Private Members' Business. - Local Government (Planning and Development) (Trees and Woodlands) Bill, 1987: Second Stage (Resumed).
Wednesday, 10 June 1987
Dáil Eireann Debate
Mr. Kavanagh: I would like to thank all Members on the Opposition and Government benches who contributed to this debate and who voiced their concern for the action we have taken and for what will happen if a Bill such as this is not enacted very soon. I could say that the expressions of concern for our environment have the total agreement of the House, but I must express my disappointment that the opportunity this Bill has given to the Dáil to halt the further destruction of the environment, and in particular to achieve the better preservation and protection of trees and woodlands of special recreational or amenity value or of outstanding natural beauty, may not be taken up.
The urgency of introducing this Bill was necessitated by the application received by Wicklow County Council on 26 March 1987 from Bridgefarm Limited, owners of the old Fitzwilliam Estate, Coolattin, County Wicklow. The Bill was presented to the House on 8 April last  in good time to prevent the felling and extraction of trees, mainly oak trees, on 66½ hectares on a site known as Tomnafinnogue Wood which was covered by a tree preservation order number 3282/78.
In view of the expressions by the Taoiseach both in and outside this House, we in the Labour Party had reason to hope that the Bill would have been welcomed by the Government and a speedy passage through both House effected. Therefore, with regret we note that this opportunity was rejected by the Government on the grounds that it is, in the view of the Attorney General, unconstitutional under Articles 40.3 and 43, claiming that the legislation which would amend the Planning Acts so as to abolish compensation in the event of a refusal of consent to fell woodlands would be found unconstitutional.
Over the period of the debate I have been accused by members of the Government party that I had ample opportunity to introduce legislation when I was in Government. When I introduced this Bill I expected to hear criticism of that nature. In 1985 as Minister for the Environment I received the same legal advice as the present Minister and accepted it in good faith. However, since then I have received from eminent legal people contrary advice on Articles 40 and 43 of the Constitution which leads me to believe that there are sufficient grounds in case law and in recent opinions to show that the legal opinion given to me in 1985, and now to the present Minister, is not conclusive.
My colleague, Deputy Michael D. Higgins, dealt at length on the aspects of the legal position vis-à-vis the Articles of the Constitution which confirmed my doubts. Other contributors — Deputy McDowell, Deputy Barnes, Deputy Quill and Deputy Spring — added weight to the argument that the Bill would not be repugnant. I only regret that Deputy John Kelly, who has written extensively on the Constitution, did not take the opportunity to contribute to this debate.
 I also regret that Deputy Garret FitzGerald, whose concern about tree preservation in Dorney Court is well known, did not take the opportunity to contribute to this debate. Nevertheless, we had the benefit of Deputy Kelly's book on the Irish Constitution which was used by Deputy Higgins to back up his case.
When I introduced this Bill on 27 May I offered it to the Government to take it on board and to make any changes they considered it needed. We were told by the Minister of State at the Department of the Environment that the Government would bring in their own legislation in the autumn session. One can only assume that the Government are adopting a dog-in-the-manger attitude and that if there is a solution on the basis of our Bill then Fianna Fáil will bring in the legislation and no other party will gain any kudos from it. I am afraid that is delaying an urgent matter to the probable detriment of Coolattin. Nevertheless, we will wait and see what the Government Bill will provide as a solution. I am prepared to bet that their Bill will have many similarities to the Bill we have already presented in the vital area of amending the planning acts. We all hope that the Bill, when it is brought before the House, is not too late to preserve Coolattin Woods.
The action of the Minister of State in charge of forestry in issuing a prohibition order against Bridgefarm's application for a felling licence is welcomed by all Members and I believe it will give the Government time to consider their legislation during the summer recess. However, it raises some concern for me arising out of the advice given to me by the Department in the last two years. I was invited by the Coolattin Woods Action Committee in August 1985 to a meeting in Shillelagh — I was Minister for the Environment at the time — and the Minister for Fisheries and Forestry was represented at that meeting by a senior official and a local forester. Clear assurances were given then that the replanting requirements in the consent for the felling of trees at Brow Wood and Drumgall Wood were being strictly  monitored and would be so in the future. When Mr. Couchman wrote to me, as Minister for Fisheries and Forestry, later in 1986 I was able to assure him then, on the information I received from my officials, that the monitoring had taken place and was continuing. I was able to assure him that the replanting was being done in accordance with the arrangements and the surveillance that had been carried out by the Department. The same information was given on 4 February to Deputy Hussey who was then Minister for Social Welfare by former Deputy Paddy O'Toole who was then Minister for Tourism, Fisheries and Forestry. I assume that the same officials drafted both letters and advised the Minister of State, Deputy Smith, when he entered this debate on 27 May. In the course of that debate, as reported at column 3094 of the Official Report, he said:
I was in the position to make this decision because during a random visit to that wood in early May it was brought to my notice that the conditions which applied to the earlier licences had not been complied with. On receipt of that information I instructed officials of my Department to carry out an exhaustive and comprehensive inspection of the woods which had been clear felled and recently replanted. My fears were justified as the inspection demonstrated beyond all shadow of doubt, and to my satisfaction, that the mortality rate of the saplings or new plants is of such an order as to make it very easy for me to put a prohibition order on the present notice which is before me. The mortality rate of new plants in the clear felled area is of the order of 30 per cent. In some of the oakwood species it is over 40 per cent but on average in both the conifer and broad leaf species, particularly oakwoods, it is over 30 per cent. An acceptable level of mortality would be between 10 and 15 per cent but a mortality rate in the order of 30 per cent is totally unacceptable. Although I cannot claim to have any technical expertise in this matter I am  strongly of the view that if you clear fell, particularly in relation to the replanting of oakwood species, it is very necessary for the young crop to have shelter and be protected from frost and heavy rainfalls. The growing and maturing older trees compete for unwanted vegetation which allows the young trees to develop.
The Minister has a responsibility to me and to former Deputy Paddy O'Toole to explain how he can be given information which is at variance with that given to his two predecessors. I am happy that officials in the Department are well versed with the area but I find it difficult to accept that within a month different advice could be given to at least three Ministers. That concerns me and the Taoiseach, who is present, should be concerned. I look to the Minister to find out who has given the information and whether it was given to us in the hope that it would make us happy.
Mr. Kavanagh: I have pointed out to the Minister that I have received information which is different from that given to me in 1985. I hope it will be used by the Minister when he is preparing the new legislation for the autumn session. I will not mind if the Minister brings in what we introduced. There will be satisfaction in the knowledge that I put the Minister on the right road.
All speakers from the Government side have endeavoured to deflect the attention of the House from the genuine efforts of my party to achieve a solution to the urgent problem of the attack on our environment by concluding their contributions with personal attacks on me. I am prepared to compare my record of concern for Coolattin with any Deputy going back to 1977 when the problem arose with the sale of the Fitzwilliam Estate.
I should like to remind the House that  on 16 January 1978 I proposed a notice of motion at a meeting of Wicklow County Council drawing attention to what was likely to happen at the Coolattin estate. I expressed concern for the woods and asked the council to take account of what was happening and apply tree preservation orders to the woods. On 31 October of that year I signed more than 30 TPO's covering the woodlands and the trees in the Coolattin estate. The effect of bringing in tree preservation orders on the woodlands was that the woodlands were taken out of the exclusive purview of the Forestry Acts and put into the amenity and planning sections of the Planning Acts thereby making the local authority the responsible body for the woodlands. Wicklow County Council then became responsible for the amenities of the Coolattin area. A further development took place later in 1985 and the Minister for the Environment dealt at some length with that aspect.
It is one of the more interesting comments in his speech because much of the case he made for future preservation of trees hangs on what he said. In columns 3083-84 of the Official Report of 27 May he said:
Each individual tree preservation order is required to apply, in relation to any consent under the order and any application for such consent, provisions of Part IV of the 1963 Act which relate to applications for permission to develop land. In the past, it was left very much to the individual planning authorities to decide for themselves which provisions of Part IV should apply in making tree preservation orders. However, the situation is now very different in that my Department, in January 1986, issued to all planning authorities a document containing detailed advice and guidelines in relation to the making of tree preservation orders, together with a new model tree preservation order.
This new order provides for the  application of all of the relevant provisions which apply in relation to planning applications generally, including the provision for the making of submissions by interested parties to the local planning authority, the notification to such persons of the planning authority decision and the making of appeals to An Bord Pleanála by any person, whether the applicant for the consent or a third party. The guidelines themselves reminded local authorities that a right of appeal is fundamental to the whole planning control system and they recommended that this should be provided for in every future tree preservation order.
It was recommended also that the provision for appeals should cover third parties as well as the applicant for consent, since the basic principles underpinning the planning control system require that the position of such parties should be fully protected. In line with this, the model tree preservation order now makes provision for applicants for consent to publish notice of their intention to do so, and provides also for the notification of consent decisions to any third party who has made representations at local level.
I was Minister for the Environment in 1986 and perhaps the Minister could have been generous enough to acknowledge that fact and also that the guidelines and model tree preservation order were designed under my aegis at that time. I am glad that the Minister acknowledges the benefit——
Mr. Kavanagh: To say, as he and his colleague behind him did, that I was sitting around doing nothing is unfortunate because it is not true. I have been concerned about this problem over the years and, as a result of my actions, the public can use the Planning Acts and there can be objections by third parties to An Bord Pleanála. The action which the Minister is now able to take is a direct result of  those guidelines and the model tree preservation orders.
It is interesting to read in the document which was prepared by the Taoiseach when he visited County Wicklow in April this year that these new powers were again stated. I am sure he was made aware of them and that when he read the council's policy in relation to areas covered by tree preservation orders he must have been impressed at the actions taken as a result of such orders——
Mr. Kavanagh: The Taoiseach may say that but I set out what happened and the problems which have arisen as a result of defective legislation whereby compensation still remains to be paid. In any event, the Taoiseach read in the document that the council received seven applications for consent to felling of trees covered by tree preservation orders in Shuttles Wood, Quills Wood, Brow Wood, Mill Wood and Drumgall Wood. Given the limitations imposed by compensation provisions in section 45 of the Local Government (Planning and Development) Act, 1963, the council in granting consents were able to achieve the imposition of conditions which had the effect of reducing the impact on the landscape, ensuring that the area was replanted with oak, the retention of specifies bands of trees and shade and shelter for new trees. The above objectives are achieved by the imposition of 25 specific conditions on consents which provide for (1) the lodgment of cash security for compliance with conditions, (2) the retention of specifically numbered trees, (3) the retention of immature trees, (4) requirements to leave a double stand of oak on the boundary to woods adjoining public roads and (5) requirements that no tree of one metre girth or less at breast height or any yew or holly tree be felled.
It must be remembered that the Coolattin tree preservation orders cover a number of individual woodlands. Each  application is referred to An Foras Forbartha and to the Department dealing with fisheries and forestry in addition to the council's staff. Meetings were arranged on the site to discuss each application. In addition to technical reports, applications were discussed with elected representatives of the area together with interested local groups. An Taisce, the Department, Mr. Couchman, Chairman of the Coolattin trees committee and any other person who raised an objection to a specific application were notified of the council's decision to grant consents. None of the decisions of the council was appealed to An Bord Pleanála within the prescribed period, presumably because the various interest groups were satisfied that the council had achieved the best possible compromise in dealing with the application. That submission, which has not been questioned by the Deputies who contributed tonight, indicates that everybody was satisfied because under the new guidelines issued and the model tree preservation orders they were in a position to appeal any of these consents given in 1986. Those bodies, the county council or its individual members, An Taisce and the trees action committee all had the ability to appeal but none of them did and, therefore, rather than pointing the finger in my direction when the powers were given to those bodies and to the members of the council, they should look into their souls to see if they were neglectful in any way
Mr. Roche: Some of the people mentioned are not here and cannot put the record straight. It is incumbent on me to say that the people mentioned were concerned that the orders to which the Deputy referred were not met which has precipitated the action taken——
Mr. Kavanagh: I simply want to state the facts presented to the Taoiseach by Wicklow County Council, an authority of which Deputy Roche and I are members. That is the council's factual description of what happened right up to the present. If there is a problem in that regard Deputy Roche can set me right about it. We have been on this side for only a few short months but we have taken an initative about the preservation of Coolattin. Deputy Haughey had been on this side of the House for the past few years and I cannot recall any notice of motion being brought about Coolattin. I do not remember any letters coming from Deputy Roche to me showing his concern.
Mr. Kavanagh: I have never seen one from the Deputy, though his concern has been shown in recent months. The Deputy's concern for the environment and the amenities of County Wicklow has got to be questioned to some degree. The Taoiseach should know that under the Planning Acts development plans are drawn up for counties with the assistance of and the full knowledge of members of local authorities who are the custodians of our heritage. County Wicklow is the most beautiful county in Ireland and therefore a development plan should be accepted. However, in 1985 Fianna Fáil got a majority on Wicklow County Council for the first time in history — I will not say how the campaign was fought because it would be unfair in a debate of this kind. They got 13 out of the 24 seats.
 Since then they have maintained power in that local authority. During my time in that authority we had planning boards for each area and interested people were encouraged to come in to discuss development plans or applications for planning permission. In the time since Fianna Fáil got their majority we have had 69 section 4s tabled by members of the council under the 1955 City and County Management (Amendment) Act to direct the county manager to grant permission against the advice of his specialist advisers to build various dwellings etc, to change decisions. Of those 69, 55 have been in the names of Fianna Fáil councillors. That underlines the concern felt by Fianna Fáil in Wicklow, and of course Deputy Roche is a prominent member of the county council. When I was a member of the council from 1974 to 1984 we did away with all section 4s. Again we are becoming the county of section 4s and receiving denunication in all areas for the use of that section to direct the manager to reverse decisions. The damage that can do to our environment is as bad as that being done in Coolattin. When Deputy Roche comes in here and calls me names I would ask him to look into his heart and then give a bit of direction to his party in their operation of the Planning Acts so as to ensure that that activity will stop as quickly as possible, for the good of our county.
Mr. Kavanagh: I have said that the Deputy is a very prominent member of his party, a very vocal member of the council and I am speaking about the concern he shows in County Wicklow. I hope the Government will act on a final appeal to look again at our legislation. I understand that both they and Fine Gael will be opposing this legislation. I regret that. I appeal to them to reverse that decision and accept that the initiative we have taken on reasonably sound grounds should be supported. I ask the Minister  to say that he will take this Bill, have it studied again, use the examples we have given throughout the debate and see whether the changes we would like to see in the Planning Acts could be adopted, particularly because of the new feeling in the country about Articles 40 and 43 of the Constitution. I will finish by repeating the remarks of Deputy M. Higgins on 3 June last when he said:
That case law is there and those opinions are there. It seems an extraordinary view of the Attorney General's office to be advising a senior Minister such as the Minister for the Environment in the way in which it has been reported to the House. It has implications of a more conservative kind that go far beyond the question of Coolattin Woods or the trees and woodlands, because it spills over into the whole area of amenities and compensation. To run away from the whole issue of compensation by seeming to accept it and establishing a working party which would deal with the nuts  and bolts of the establishment of levels of compensation is to fire away the principle before one even has begun to test it. The appropriate way for the Legislature and for Government is to frame the law with prudence and care, as speakers have said; that having been done, to make the assumption of constitutionality and let others test it before the courts.
That is the proper way for the Minister to proceed. He has said he is opposing this Bill. In the words of Deputy Higgins, I appeal to the Minister, for the good of our environment, of our amenities and our heritage, to take our Bill and have it studied again, with the information he has received from eminent Deputies on all sides of the House, and stop pointing the finger at whom he regards as the best and worst environmentalists among us. We should do something urgently for Coolattin Woods and for all the other woodlands throughout the country.
Cosgrave, Michael Joe.
De Rossa, Proinsias.
Gibbons, Martin Patrick.
Higgins, Michael D.
O'Malley, Desmond J.
Coughlan, Mary T.
Gallagher, Pat the Cope.
Haughey, Charles J.
|Hilliard, Colm Michael.
Kitt, Michael P.
Nolan, M. J.
O'Dea, William Gerard.
Wilson, John P.
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