Wednesday, 25 June 1975
Dáil Eireann Debate
Mr. Faulkner: As far as I can remember, when I was speaking previously on amendment No. 61, in the name of Deputy Haughey, I said that I felt that the same principle should apply here as applies in the case of vexatious appeals to the Minister. It is not too likely, as I said before, that there would be anything like the same number to the High Court as there would be to the Minister but nevertheless it is only fair that if a person can show reasonable cause that the word “reasonable” should be added so that persons who could not be said to have a reasonable cause would not be in a position to proceed with applications to the High Court.
Mr. Tully: The section enables a planning authority or any other person to make application to the High Court for a prohibition order. The amendment could be said to pre-empt the function of the court by confining “any other person” to one who can show “reasonable cause”. A court will not make an order unless the applicant can show “reasonable cause”. On the contrary, the application would probably be dismissed with costs and costs would be awarded against the applicant and this should be sufficient safeguard against nuisance applications. The trouble about the amendment is that it postulates that the court is going to act in a frivolous manner. On second thoughts I am sure the Opposition would agree that this is not what they want to do. I believe it will be fairly dealt with.
Mr. Faulkner: Of course, I suppose the fact that costs are involved would be a deterrent. The fact is that in relation to appeals to the Minister where the costs are not to any worth-while degree involved, a vexatious appeal in relation to an appeal to the Minister would be more likely. Could the Minister say what the position is likely to be in a case where a person appeals to the High Court and who has what he would consider a reasonable case, but nevertheless loses it? Does he pay full costs or would that be taken into consideration? Can legislation ensure that?
Mr. Tully: We could not have that because everybody goes to court with the impression that he has a great case and is going to win. The trouble is that if one wants to say that somebody has a good case, one is, in fact, deciding the case before it comes up. If somebody wants to go to court the court must decide whether the case is good or not. If it is a good case he will win but if it is not good enough he will not win.
Mr. Tully: If we are going to have a kind of consolation prize for the fellow who loses as well as the fellow who wins we would be making for very complicated law. It is something I feel we should not write into the Statute Book.
Mr. Tunney: On the other hand, in so far as it refers to a citizen pursuing that which he would claim to be his right the Minister will concede that superficially, at least, it seems to give an advantage to the man to whom the cost would not be as relevant a point as to the man who had not got the money.
Mr. Tully: The Deputy is making a case for free legal aid for people which would be outside my bailiwick completely. Quite honestly, it is not possible to say if somebody has a good case that even though he loses it the costs should be paid or something like that should be done. If we start doing that everybody has a good case though he never goes to court. I can see the merit in the amendment but I do not think it will work.
“(2) Where any development authorised by a permission granted under Part IV of the Principal Act has been commenced but has not been, or is not being, carried out in conformity with the permission because of non-compliance with the requirements of a condition attached to the permission or for  any other reason, the High Court may, on the application of a planning authority or any other person, whether or not that person has an interest in the land, by order require any person specified in the order to do or not to do, or to cease to do, as the case may be, anything which the Court considers necessary to ensure that the development is carried out in conformity with the permission and specifications in the order.”
The purpose of section 23 is to enable the High Court to prohibit continuance of unauthorised development or use and the addition of the new subsection will enable the court to act also in a case where development is not being carried out in conformity with the relevant permission. The last day we were discussing this a case was made by a Deputy in regard to such a matter and he felt it should be dealt with. In fact, we have already added an amendment to deal with it. If there is non-compliance with a condition or a departure from approved plans the court may order the appropriate person, normally the developer, to do or to cease to do whatever is necessary to conform with the permission.
Mr. Faulkner: Deputy Tunney raised the question of a person not having sufficient money to take action in the High Court. I should like to ask in relation to a private person who believes he has a sound case but has not got the money to go ahead with it, is there any likelihood in the event of the planning authority being convinced by him of the justice of his case, that the planning authority would take the case to the High Court?
Mr. Tully: He could, of course, if we assume he is some interested person who has not got the money, ask somebody else, even the planning authority, to take up the case for him.  That would be all that could be done. There is no question of finding somebody else paying for the case if he proceeded with it and lost.
Mr. Faulkner: No, but there is the possibility. In fairness, I would say to a private individual who may have a very just case but who does not feel he is financially capable of proceeding with it that if the case is good and he presents it to the planning authority then that authority could proceed.
Mr. Molloy: If Deputy O'Brien is not here, why is someone not here to move it? I am prepared to do it for him in his absence if he wants it done. I am sure the Minister would like to reply to it. It cannot be done in his absence?
In subsection (1), page 15, lines 2 and 3, to delete “granted under Part IV of the Principal Act, whether granted before or after the passing of this Act,” and substitute “granted after the passing of this Act, under Part IV of the Principal Act”.
Mr. Molloy: Section 25 introduces a limitation of duration of planning permission which we on this side of the House would agree with, but I would not agree with applying this limitation retrospectively. In other words, if a person had obtained planning permission four years and 11 months before the Bill is passed, one month later, that permission dies. Is that not the position? I will give the Minister a chance to explain it.
Mr. Tully: Perhaps it might be as well. Section 25 provides for the expiry of permission after a period of five years from the grant of permission or, in the case of permission already granted, five years from the date on which the section comes into effect. Deputy Molloy questions the application of retrospection, and the amendment he sees as a remedy. In fact it is not needed. The section does not have the retrospective effect claimed.
Mr. Cunningham: You may have a case where outline planning permission was granted for a housing scheme. If after the passing of this Act application for full planning permission was refused, then is there not a contradiction here? In other words, by the refusal of full planning permission one negatives the provision of this Act in cases where definite outline planning permission was given, where the number of houses was decided, the sewerage lay-out, the water supply and roads planned. Could the Minister protect such cases where the considerations which permitted  the granting of outline permission would be the same considerations for the granting of full planning permission, and that full planning permission would be given unless there were other extraneous features coming in which would normally rule it out anyhow? In other words, application for full planning permission after the passing of this Act would not be negatived in cases where outline permission was given before.
Mr. Tully: I do not know what Deputy Cunningham is actually getting at. The outline permission would still run for five years. All permissions would run for five years from the passing of the Act. Therefore what I think Deputy Cunningham is saying is not affected at all. They will be in no worse a position than those who would be applying for full permission on that very day.
then, unless a notice (in this section subsequently referred to as a waiver notice) stating that the condition need not be complied with is issued under this section, subsection (1) of this section shall neither be construed as affecting, nor operate to affect, the obligation of any person to comply with the requirements of the condition.
(5) Any person who is aggrieved by the decision of a planning authority on an application for a waiver notice may appeal to the Board within the period of twentyone days, beginning on the date on which the planning authority notify the applicant of their decision.
Under section 25, permission for development would expire after five years. However, it was necessary to provide in subsection (2) that this would not apply in the case of a single building which was itself completed to the ancillary or incidental works necessary for its use. Similarly in the case of a housing scheme only partly built. It was necessary to provide for completion of roads and so on serving the houses built. The fact that the permission remains alive for such work means that the planning authority can still take enforcement action if necessary. The new subsections (3) to (6) which have been  brought in by amendment No. 65 are designed to avoid the possibility that, where a condition is attached to a permission the developer would be able to evade his responsibilities by claiming that the condition expired with the permission. I am sure everyone will agree that this is very important. Subsection (3) requires compliance with the permission unless a waiver notice is obtained. Subsection (4) provides for application to the planning authority for a waiver of a condition. There must be some machinery to waiver conditions which in the particular circumstances were quite inappropriate. Subsection (5) enables an appeal to the board against the decision of the planning authority. Subsection (6) gives the board power to deal with such appeal.
(a) a permission has been granted under Part IV of the Principal Act for development and the development to which the permission relates is commenced but is not completed before the permission ceases to have effect, and
 (ii) a particular part of the development consists of the provision of any one or more of the following, namely, a structure mentioned in subsection (2) of this section, works, roads, services and open spaces so mentioned,
that authority, if they are satisfied that the part of the development was so completed or so consists, as may be appropriate, may, on payment of the prescribed fee (if any), issue a certificate (subsequently in this subsection referred to as a development certificate) to that effect.”
I suggest that amendments Nos. 66, 68, 69 and 70 should be taken together. The purpose of amendment No. 66 is to clarify the circumstances in which it might be necessary to issue a development certificate. Subsection (3) as provided in the Bill was intended to provide a means of settling any dispute as to whether development was completed in time or whether outstanding works could be completed under subsection (2). However, the drafting was done in such a way that the subsection had a wider effect. Solicitors acting for purchasers of new houses or other property, and building societies and other bodies dealing with applications for loans, might have felt that it was incumbent on them to obtain development certificates. This would have created a vast amount of new work for planning authorities and inevitably would have caused delays in property transactions. In order to avoid such a situation the amendments propose a more specific provision on the lines originally intended.
The new subsection (7) provides that it is only where a dispute arises that a certificate may be issued. The dispute may concern the extent of the development completed in time or the further works which can or should be done under subsection (2). Normally, of course, there should be no difficulty in getting an extension of the five-year period but, if, for some exceptional reason, this is not possible, the following are examples of the sort of disputes which can be  resolved by the issue of a development certificate: (a) in a scheme of 100 houses, 70 are clearly completed but six are at various stages of construction. Normally the planning authority would allow these to be finished off but if they did not or if there was any dispute subsequently, application could be made for a development certificate and, if necessary, the decision could be appealed to the Circuit Court.
In the same circumstances, the builder might dispute the necessity to complete a road as planned originally to give a second access to the estate. The planning authority could issue a development certificate and would then be in a position to institute enforcement proceedings unless the developer appealed successfully to the Circuit Court.
If permission were granted for a shop and store but only the shop was erected before the permission expired, a dispute might arise as to whether the store was necessary for or ancillary to the completed building.
Mr. Tully: In subsection (3) as provided in the Bill, it is intended to provide a means of settling a dispute as to whether development was completed in time or whether outstanding works could be completed under subsection (2). The Deputy understands that. However, solicitors acting for purchasers of new houses or other property and building societies or other bodies dealing with applications for loans might have felt that it was incumbent on them to obtain development certificates. The vast amount of new work for development authorities inevitably will cause delays in property transactions. So, in order to avoid such a situation the amendment proposed a more specific provision on the lines originally intended. Now this is the point. The new subsection (7) provides:
 Now, understand that: only where a dispute arises as to whether or not. It is a simple provision. The dispute may concern the extent of development completed in time or the further works which can or should be done under subsection (2). Normally, of course, there should be no difficulty in getting an extension of the five-year period provided the work is in progress or if, for some exceptional reason, this is not possible the following are examples of the sort of disputes which can be resolved by the issue of a development certificate. The idea of the development certificate is to allow for the continuation and completion of the works.
Mr. Faulkner: Does it mean anything in relation to payment, for example? I thought that it had some reference to payment in the sense that if a certain amount of the work is done and the developer then gets a development certificate, would that not mean for him that that much of the work was completed?
Mr. Tully: No, that is not the object. The object is that if he had a certain amount of the work done and he wanted more time to complete the balance of it, he would get a certificate to say that he had a certain amount done and that he had to complete so much and say specifically what the extra works were.
Mr. Faulkner: Not exactly, to some extent, but the opposite point is in my mind that if he had not completed the work in accordance with the specifications laid down in relation to the whole scheme he might not be entitled to the grants and loans and so on, and part of whatever money was to be paid to him by the local authority. What struck me was that in the event of his  having two-thirds of it done and that was certified, that would overcome any problem in relation to payment, say, by the local authority or a relationship like that.
Mr. Tully: He might try to use the certificate for something like that but that, most certainly, is not the object of it and it is not intended to have any bearing on it. Is Deputy Faulkner satisfied?
Mr. Molloy: Does the Minister not consider that in section 7 there might be a certain anomaly in that an appeal against the development certificate must be made to the District Court whereas one can appeal against a permission to the Minister?
Mr. Tully: I have not moved 68 but it might be as well if I did, so that we would be able to cover it as suggested. Subsection (7) of the Bill provided for an appeal to the District Court. Amendment No. 66 in the joint names of myself and Deputy O'Brien proposes to substitute the Circuit Court because of the complexities which may arise in particular cases. By virtue of amendment No. 69, subsections (8) and (9) are being replaced by new subsections (12) and (13) which contain the necessary consequential provisions. It would be much better if we tried to relate them. I am sure everybody understands what section 25 refers to. This is a bit complicated to those who have not got the section before them. If Deputies read through the section I am sure they will find it easy enough to understand.
Mr. Tully: During the Second Reading there was a long discussion on this. It is a question of fact. All that has to be cleared here is the question of fact—is it or is it not at a certain stage—and for that reason it was decided that this was the best way to have that item decided rather than going through the normal ramifications of dealing with an appeal board.
Mr. Cunningham: You may have large cases where it may be necessary, due to value in penalty to have it dealt with in the Circuit Court but, surely, there could be small cases, minor cases, which could be dealt with in the District Court, so why send, as they say in the country, the “footling” cases to the Circuit Court and involve all the expense?
Mr. Cunningham: The opposite. I do not mind what was said on Second Reading. This is where we get down to the nitty-gritty bits. If they are small, send them to the District Court and if they are major cases, fair enough, send them to the Circuit Court.
Mr. O'Brien: The reason I put down the amendment was that I come across cases quite regularly. The District Court is just not capable of dealing with the complex planning laws. The amount of abuse in the way the  District Courts are used to violate the planning laws is disgraceful. I come across it time and time again. I do not believe they are capable of dealing with them. It requires more expertise and the Circuit Court is the place. You might think they are very small things but, particularly in the Dublin area, you are talking about vast developments, and violations of our planning laws, particularly in the No. 6 area of Dublin which occur day after day. These people employ firstclass legal experts and they can drive a coach and four through legislation in the District Courts without any bother whatever. They are getting adjournment after adjournment and in my view they are prostituting the District Courts. I believe that this matter should go to a higher court to get more expertise and in my view a better job done and it is important that this amendment would be a reason for it.
Mr. J. O'Leary: There is another reason apart from the costs why these decisions should be taken in the District Court. Apart from all the administrative work, there is the time factor, particularly in rural areas where the Circuit Court sits three to four times a year and there is a long list of law cases. This applies even in children's cases. Parents may have to wait for two years to get their cases on and unless there is a great degree of urgency about it the result will be postponement. I think that on the time factor alone the District Court would be more satisfactory than the Circuit Court.
Mr. O'Brien: It might be in certain places but certainly not in Dublin. Because of this time factor there is sometimes an interval of three to five years and as Deputy Moore will know that in his constituency where the District Court is in use purely and simply for criminal business the appeal would lapse before it could be listed. This is where cases involving big money are involved. They can employ the best counsel and they could play ducks and drakes in the District Court because you have not got expertise in the District Court.
Mr. Faulkner: When I saw this amendment I was rather surprised and felt it must have implied that possibly the District Court might not be able to deal with matters of this kind. The Minister possibly has got legal advice in relation to this, but I am concerned about the question of time. I would agree with Deputy O'Brien that we should try to speed up this type of case but I am not convinced that it is likely to be any quicker in the Circuit Court than in the District Court, though it may be possible that in Dublin it would be a more expeditious way of dealing with them to bring them to the Circuit Court. I do not know, as Deputy O'Leary has said, whether this would apply in the rural areas, but of course the Dublin Deputies can only speak for themselves. Perhaps there is some legal problem involved.
Mr. Tully: There is not a legal problem involved only in so far as our legal people feel that the matters could be better dealt with by the Circuit Court. The complexities which are most likely to come up would be better dealt with in that way. We have a waiting list in the District Court, as you know, and it is mostly because there was an increase in the number of appeals. A number of Deputies have referred to the fact that it would be better to have more senior courts than the District Court dealing with them. I have been trying to find out whether there is any possibility of having two sections, one dealing with the footling ones as Deputy Cunningham refers to the small ones, in the District Court, and the bigger ones to be dealt with in another court. It will not be easy to define because usually it is the money value that will decide which is which, and this will be difficult. We may have to find another way of valuing which would make the matter even worse. If Deputies would like to leave it and let me have a look perhaps we can deal with it on Report Stage, but I am anxious to facilitate the House on this.
Mr. O'Brien: I speak for an area where it operates in the District Court. If you consulted the law agent of the corporation, and it would be worth consulting him on this because he is a man who has to handle these cases in the District Court, I think he would come out on the side of the Circuit Court. I have read through some of these cases, the technicalities and the expertise that are involved in them, and the district justices are just lost, it is way above their heads, they are not able to cope and in many cases then they will make bad judgments because of the fact that they have not got the knowledge to do it. I think it is important that we should decide on the Circuit Court.
Mr. Tunney: I maintain that we should try to counter what the Deputy is saying. He is making the case that monied people are able to drive the proverbial coach and four through the Act at District Court level. If that is so the situation at the District Court should be corrected. We must have a thought for the non-monied person who would and who has the right to appeal. Are we going to drag him through the costly Circuit Court procedure because there is some abuse of the court through which he would normally have recourse? You must take that side of the coin with the other and if, as the Minister indicated, he is prepared to have another look at this and guarantee that the position of the non-monied person would also be borne in mind and that for him or for her obviously the better court is, for many reasons including those mentioned by Deputy O'Leary, the District Court——
Mr. O'Brien: The Deputy should take time off and go down to have a look at the activities of the District Court and the way that cases have been allowed to drag on for years, getting postponed and postponed because they were not able to cope. We will then see a very good reason why something should be done. Maybe the District Court situation should be looked at. As it has been up to now, it certainly is increasingly incapable of dealing with these cases. There is no  doubt about it that in different areas where big developments are going on and where there is blatant violation, these people do not mind spending quite large sums of money in meeting court costs.
Mr. Tully: What I suggest is that the House accept amendments Nos. 66, 68 and 69 in my name and I will have a look at it and see if there is some way in which I can meet the requirements of both the Opposition and Deputy O'Brien at the next Stage.
“(12) Where an appeal is brought under subsection (11)* of this section, the Court, if satisfied that the case comes within paragraph (a) of subsection (7)* of this section and that a dispute mentioned in paragraph (b) of the said subsection (7)* has arisen, may decide accordingly and, as may be appropriate, determine either or both of the following, the extent to which the relevant development was completed before the relevant permission under Part IV of the Principal Act ceased to have effect, or whether or not the part in dispute of the relevant development consists of the provision of things mentioned in subparagraph (ii) of the said paragraph (b), inform the appropriate planning authority of its decision and direct the authority to issue forthwith, if they have not already done so, an appropriate development  certificate or, if a development certificate has been issued which is inappropriate having regard to the decision of the Court, transmit such certificate to the authority and direct that in lieu thereof an appropriate development certificate be issued by the authority forthwith.
(13) Where on an application by a person, the Circuit Court is satisfied that there has been unreasonable delay by a planning authority in dealing with an application for a development certificate and the Court is also satisfied in both of the respects mentioned in subsection (12) of this section, the Court may decide accordingly and make the determination mentioned in the said subsection (12) which is appropriate, inform the authority of its decision and direct the authority to issue forthwith an appropriate development certificate.”
Mr. Tully: By virtue of amendment No. 69, subsections (8) and (9) have been replaced by subsections (12) and (13) and they will correspond with the other subsections. This is a very complicated matter and I suggest that perhaps if the Opposition had a copy of this it might help. Deputy Faulkner stated there might have been changes in the draft. It resulted in half the sections having to be renumbered. That is the only difference that is in it.
Mr. Molloy: Where the court directs that a development certificate shall issue for part of an estate that they deem to have been completed, would the Minister not consider it appropriate that a direction should also be given that the local authority should pay for roads and services in charge? The Minister will appreciate that this has been one of the greatest causes of contention among residents in new housing areas where developers have  left the site without completing their development according to specifications, according to the permission, and the local authority reluctantly have refused to take over these roads and services until they are satisfied that they are completed properly.
If the court deems that a development is completed and that a certificate shall issue to verify that it is completed to the satisfaction of the authorities, surely in such circumstances it might be appropriate in order to strengthen the law in this case that a direction should also issue that in such circumstances when a development certificate is issued the local authority should take these services in charge?
Mr. Tully: I am afraid this would be too complicated. The giving of a development certificate does not mean that work has been completed. If there were 100 houses, 60 of them might be completed but they might not all be in sequence. We could have a situation where we would have ten houses and 30 or 40 yards away the road in front of other houses would not be done. Then in the next street the houses might be done. There is a section dealing with the taking over of estates and I would prefer to try not to complicate matters by including this.
“The planning authority, by exercising their powers under section 4 of the City and County Management (Amendment) Act, 1955, may decide to grant a permission or approval even if the proposed development contravenes materially the development plan or any special amenity area order relating to the area of the planning authority.”
Very briefly, the intention behind the  amendment by way of a new section is to overcome a difficulty that I have knowledge of being experienced by councillors in certain areas. The elected county councillors form the planning authority. They are the body responsible for adopting a development plan for their area. We are assured from official sources regularly that the elected members are the planning authority. Only they can adopt a plan. Yet, the elected members also have power under the City and County Management Act, 1955, section 4, to direct the manager in certain matters to perform certain things as the councillors wish.
One of those things that they can so direct is that a planning permission be granted. I have knowledge of situations where councillors in assessing a planning application made to their local planning authority seeking permission under the development plan that they adopted, having been informed previously by the manager that it was the intention of the local authority or the council to refuse, they not being in agreement, a certain number of members directed that the permission be granted. When such matters come before special meetings thus convened it has happened that the manager stated that in his opinion granting of this permission would contravene the development plan adopted by that authority and that in those circumstances he cannot comply with the directions just given and is obliged to submit this application to the Minister for a decision.
This is a device that is being operated by certain county managers to circumvent the rights of elected local authorities to exercise section 4 of the 1955 Act. The amendment that I propose would make this position very clear. I am informed that some county managers do not read their powers and their responsibilities in this area in the same light as others and that there is an inconsistency in the approach between one local authority and another. Lest it be said that I favour a wholesale use of section 4, especially in planning matters, I certainly do not. I am  aware that the section has been abused in some areas but that is a matter of opinion. If this House is sincere in claiming that the elected members are the planning authority, surely they are entitled to make a decision regarding a planning application made under that plan and in the exercising of their rights under section 4 of the management Act. I would like to have this loophole being used by managers sealed off. I am suggesting that this is a way of doing it. I am sorry that Deputy Callanan is not here.
Mr. Tully: Very often it is difficult to know what is considered fair in planning matters. The amendment in its present form is unacceptable. It cuts across a fundamental principle of the 1963 Act that where a development plan is made or varied the public should be afforded an opportunity to comment, make representations or submit objections. The plan has a binding effect when adopted. Section 22 of the 1963 Act imposed a duty on planning authorities to take steps to secure the objective contained in the provision of the plans. Section 26 required the planning authority to have regard to the provision of the plan when considering an application. Accordingly, the plan serves as a guide to developers and affords protection to property owners. A plan cannot anticipate every eventuality and there must be some provision for flexibility.
Minor departures are permissible and a material contravention may be allowed with the consent of the Minister under section 26(3). But even at that stage, there is a procedure laid down for the giving of public notices, for the making of objections and for the consideration by the Minister of such objections. Section 26 (3) expressly  forbids a planning authority to give permission for development which would materially contravene the development plan or any special amenity order save with the consent of the Minister. The amendment does not deal with the existing statutory provision and is, therefore, objectionable on legal grounds as well as on principle. However, I am not opposed to the intent of the Deputy's amendment. I propose to consider, before Report Stage, whether it would be possible to substitute a new procedure for section 26(3) which would enable elected members to authorise material contraventions subject to consideration of any objections by members of the public or prescribed bodies. A number of sections in the 1963 Act will have to be examined. But, if the drafting difficulties can be overcome, it might be possible to bring in the amendment on Report Stage. I trust that this will meet the Deputy's wishes.
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