their own water and sewerage facilities. I do not think they should be prevented.
I would like to see a special interest being shown in regard to housing and the acquiring of land by local authorities in areas in which there are  existing industries or it is proposed to establish industries. We have the sad situation in the dockyard in Cobh that skilled workers are badly needed but because workers are no longer prepared to travel long distances they will not work in the industry in Cobh. There is a great deal of difficulty in acquiring sites for housing in the area and I would like to see more effort being put into the acquisition of land for housing estates designed to serve local industries.
The Bill is an excellent one. The new board should work extremely well. It will obviously be a very busy board. I have no worries about the board being partisan. I believe they will do a very good job. They will relieve the Minister of pressure. There is too much pressure on him as it is. I think the board should go on circuit. I hate seeing everything centred in Dublin. It will be easier to move the board rather than move the people.
Mr. Callanan: It is a pity the Minister and I could not have as much in common on the Electoral (Amendment) Bill as we have on this Bill. I agree with many of his ideas where planning is concerned and I welcome the Bill with certain reservations. The only fault I have to find with the Minister is the fact that he does not give enough credit to the man who preceded him. His predecessor relaxed many of the planning regulations. There is danger of our being planned out of existence.
I am somewhat worried about the qualifications of the members of the proposed board. You could have a board of cranks who would think a great deal about preserving the countryside and nothing about the unfortunate people who need to be housed. The members of the board should be just as interested, or even more interested, in people as they are in preserving amenities. Planners at the moment treat people as if they were cattle. They never ask the people where they want to go. We were told in Galway the other day that it was proposed to build ten or 12 houses out in the country because there are certain people who want to  freeze five acres. When I questioned this I was told by those, who know all about planning apparently, that there was no need to own the land; one could get someone else's land. Who will freeze his land for anybody? That is the kind of codology one gets from those who are supposed to know all about planning.
I am interested in people. I am also interested in the countryside. I drive through Connemara and there are areas in that region where a house would actually add to the scenery provided it did not interfere with the view of lakes or mountains.
Certain qualifications will obviously be required of the members of the proposed board. Actually I would prefer to leave this to the Minister because the Minister will have to go back to the people. He is responsible to the people. What kind of qualifications will the members of this board have? I do not agree that they should be judges or that there should be too many engineers or architects. Some of these people would be necessary but the ordinary people with commonsense should also be represented on the board. I think three is too small a number. I would prefer four and a chairman. I have reservations about the board because of this question of qualifications. The case can be made that the Minister will not make wrong decisions where his own constituency is concerned but he will not give a hang outside of his constituency. There is that to be said against the Minister making decisions.
Mr. Callanan: But it can be made. The board will be vitally important. Deputy Molloy and I both voted against the plan for Galway on the last occasion because there was too much in it and it was impossible to interpret it. I will not vote for a plan unless the local representatives have the final say when there is a difference of opinion between them and the officials. It is the councillors who should have the final say. The officials say that the plan is their's but, when  it comes to interpretation, they have no say at all. Something can be interpreted in two or three different ways and the officials insist their interpretation is the correct one. The proposed board will have this problem. Theoretically it is an ideal solution. Will it work out all that well in practice?
Amenity comes up very often in planning. If there is a crank on the board who never thinks of people at all he will put a stop to all building anywhere on the grounds of amenity. We had many plans turned down by officials on the grounds of their being “out of character”. That phrase is used very often.
|Last Updated: 14/09/2010 22:54:02||Page of 45|