Planning and Development Bill, 1999 [ Seanad ] : Report Stage.

Tuesday, 13 June 2000

Dáil Eireann Debate
Vol. 521 No. 1

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Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  On a point of order, how many additional lists of amendments are there? So far I have the seventh list of amendments. Are they all included in the green list of amendments?

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Yes. Amendment No. 1 is consequential on amendment No. 347 and these amendments may be taken together by agreement. Is that agreed? Agreed.

Minister for the Environment and Local Government (Mr. Dempsey): Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 1:

In page 17, lines 14 to 17, to delete “TO EXTEND THE TENURE OF MANAGERS UNDER THE LOCAL GOVERNMENT ACT, 1991, AND, FOR THAT AND OTHER PURPOSES, TO AMEND THAT ACT;”.

This amendment proposes to delete the amendment introduced on Committee Stage that provided for the extension of tenure of city and county managers. A separate local government Bill will be introduced containing this provision. This is being done so the new tenure arrangements can be introduced quickly, with certainty and in light of the commencement of the expiration of a number of existing tenure contracts over the coming months.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Having already changed his mind about the tenure of office of county managers, the Minister is now changing his mind again. Does this mean the provisions included in the Bill to modify the tenure of office of county managers are being deleted and will be the subject of another Bill? If so, when will we see that Bill and does the Minister intend to take it before the end of the month?

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  Yes. We are removing what we inserted on Committee Stage to provide for the extension of the tenure of city and county managers. A separate Bill will be introduced and passed before the recess. We are not changing the provision but dealing with it in a separate Bill.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  It is the Minister's intention to bring the Bill before the House.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I am sure I will have the Deputy's co-operation as he has supported the provision up to now.

Amendment agreed to.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendments Nos. 2 and 16 are related and may be taken together by agreement. Is that agreed? Agreed.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I move amendment No. 2:

[37] In page 17, line 25, after “and” to insert “Sustainable”.

This amendment concerns the extensive debate on Committee Stage during which Deputy Gilmore and I made the case that if we were to take seriously this Government's adherence to the previous Government's statement of principle on sustainable development, we should insert it in the Bill. The Minister disagreed on Committee Stage and would not accept the amendment on the basis that it was impossible to define the notion of sustainable development in a way that would be helpful to the Bill.

Last week the House began Second Stage of the Town Renewal Bill. That Bill has a completely different function to this Bill and provides incentives to help the development of towns of a particular size. I will not go into the provisions of that Bill. The Minister and the Department are unable to produce a usable definition or concept of sustainable development for the Planning and Development Bill yet are able to produce a Town Renewal Bill aimed at promoting sustainable development.

My argument, which is straightforward, unsophisticated and unabstruse, is that if we can talk about sustainable development in the context of the Town Renewal Bill and the development of towns, surely we can do so in the context of the Planning and Development Bill. All developments which take place with the aid of tax incentives will have to go through the normal planning process with which this Bill, by and large, sets out to deal. I support Government action and legislation which offers tax incentives designed to promote sustainable development in towns with a population between, and the Minister will correct me if I am wrong, 500 and 6,000. However, surely we can make sustainable development part of all planning legislation and not just that part of it affected by tax and other incentives being made available to these towns.

The Minister and the Department have shot down the case they made on Committee Stage. If we can include provisions promoting sustainable development in certain towns in the Town Renewal Bill, we can talk in reasonable terms about putting the idea, concept and promotion of sustainable development at the heart of planning legislation. This Bill is updating, revising and amending planning legislation and there is no case for not including reference to sustainable development. I urge the Minister to accept the amendment.

Ms McManus: Information on Liz McManus  Zoom on Liz McManus  I support the amendment. I would be concerned if the Minister does not accept the amendment and it would be extraordinary if the reason for not accepting it concerns the definition of sustainable development. Deputy Gilmore provided a definition and I have no doubt the combined wisdom of the Department could improve on that proposal.

This Bill is a statement about how we as a society view development. It should not simply [38] become another planning Act passed without recognition in the Title of the fact that we now understand more about the positive and negative aspects of development. The Bill should make it clear that we have a political and almost an ethical perspective on development and how it needs to be regulated, encouraged and controlled, depending on the circumstances.

The term “sustainable development” is universally understood and the Minister is making a statement by refusing to adopt a guiding principle accepted across the world. This is particularly the case in a Western society capable of truly adhering to principles of sustainable development. The Minister promotes himself as progressive and intent on leaving a legacy, but it is worrying if he is unable to make a modest amendment to the Title of the Bill which sets out the context within which legislators, local public representatives, officials and communities can work under the fundamental principle of sustainable development.

Mr. Gormley: Information on John Gormley  Zoom on John Gormley  I support this amendment and, like Deputy Dukes, urge the Minister to accept it. It is crucial that the Title incorporates the word “sustainable”. The Minister said he does not have a definition of sustainable development. As he is aware, the term has many definitions, the most famous of which is the Brundtland one, which states that sustainable development is development which meets the needs of present generations without compromising the needs of future generations. Future generations will ask why in the year 2000 a Government, whose members professed to be progressive and interested in sustainability, omitted that word from the Title of this Bill. My definition of “sustainable development” is development that improves the quality of life for present and future generations.

We had a good debate during questions to the Taoiseach when Deputy Burton put forward his ideas on a quality of life index and Deputy Quinn also made a good contribution. In response to a question I put on that matter, the Taoiseach said the Government was committed to sustainability but, as in the case of the Minister, he was not sure how to go about introducing a quality of life index. This relates to the exclusion of environmental NGOs from social partnership. They need to be part of the equation. If they were, that would highlight the Government is truly committed to the notion of sustainability.

Sustainability has become a buzz word and I have noticed the Minister peppers his speeches with it. Yet when it comes to the crunch, he has not included the word in what is probably one of the most important environmental Bills to go through this House in the three years the Government has been in office and for a number of years prior to that, given that, as Deputy McManus said, it will set the context for future planning and development.

The Government is sending out a signal that it is not genuinely interested in sustainable develop[39] ment. I have read documents from the Department that state the Government is committed to sustainable development, as it will improve the eco-efficiency of our motorways. That strikes me as a contradiction in terms. The problem is there is a contradiction in the Government's approach to this area. It talks about sustainability, but introduces a national plan that is not sustainable. We have phenomenal economic growth but very serious environmental problems. The Government has not come up with an answer. The reason it has not is that the sustainability agenda it professes to have is in tatters. It does not exist.

The Government will not include the word “sustainable” in the Title because a case could be brought to court challenging a development that is not sustainable. I would like the Minister to respond to that point. It would be terribly remiss not to include that word in the Title.

I would like the Minister to outline his definition of “sustainability”. What definitions has he considered and why does he consider the word cannot be incorporated in the Title? Public-private partnerships are dealt with in later sections and too many shortcuts are being taken in this area. That is part of the unsustainability agenda of the Government. How could an incinerator that a public-private partnership proposes to put in place or the planned motorways be called sustainable? How can the Minister claim they will be sustainable? Is he admitting the national plan put forward by the Government is not ecologically sustainable?

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  We had a long discussion on this matter in the Seanad and on Committee Stage when I indicated I would reconsider whether the Short Title should be amended to the “Planning and Sustainable Development Bill”. Having reconsidered it, I am of the view that it would be wrong to change the Title.

Deputy Dukes illustrated my point when he mentioned that the term “sustainable development” is referred to in the Town Renewal Bill, sustainable development of towns with a population ranging from 500 to 6,000 being one of its core aims. Deputy Dukes's point which emphasised that this will not be the only Bill that will deal with sustainable development underlines the reason for my decision on this matter.

This Bill relates primarily to land use for planning purposes and does not cover the much broader concepts associated with sustainable development in its entirety. That is an important point. In line with Government policy and its international commitments to infuse the concept of sustainable development across all sectors, to entitle this Bill, the “Planning and Sustainable Development Bill” could give rise to the impression that the job of implementing sustainable development principles has been [40] finalised. In other words, it could be assumed that such principles are all contained in this Bill, which is not the case. Such an interpretation would make the proposed Title misleading.

This amendment is related to Deputy Gilmore's amendment, which proposes to insert a definition of sustainable development in the Bill. As I said on Committee Stage, the phrase “proper planing and sustainable development” is included in the Bill. In drafting the Bill and since Committee Stage, given the strong views expressed on this matter on that Stage, a good deal of thought has been given to question of defining sustainable development. The concept of sustainable development is so dynamic and all-embracing that any legal definition would tend to restrict or stifle it or, alternatively, we could end up with a definition that would be so vague that it would cause endless difficulties to those working within the planning system.

In response to what Deputy Gormley said, the inclusion of such a definition could encourage a raft of legal challenges to development plans and the granting of planning permissions. The Deputy mentioned the Brundtland definition of sustainable development, but there are many more definitions. There have been enough legal loopholes in planning and development law down through the years and I do not intend to introduce any more in this Bill.

The Bill deals with proper planning and sustainable development. Sections 10(2)(a), 10(2) (d) and 34(2) refer to proper planning and sustainable development. We have tried to weave the concept of sustainable development into the fabric of the Bill and to give effect to it in practical ways. For example, section 10 provides that the development objectives to be contained in development plans will cover the environmental concerns people have in this modern age. They include enhanced opportunities for the public to participate in planning for their localities through the local area plans; environmental assessment of regional planning guidelines, development plans and local area plans contained within the Bill; new environmental measures to protect the landscape; simple tree preservation orders; measures to facilitate the protection of public rights of way, the comprehensive protection of our architectural heritage, and so on. All those objectives are different aspects of sustainable development.

I do not intend to accept these amendments, as the concept of sustainable development permeates the Bill. It is preferable to provide for sustainable development in that way in the Bill rather than to include a narrow definition of it that could give rise to problems later.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  The Minister has used a great number of words but what they boil down to is that the Government is afraid of what is involved in undertaking a commitment to sustainable development. For that reason it does not want to insert it into the Bill. That is the reason we are [41] going backwards in terms of meeting targets on greenhouse gas emissions, that the Minister is unable to tell the House the date by which no more raw sewage will be pumped out of towns into the watercourses and the reason he is unable to tell the House a whole series of other things about the protection of the environment. The Minister has given the weakest response that could possibly be imagined. He is afraid that if “sustainable” is included in the Title of the Bill, people will get the impression that only this Bill deals with sustainable development. How in God's name can the Minister make that as an argument? How can he pretend for an instant that if we say that this Bill deals with planning and sustainable development there is not other legislation to do with sustainable development? This Bill has to do with planning. Basically it is a land use Bill. We all know there are many other areas that require legislation where the concept of sustainable development will have to be repeated. To put that description in the Title of the Bill would not alter it. To put a definition in the Bill would not give rise to the impression that this is the only place where we need to do it. It would not restrict or stifle the concept of sustainable development. What I am worried about – and, I think, all of this side of the House – is that we have already restricted—

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy is making his second contribution.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Yes, Sir.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy is limited to two minutes.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Thank you, Sir. I have to confess that is news to me.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  As the mover of the amendment the Deputy will have another opportunity.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I accept that. There is much more I wanted to say. The Minister, by including references to sustainable development in sections 10(2)(a) and 10(2)(d), is making my point for me. He is saying there are cases where this definition can be used. There is no reason it should not be put in the Title and there is no reason for not accepting Deputy Gilmore's amendment because that is the definition that has been accepted by Governments as a basis for, among other things, the Kyoto agreement. I am pressing this amendment.

Mr. Gormley: Information on John Gormley  Zoom on John Gormley  The Minister referred to international commitments. We have signed up to international commitments but in many instances we have not complied with those commitments, in particular, the Kyoto agreement, with which [42] we have not a hope of complying. Given that our CO2 emissions are going through the roof we will be faced with a large bill. The United States has not ratified but the EU will ratify and we will find ourselves in a difficult position not only in respect of international agreements but even within the context of the EU. The Minister knows that. Yet we are sending out a signal today that when it comes to sustainable development we will not take it too seriously. We will incorporate it into certain sections of the Bill. The Minister's argument in itself is not sustainable. He said that if it is included in this Bill we would cut ourselves away from other aspects and that we should not broaden the argument. I believe sustainability should be part of many different Bills, but that is not an argument. He may be afraid, and he has confirmed that he would face legal challenges. He will face legal challenges regardless. The more watertight a definition, the better. On the one hand, the Minister mentioned sustainable development in section 10. Is the Minister saying he is not afraid in that instance of facing a legal challenge and yet if it is not included in the Title that that will not happen? That seems a slight contradiction.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy's two minutes—

Mr. Gormley: Information on John Gormley  Zoom on John Gormley  To have some level of consistency he should insert it in the Title because it is setting the agenda. By setting the agenda, without mentioning sustainability, he is giving carte blanche to those interested in unsustainability.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Minister has two minutes if he wishes to reply. Does Deputy Dukes, as mover of the amendment, wish to reply?

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I thank you for your information to me about the new rules for Report Stage debates. I do not intend to speak for an unlimited period. I simply ask the Minister to think again. The definition proposed by Deputy Gilmore, amendment No. 16, is the internationally accepted definition. It is what Governments have in mind when they adopt measures such as the Kyoto convention or other environmental measures. There is nothing in it that would cause a problem for planners here that would not already be caused, if problems are caused, by sections 10(2)(a) and 10(2)(d). I urge the Minister to confirm that the Government believes in the concept of sustainable development and to insert it in the Title and in the definitions section. I urge him to accept it and to get on with the rest of the Bill. If that is done we will have done a good day's work.

Amendment put.

Barnes, Monica.
Barrett, Seán.
Bell, Michael.
Belton, Louis.
Boylan, Andrew.
Bruton, John.
Bruton, Richard.
Burke, Liam.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul.
Cosgrave, Michael.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Farrelly, John.
Finucane, Michael.
Gormley, John.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
[44] Hogan, Philip.
Howlin, Brendan.
McCormack, Pádraic.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Olivia.
Naughten, Denis.
Neville, Dan.
Ó Caoláin, Caoimhghín.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Perry, John.
Rabbitte, Pat.
Ryan, Seán.
Sargent, Trevor.
Sheehan, Patrick.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Yates, Ivan.

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Ardagh, Seán.
Aylward, Liam.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Cullen, Martin.
de Valera, Síle.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Fox, Mildred.
Gildea, Thomas.
Hanafin, Mary.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael.
Kitt, Tom.
Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGennis, Marian.
McGuinness, John.
Martin, Micheál.
Moffatt, Thomas.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Malley, Desmond.
O'Rourke, Mary.
Power, Seán.
Reynolds, Albert.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Wade, Eddie.
Wallace, Mary.
Walsh, Joe.
Woods, Michael.
Wright, G. V.

Amendment declared lost.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I move amendment No. 3:

In page 18, line 14, after “structure,” to insert “dirigible,”.

We also discussed this matter on Committee Stage. The purpose of the amendment is to insert “dirigible” in the Bill's definition of advertisement which means “any word, letter, model, balloon, inflatable structure, kite, poster, notice, [45] device or representation..”. As I explained on Committee Stage, I wish to insert dirigible because there are objects which are similar to balloons but have their own motive power. A dirigible is a balloon which has one or more engines which allows it to move around. The ones which immediately come to mind, although they are bad examples, are the R101 and the Hindenburg. There are currently in production dirigibles which frequently have an advertisement attached or painted on the side. Does the Minister's definition of balloon include that?

The Minister's inclusion of balloons and inflatable structures means that one will have to get planning permission to send up a tethered balloon with an advertisement because it is not an exempted development. If the balloon is not tethered but can move around, and is therefore a dirigible, should it not require the same permission? This would seem to follow the logic of the section. I hope the Minister does not shoot this amendment down in flames.

Ms McManus: Information on Liz McManus  Zoom on Liz McManus  I support the amendment and thank Deputy Dukes for explaining what a dirigible is. I asked one of my colleagues about ten minutes ago and with great certainty, he explained it meant directional. I will have to tell Deputy Rabbitte he is not always right.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Some of us had suspected that for a while.

Ms McManus: Information on Liz McManus  Zoom on Liz McManus  I am not sure whether it is absolutely necessary to include this term, but it is probably better than leaving it out. When we talk about dynamic in terms of sustainable development, there is nothing more dynamic than the advertising world. Advertising is an aspect of life which is becoming increasingly intrusive. There are often instances where the restrictions of the Planning Act would be immensely helpful in protecting the public interest and keeping some kind of control on advertising. It would be advisable for the Minister to accept this amendment to be on the safe side. It may have to be amended in the future for some other form of creative advertising impulse.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  Deputy Dukes seeks to include the word “dirigible” in the definition of advertisement. We discussed this on Committee Stage when I explained that the dictionary definition of a dirigible is “a navigable balloon or airship”, in other words, one that can be directed or moved around. Deputy Rabbitte was in the ballpark when he said it meant directional. If a balloon or airship-shaped advertisement is being used, it is well covered by the definition which states that an advertisement means, inter alia, “any balloon, inflatable structure, device or representation employed for the purpose of advertisement”. That definition is more than adequate and covers the Deputy's concern. The problem with expanding the definition and accepting the Depu[46] ty's amendment is that it would give the impression that flying an airship would require planning permission, which I am sure would not be the Deputy's intention. For that reason and because the definition is sufficiently wide, I cannot accept this amendment. I ask the Deputy to withdraw it.

Amendment, by leave, withdrawn.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I move amendment No. 4:

In page 18, line 21, after “includes” to insert “turbary,”.

This amendment is intended to ensure that turf production is included in the definition of what constitutes exempted development. The Minister will probably reply that his amendment No. 23 will give him the power to exempt any class of development for reasons connected with its size, nature, limited effect on surroundings, etc. As the Minister explained on Committee Stage, he would prefer to have turf production outside the scope of exempted developments, in other words, to be a regulated activity, and to use the powers proposed in amendment No. 23 to exempt small scale turf production. I am not happy with that. I would be much happier if we were to classify turf production, like agriculture, as an exempt development and for the Minister to have the power to include in the planning laws developments over a certain size, in other words, to turn his amendment No. 23 on its head. I would be much happier if the presumption was that turf production is always an exempt development and that large-scale turf production could be regulated, rather than what the Minister proposes in the Bill, where all turf production comes under the requirements of the planning laws but the Minister may exempt certain smallscale developments.

The reason for that is very simple. Substantial numbers of people around the country derive a certain amount of their income from turf production. There are also people who derive no income from turf production but cut turf for their own use. Other people make their livelihoods by cutting turf for other people but do not, in any real sense, market turf on a large scale. There are also people whose sole business for a substantial part of the year is contracting to cut turf for the owners of the turf banks as their fuel supply for the winter. We should not make life any more difficult for those people or give them the impression it will be made any more difficult. They will be worried by the Minister's proposals in the Bill.

If we adopt the course proposed by the Minister, where turf production falls under all the provisions of the planning law but he can exempt certain types or sizes of activity, we will inevitably have arguments about where the line should be drawn. It can be taken as given that, wherever one draws the line, somebody will be on the wrong side of it. That would be unnecessarily [47] acrimonious and divisive. However, if we do it the other way around, make turf production an exempted activity and give the Minister powers, notwithstanding that general exemption, to apply controls in a certain way, it will be much easier to get agreement and understanding, and the people who are being regulated will have far less of an argument to make than the many people who should remain unregulated.

I do not doubt that the Minister intends to do his best under the procedure he proposes to meet the kind of case that I and some of my colleagues have been making. However, I think that will be an unnecessarily difficult and acrimonious procedure. It would be far better if the Minister accepted my proposal to make turf production generally an exempted development and to take powers to specify, notwithstanding that exemption, that certain scales of activity are subject to regulation. I commend the amendment to the House.

Mr. Naughten: Information on Denis Naughten  Zoom on Denis Naughten  I support Deputy Dukes's amendment. We had quite a detailed debate on this issue on Committee Stage. Turbary rights were copper-fastened in the 1963 Act. These are traditional rights that have been handed down from generation to generation and are vested in the Land Registry in Setanta Place and the Four Courts. People have been entitled for generations to cut turf on bogs, whether the bogs belong to the State or another landowner.

We are talking about smallscale domestic or commercial production. These people have invested a lot of money in equipment over the years. Contractors have moved away from the sausage machine, which everyone agrees damages the bogs, and towards the hopper, which does not damage the bog or aquifer and maintains the ecosystem in the bogs. We are not talking about hundreds of thousands of acres of lands. Most of these people own one acre plots of bog, half of which have been cut out at this stage. Therefore, we are left with approximately half acre plots on the edges of bogs. Whether these people will be exempted from planning permission will depend on what regulations the Minister introduces.

Dúchas is now saying that, under its guidelines, a landowner will be allowed cut only 15 hoppers of turf, which is approximately two and a half spreads of turf. Is the Minister laying down the same guidelines and regulations for turf cutting under the Bill? Anyone who cuts over two and a half spreads of turf will have to seek planning permission from the local authority.

The planning process in Roscommon is chaotic at the moment, as I am sure it is in every other local authority. It takes a minimum of four months for an application to go through. We are now adding further bureaucracy which will delay the planning process. While the Bill is supposed to improve the planning process, it will actually slow it down if every turf cutter in County Ros[48] common has to apply for planning permission to cut three or more spreads of turf.

The Minister will destroy the livelihoods of many people throughout the country who traditionally cut turf over the years for sale on a small commercial basis. A number of people reared their families and put them through college on the income they earned from turf cutting. This livelihood is now in jeopardy under the Bill.

Deputy Dukes has proposed a solution to the problem, which is to exempt turf cutting generally and restrict large-scale production. We all accept there are problems with large-scale production and the current guidelines. However, why should a small producer be crucified under this legislation? The Bill is taking away people's democratic rights under the Constitution and Land Registry laws and leaving them high and dry. The requirement to seek planning permission will cause immense bureaucratic difficulties, due to the need to refer it to Dúchas and so on, and might take so much time that the cutting season would be lost in a particular year. I ask the Minister to review the situation, think of the livelihoods that could be destroyed by the Bill and accept Deputy Dukes's amendment.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  We should not get too carried away about the effect of what I am proposing. Deputy Naughten's passionate plea for the turf cutters of Roscommon and other parts of the country would be echoed on both sides of the House. If we were going to do what the Deputy thinks or says we will, those people would have a right to be concerned, but that is not our intention.

If we had an absolutely free hand and there was no problem about this, I would be very sympathetic to Deputy Dukes's approach. However, what he is proposing is what applies currently and we have to change it because of a European Court of Justice ruling. The situation under current legislation, probably for all the reasons stated by the Deputies opposite, is that peat extraction involving over 50 hectares requires planning permission and an EIA.

The European Court of Justice, in September 1999, determined that Ireland had exceeded its discretion in setting the EIA threshold for peat extraction at 50 hectares because this failed to take into account the nature and location of lesser sized projects. The Irish exemption was based solely on an area and, because the planning and the EIA thresholds are the same, there was no scope for planning authorities to consider such issues as, for example, the nature and location of commercial projects under the EIA threshold. As turbary at that time was exempted development under the 1963 Act, it could only be brought within the planning system where it exceeded the EIA threshold of 50 hectares. That was and still is the situation.

The European Court noted in its judgment that even smallscale projects can have significant effects on the environment if they are in a [49] location where the environmental factors set out in Article 3 of the directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. In addition, the court pointed to the fact that no project for the extraction of peat in Ireland had been the subject of an EIA although “smallscale peat extraction has been mechanised industrialised and considerably intensified, resulting in the unremitting loss of areas of bog of nature conservation importance”.

As a result of that judgment there is a need to re-examine the current exemptions for projects under 50 hectares under both the planning and the EIA codes. With regard to planning, the approach envisaged under this Bill is, first, to de-exempt peat extraction as we are required to do and, second, to make provision in regulations under section 4(2)(a) for an exemption for domestic turf cutting and smallscale peat extraction of a commercial nature, such as Deputy Naughten mentioned. I assure the Deputy that the people for whom he is speaking are and will be covered under the regulations. Deputy Dukes will be delighted to know that the regulations will have to come before the House so there will be an opportunity to discuss them. Deputies will have an input. It is our intention to be reasonable.

Some Deputies have expressed fears for smallscale operations usually carried out for domestic purposes – we have already exchanged our individual stories about cutting turf when we were young – but that type of operation will not be affected, nor will the smallscale commercial operations described by Deputy Naughten which generate a commercial return to supplement income. It is the intention of most Deputies to ensure that those people remain unaffected. However, I must do it this way rather than maintain the current system. Otherwise, we will be back before the European Court of Justice. With regard to the EIA, I am examining the requirement to reduce the threshold of 50 hectares. This will address the concerns of the European Court in a transparent manner. When that is done there should be no further difficulty.

Another point arose with regard to Dúchas. The guidelines put forward by Dúchas with regard to turf cutting relate to special areas of conservation, particularly sensitive landscapes and ecology. They are not relevant in a general sense. The special areas of conservation must be protected, we have no choice in that. It is right that we should protect them and all Members would support that sentiment.

We are in this situation because turf cutting is currently exempt development. There is a European Court ruling in that regard and we must respond to it. This is the best way of doing so, notwithstanding the views expressed by Members, and the regulations will take full account of the Deputies' concerns. The smallscale operations will be preserved.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I am not convinced that we must [50] do it this way. The European Court said that the system currently in place is not adequate and we must pay proper attention to what the court says, particularly since we appear to be one of the worst member states where the application of environmental legislation is concerned. Ireland is probably subject to more infringement proceedings than any other member state. That is nothing to be proud of.

The court said the system currently in place is not satisfactory under the legislation. However, the court did not and cannot say what would be acceptable. That is not the court's business. My fear and the fear of the people most directly concerned with this matter is that if the procedure followed by the Minister is put into operation, it will affect people who are cutting turf on contiguous areas of bog. Somebody might say: “We cannot just look at a series of separate independent operations but at the effect of all the activity on the area, whether that be 50 hectares or more”. Since they will not have the protection of being exempted development, they will be caught in that net. That is the fear and it is a reasonable fear.

The Minister referred to special areas of conservation. Where there are particularly sensitive bog environments that is the way to deal with them. I do not pretend that it will be easy. It will be extremely contentious in some cases but that bullet must be bitten. Undoubtedly, there will be contention about many of them but that is the means by which we should preserve and protect certain areas.

The real danger is that people who are traditional operators will not be looked on as individual operators but as a group by the European Court. That will put them back to square one.

Mr. Belton: Information on Louis J. Belton  Zoom on Louis J. Belton  I support Deputy Dukes. The danger is that the entire bog rather than individual turbary rights would be taken into account. In the past much bog was taken over by Bord na Móna which, in turn, gave turbary rights to individuals. These people had given up their bog and obtained turbary rights in other areas. The State, through the semi-State body, was involved in this issue, which is another aspect of its responsibility. The Minister should be wary in this regard because I do not think too many European judges warm their shins by turf fires, given that not very many countries, apart from Ireland, cut turf.

Mr. Naughten: Information on Denis Naughten  Zoom on Denis Naughten  I am not satisfied this problem will be solved by way of regulation because the interpretation of regulations when implemented is fundamental. Deputy Dukes made the point that the consolidation of a number of small plots may remove the area from being an exempted development. This is the nub of the issue in relation to the European courts. The issue of the consolidation of plots under 50 hectares which, when added together, were not exempted was taken up with the European courts.

The Minister said that the European courts are [51] telling us we cannot exempt bogs on an acreage basis. How does he intend to exempt smallscale production under the regulations and can he give us some idea of the type of smallscale production which will be exempted? Interpretation will be the crucial issue and the Minister may not be in charge when the regulations are drafted and implemented. He will not have to interpret the regulations, the enactment of which is the nub of the issue. In umpteen regulations which have been laid down in the past, the interpretation has varied from local authority to local authority and from Department to Department. I ask the Minister to consider the situation, exempt an acre or half a hectare and allow smallscale production to continue. The Minister should use the EIS to deal with large-scale producers of turf who are causing trouble but he should not crucify small producers whose livelihoods will be in serious trouble if these regulations are introduced.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  Ireland is in the top quartile of member states for transposing EU legislation. The EIA directive is the only one in relation to which this country was brought to court even though there are a number of complaints in relation to procedures. Our record is not as bad as stated but I acknowledge there have been a number of complaints and I do not know how many of these will go to court. I would say to [52] Deputy Belton that there is a slight possibility one of the judges in the court may have warmed his shins before a turf fire because he came from Scotland.

Mr. Belton: Information on Louis J. Belton  Zoom on Louis J. Belton  We have a friend in court.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I do not wish to make a decision on the floor of the House on how large an area we will exempt. However, I assure Deputy Naughten that the people to whom he referred will fall below any guidelines put forward and will be adequately exempted under the regulations. Before we discuss the specifics of the issue, I do not wish to put a size on it. I think we are dealing with the issue in the best way possible. People are entitled to their point of view that it could be dealt with differently but I assure Deputies that their concerns will be met. In the unlikely event that I or one of my colleagues will not be Minister for the Environment and Local Government, one of the Deputy's colleagues will be in that position and will be able to deal with the issue.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I remain unconvinced because I do not believe the Minister is obliged, even under the terms of the European court decision, to go as far as he is going or to take the steps he is taking. Therefore, I urge him to accept the amendment.

Amendment put.

Barnes, Monica.
Barrett, Seán.
Bell, Michael.
Belton, Louis.
Boylan, Andrew.
Bruton, John.
Bruton, Richard.
Burke, Liam.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul.
Cosgrave, Michael.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Farrelly, John.
Finucane, Michael.
Gilmore, Eamon.
Hayes, Brian.
Higgins, Jim.
Hogan, Philip.
Howlin, Brendan.
McCormack, Pádraic.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Olivia.
Naughten, Denis.
Neville, Dan.
Ó Caoláin, Caoimhghín.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Perry, John.
Rabbitte, Pat.
Ryan, Seán.
Sargent, Trevor.
Sheehan, Patrick.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Yates, Ivan.

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Ardagh, Seán.
Aylward, Liam.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Byrne, Hugh.
Callely, Ivor.
Carey, Pat. [53]

Collins, Michael.
Cooper-Flynn, Beverley.
Cullen, Martin.
de Valera, Síle.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Fox, Mildred.
Gildea, Thomas.
Hanafin, Mary.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Tom.
Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
[54] McGennis, Marian.
McGuinness, John.
Martin, Micheál.
Moffatt, Thomas.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
O'Donoghue, John.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Malley, Desmond.
O'Rourke, Mary.
Power, Seán.
Reynolds, Albert.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Wade, Eddie.
Wallace, Mary.
Walsh, Joe.
Woods, Michael.
Wright, G. V.

Amendment declared lost.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 5:

In page 18, to delete lines 28 to 31 and substitute the following:

“‘alteration' includes—

(a) plastering or painting or the removal of plaster or stucco, or

(b) the replacement of a door, window or roof, that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures;”.

On Committee Stage I agreed to consider whether the definition of “alteration” should be expanded to ensure the replacement of windows, doors and roofs by other types of material would be expressly covered by the Bill. I have therefore brought forward this revised definition which is intended to ensure that where a window, for example, is replaced and it makes the appearance of the house incongruous in comparison with neighbouring houses this is defined as an alteration and will not be exempted development under section 4.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I commend the Minister for interpreting our discussion on Committee Stage. I will support the amendment.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I thank the Minister for introducing the amendment. I tabled a number of amendments on Committee Stage dealing with this issue and I am pleased the Minister has responded positively by introducing his own amendment.

Amendment agreed to.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  We now proceed to amendment No. 6. Amendments Nos. 11, 57, 262 and 326 are related. Is it agreed that amendments Nos. 6, 11, 57, 262 and 326 be discussed together? Agreed.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 6:

In page 18, line 32, after “Board” to insert “including by electronic means”.

These amendments are concerned with the use of the Internet and electronic means of communication in the planning process. When the Planning Bill, 1963, was introduced the assumption was that business would be transacted on paper. We are living in a new age when business can be transacted electronically. The process initiated under the 1963 Act whereby every planning application is placed in a paper file and has to be inspected in a planning office can be speeded up greatly by the submission of planning applications electronically and placing them on the council's website where they can be inspected by members of the public who should be in a position to make their comments and observations by e-mail. Similarly, the development plan process which involves extensive public consultation can also be enhanced by the use of electronic means of communication.

The amendments seek to make express provision for the use of electronic means of communication in the making of planning applications and in the public consultation process on [55] development plans. I am pleased to note the Minister has introduced his own amendment. I look forward to hearing his comments.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  On Committee Stage I tabled a series of amendments which involved a rather laborious procedure. I hope I am right in thinking that the Minister's amendment, No. 326, is the result of our discussion. It seems to meet my concerns and I commend it to the House. It has one element which is worth bearing in mind in this age of electronic means of communication. I attended a meeting of a different body earlier today at which a particular agency was urged not only to place certain information on its website but to include a number of individuals in the list of those who automatically receive by e-mail a copy of all the information placed on its website. I was appalled by this. Like most Members, if I could find a way of placing a filter on my e-mail I would do so. The trouble is that one has to define the source and e-mails come from all directions.

It is probably politically incorrect and rather unfashionable to say this but e-mail is in serious danger of becoming the bane of our lives because we are inundated in a sea of these messages from every person who has a smart idea which we have probably heard 735 times before and because it is accessible. I find it appalling that every day I receive e-mails which contain an A4 size page of destinations in Leinster House. I used to laugh but now I give a tired sigh when following the list of a couple of hundred names I come to the part which reads that their contents are confidential and private to the addressees who include everybody who counts and many who do not, including myself, because they relate to matters about which I have no intention of doing anything. This promiscuity of communication will become more and more of a problem. If I have read it correctly the Minister's amendment at least contains a provision which states that in certain cases there may be a requirement to give information in electronic form but that the consent of the person receiving the document will be required. This is an important insertion for the sake of the sanity of various people in different parts of the public administration and even of parts of the private sector.

If amendment No. 326 is the outcome of the discussion on Committee Stage, I am happy with it. I would ask the Minister to indicate the measures, if any, he is taking to encourage the local authorities to put themselves in a position to be able to act in the way which is set out in amendment No. 326.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I am happy to confirm that the amendment I table here is the direct result of the various amendments which both Deputies tabled on Committee Stage. It is designed to meet the requirements outlined clearly by the Deputies [56] and other Members to ensure that we are as e-friendly as possible.

In tabling that amendment, I was conscious of two things. First, my colleague, the Minister for Enterprise, Trade and Employment, Deputy Harney, is providing for a comprehensive system of e-government in the Electronic Commerce Bill, 2000, which is currently before the House, and anything which I would provide for in this Bill should parallel what is in that Bill, particularly as it deals with difficult issues like the security of signatures, etc.

Second, under the aegis of the Local Government Computer Services Board innovative trials of technology are currently taking place in local authorities to examine how the new technology can be used and how it might revolutionise every aspect of the planning system, and not merely the publication of the materials themselves. The trials, as I indicated recently, are in their preliminary stages. It will obviously be some time before the technology can be extended to all of the planning authorities, but that is the intention. Kildare County Council is one of the local authorities to the forefront in developing the systems for the computer services board and for other local authorities.

Even then, the paper and electronic systems must co-exist for many years for the sake of the people who are users of the system generally but who may not be familiar with laptop computers, PCs, the Internet, intranets, etc. We are some distance away from the day when paper applications will not be submitted to the planning authority.

I agree with the Deputies that the current provisions in the Bill on technology use are too limited and need to be expanded, and that is the reason for the amendment. We had a long discussion on this on Committee Stage. That is why I tabled my amendment No. 326, to replace section 238.

That new section provides that any written documents or other information can be provided or kept in electronic format from the date of commencement of the Bill without further need for regulations to be made permitting it. One critical proviso, which is reflected in the Electronic Commerce Bill, 2000, is that both sides must consent to the information concerned, whatever it may be, being in an electronic form. If the person getting information in an electronic format cannot open it or use it or if the person does not have the technology to be able to avail of it, there is little point in changing information to an electronic format.

The technology requirements of the local authority or the board must be complied with and I do not propose to make them accept planning applications in any format. They must make known the requirements. That is necessary and practical for the introduction of e-planning and reflects the provisions in the Electronic Commerce Bill, 2000.

We have gone as far as possible at this stage of the development of the introduction of electronic [57] format. I acknowledge the amendments proposed on Committee Stage by both Deputies Dukes and Gilmore. My amendment deals adequately with those and I ask the Deputies to accept that amendment and withdraw their amendments.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I am happy to withdraw my amendments in favour of the Minister's amendment.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 7 is in the name of the Minister. Amendments Nos. 8, 12 and 35 are related. Therefore, amendments Nos. 7, 8, 12 and 35 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 7:

In page 18, to delete lines 33 to 38 and substitute the following:

“‘architectural conservation area' shall be construed in accordance with section 80(1);”.

These four amendments are consequential amendments to the introduction of Chapter II of Part IV on architectural conservation areas and special planning control. Amendments Nos. 7 and 8 provide that these areas are defined as they are in the relevant sections of the Bill, namely sections 80 and 84.

Amendment No. 12 provides that a person who is served with a notice under section 87, that is, one requiring works to be done to land or a use to be changed or ended, will be party to any appeal of the notice.

Amendment No. 35 to section 7 provides that details of declarations and notices served in an area of special planning control shall be included in the register. That was a particular requirement which Deputy Gilmore raised on Committee Stage.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I thank the Minister for responding to the amendments we proposed on Committee Stage.

Amendment agreed to.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 8:

In page 18, between lines 38 and 39, to insert the following:

“‘area of special planning control' shall be construed in accordance with section 84(8);”.

Amendment agreed to.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 9:

In page 19, to delete lines 23 to 32 and substitute the following:

“‘European site' means–

(a) a site–

(i) notified for the purposes of Regulation 4 of the European Com[58] munities (Natural Habitats) Regulations, 1997 (S.I. No. 94 of 1997), subject to any amendments made to it by virtue of Regulation 5 of those regulations, or

(ii) transmitted to the Commission in accordance with Regulation 5(4) of the said regulations, or

(iii) added by virtue of Regulation 6 of the said regulations to the list transmitted to the Commission in accordance with Regulation 5(4) of the said Regulations,

but only until the adoption in respect of the site of a decision by the Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive,

(b) a site adopted by the Commission as a site of Community importance for the purposes of Article 4(2) of the Habitats Directive in accordance with the procedure laid down in Article 21 of that Directive,

(c) a special area of conservation within the meaning of the European Communities (Natural Habitats) Regulations, 1997,

(d) an area classified pursuant to paragraph (1) or (2) of Article 4 of the Birds Directive;”.

Arising from discussion at various Stages, I propose this amendment to the definition of a European site in order to ensure comprehensive protection to SACs and proposed SACs. The definition in the Bill, as published, is copied from the European Communities (Natural Habitats) Regulations, 1997, and it includes a special area of conservation, a site of community importance which is placed on the list referred to in Article 4 of the Habitats Directive – this is the list of Irish sites which has been sent to Brussels – as well as areas designated under the Birds Directive. The Department of Arts, Heritage, Gaeltacht and the Islands was concerned that this definition did not cover sites which were proposed to be designated but had not yet been formally sent to the European Commission. Following consultation between the two Departments, agreement has been reached on amending the definition as now proposed.

The main effect of the amendment is to ensure that protection is extended to proposed European sites once local authorities and landowners are notified of the proposal. I understand that a similar amendment will be proposed to the Wildlife (Amendment) Bill, 1999, which is currently before the House.

This was the subject of considerable debate and amendments on Committee Stage and I am pleased to be in a position to table this amendment to meet the points made by the Deputies.

[59]Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Am I correct in thinking that in this amendment the provisions under subparagraph (a)(i) are what protect a site when the first proposal is made regarding that site and apply the protection pro tempore until a final decision is made; and that the purpose of the last part of subparagraph (a) is to make sure once that decision is made that the protection continues?

Does the scope of this amendment include, as I think it does, a provision enabling any future modifications of policy to be applied here? Is that the meaning of that last part of subparagraph (a)?

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  The Deputy asked if this is pro tempore until everything is finalised and if it will allow changes in policies to be reflected. The answer to both questions is “yes”.

Amendment agreed to.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendments Nos. 10 and 82 are related and both may be taken together by agreement.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 10:

In page 20, between lines 37 and 38, to insert the following:

“‘material contravention' is where an application if granted would be in breach of a specific policy, or a specific objective and a specific zoning in a development plan, local area plan, an area of special amenity or a landscape conservation area;”.

During the course of the Committee Stage debate we discussed the question of who decides whether a planning application is a material contravention of a development plan. The Minister confirmed to me that, as the legislation stands at present, that decision is an executive one made by the county manager. My argument is that the development plan is made by and is a reserved function of the elected members of a local authority. Therefore, they should have the same right as the county manager to decide by resolution at a county council meeting whether an application constitutes a material contravention of a development plan.

I have recently encountered a number of cases where planning applications have been submitted, where the county manager has taken the view that the applications do not materially contravene the development plan and proceeds to make a decision on them, and where members of the local authority concerned who made the development plan in the first place have contended that the applications contravene the development plan and that, therefore, the procedure for material contravention should be initiated so that public consultation would take place on it and, ultimately, a decision made by members of the local authority whether it is at variance with the development plan.

I make this point because, as the Minister is aware, the courts have found that development [60] plans are contracts between the public and the local authority in the area of planning matters. It appears that those who make the development plan – the elected members of the local authority – should at least have the same call as the county manager as to whether an application is in contravention of the development plan. At present, once members of a local authority make the development plan, its subsequent interpretation, especially whether applications conform to it, are matters for the manager.

Amendment No. 82 seeks to give the same right to local authority members to decide by resolution if they consider an application materially contravenes a development plan. Amendment No. 10 is the definition amendment which relates to amendment No. 82.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I support Deputy Gilmore's amendments. It is an issue we discussed on Committee Stage and I was not entirely convinced then that Deputy Gilmore was on the right track. On reflection and having consulted a number of my colleagues in local authorities, the problem he has mentioned, where there is a disagreement between local authority members and the manager as to what constitutes a material contravention in a certain case, is not uncommon. A provision of this nature would allow for a more effective means of intervention for local authority members than is currently available. I support the amendment.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  As the Deputies acknowledged, we had a long discussion on this on Committee Stage and Deputy Gilmore has resubmitted his amendment to define “material contravention” for the purposes of this Bill. He has also brought forward the amendment to provide that the decision on what is a material contravention can be taken by the manager or decided by a resolution of the elected members.

I still believe strongly that we should not attempt to define “material contravention”. The concept is well understood by all parties at this stage. To define and extend it as the Deputy seeks to do in the amendment would cause problems for planning authorities when they decide on planning applications, even when they are acting to provide infrastructure. One of the major dangers is that they would be liable to exclude items from the definition and cause more problems than are resolved.

I acknowledge that there have been disputes on material contraventions, as Deputies Gilmore and Dukes have stated. There have been and probably will continue to be occasional conflicts between the managers and the elected members on what is a material contravention. The amendment would merely create uncertainty. It states that either the manager or the councillors decide what is a material contravention. If there is a disagreement, who prevails?

A material contravention usually arises where a specific planning application is before the local [61] authority and where a section 4 direction is given to the manager. If he or she believes it is a material contravention, he or she then puts that procedure in place rather than accept the section 4 direction. The provisions have worked reasonably well notwithstanding that there have been and no doubt will be occasional conflicts. For that reason and because the system we have at present is tried and relatively trusted by all sides, I ask the Deputy to withdraw the amendments.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I do not propose to withdraw the amendments. As the Minister said, conflict arises from time to time between local authority members and their county manager as to whether an application is a material contravention. The problem is that, when such conflict arises, the decision rests with the county manager. That is undemocratic and the decision should rest with the elected members, especially since it is they who make the development plan in the first place. I regret that the Minister is not disposed to accepting these amendments so I ask that they be put to the House.

Amendment put and declared lost.

Amendment No. 11 not moved.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 12:

In page 21, line 30, after “46” to insert , “87”.

Amendment agreed to.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendments Nos. 13 and 112 are related and may be discussed together by agreement.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 13:

In page 21, between lines 41 and 42, to insert the following:

“(k) any prescribed body in relation to any appeal in an area zoned for amenity purposes or affecting any listed structure or architectural conservation areas,”.

During the Committee Stage debate the Minister acknowledged that there was merit in the argument I made and he undertook to table an amendment to deal with this point, which is amendment No. 112.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  As the Deputy said, we had a discussion on this. I asked him to withdraw his amendment on Committee Stage and indicated that I would try to bring forward an amendment that would suit and meet the point he made. That is the purpose of amendment No. 112 in that it meets his needs. I ask him to withdraw amendment No. 13.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 15 is an alternative to amendment No. 14 and [62] amendment No. 21 is related. Amendments Nos. 14, 15 and 21 will be taken together by agreement.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I move amendment No. 14:

In page 23, to delete lines 19 to 22 and substitute the following:

“‘statutory undertaker' means a person, for the time being, authorised by or under any enactment or instrument under an enactment to—

(a) construct or operate a railway, canal, inland navigation, dock, harbour or airport,

(b) provide, or carry out works for the provision of, gas, electricity or telecommunications services, or

(c) provide services connected with, or carry out works for the purposes of the carrying on of the activities of, any public undertaking;”.

My amended definition of “statutory undertaker” makes it clear that it includes those bodies which are, for the time being, authorised to carry out works. With deregulation, companies in areas such as telecommunications and gas will come and go and it was felt it might be useful to reflect that in the definition. This amendment is in response to an amendment Deputy Dukes tabled, amendment No. 21 to section 4, and I believe it meets this point. This amendment also provides that operators of airports can be considered statutory undertakers for their own works where they are authorised under statute.

I cannot accept Deputy Gilmore's amendment which would confine the definition of “statutory undertaker” to public bodies because, in an area of open competition, this would discriminate between companies competing for the same market and it would be unacceptable. As in a previous case about which we talked, we could even end up with Ireland being dragged before the European Court of Justice under competition laws, rules and so on. For that reason, I cannot accept the Deputy's amendment.

My amendment meets some of the substantial points made by Deputy Dukes and others on Committee Stage.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I thank the Minister for this amendment which clarifies matters. It also has the virtue of including the words I proposed to include. I support the amendment.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I am not sure the amendment goes the distance proposed in my amendment and which I sought on Committee Stage. The problem is that when the original legislation was drawn up in 1963 and what are called “statutory undertakers” were permitted to carry out works without having to apply for planning permission, the number of statutory undertakers were, in the first place, very few and were all State owned, with [63] one exception, the Gas Company. Basically, it was the ESB, P&T, as it then was, and the local authority doing water and sewerage works.

In the era of deregulation, there is a multitude of such companies. We have a number of telephone companies and various television cabling companies. We will have a number of electricity companies and we have gas. We currently have one water authority but that may also change in the course of time. We know what is happening. There is not a day when the road is not dug up by one or other of those companies, and very often in sequence. This causes damage to the road infrastructure, which has been put down at considerable public cost, and it causes disruption to traffic and inconvenience to users of roads and so on. There is a need for this area to be more strongly regulated.

I accept the Minister's amendment confines this activity to those who are authorised for the time being, but that still leaves quite a number of undertakers who will be authorised to carry out this work. The Minister indicated on Committee Stage – a route I strongly recommend and support – that separate legislation might be introduced to regulate this area. I urge him to speed up the introduction of that legislation because the process of deregulation is now under way. It is at this point that these companies are probably at their most active and many are trying to compete with each other and supply services to customers and so on. This is the point at which this will be needed.

While recognising, I suppose, the realpolitick– it is the Minister's amendment which will be included in this Bill – I ask him to confirm to the House his intention to introduce legislation to regulate the activities of these bodies and to introduce that legislation sooner rather than later.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I confirm to Deputy Gilmore what I said on Committee Stage, that I strongly believe it will be necessary to have separate legislation to achieve what he is trying to achieve here. We will move ahead with that as quickly as possible. The Planning and Development Bill is not the place to deal comprehensively with the issue of road openings. I confirm that since Committee Stage, my Department has been in contact with the Dublin Transportation Office, the DTO, to assess, in consultation with the local authorities in the DTO area, the extent to which the approach taken to the opening and reinstatement of roads and paths for the installation of telecommunications infrastructure can be better managed. However, that is very much an interim thing and I confirm to Deputy Gilmore that it is my belief separate legislation is the route we will take.

I take the point the Deputy made about the importance of that being sooner rather than later. I cannot, however, give him any absolute assurances or guarantees as to the timescale because [64] this has arisen only since our discussion on Committee Stage, but we will try to expedite it.

Amendment agreed to.

Amendment No. 15 not moved.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 16:

In page 23, after line 42, to insert the following:

“‘sustainable development' means development that meets the needs of the present without compromising the ability of future generations to meet their own needs;”.

Amendment put and declared lost.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 17:

In page 25, line 1, after “construction,” to insert “site preparation,”.

This amendment seeks to introduce the concept of site preparation in the Bill. There is a debate about when development commences.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  The Deputy is beginning to sound like the APCC.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  Yes, I am beginning to sound like the all-party committee. When does development commence? I have seen cases where a JCB rolls on to a site and somebody blows the whistle saying the developer has not yet got planning permission, it is still with An Bord Pleanála, he is on site and that he has started development. The developer maintains he is only clearing some of the rough growth at the edge of the site. That is a myth because everyone knows it is a signal of intent. The purpose of the amendment is to make it clear that work of that kind is considered development and should be defined as such.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  As the Deputy rightly says, he raised this issue on Committee Stage. I investigated whether site investigation could be defined to prevent people using a perceived gap in the planning code. While I accept there were some incidents in the past where people attempted to abuse the section, from the information I have gleaned from local authorities it has not been a major problem and questions were rarely raised with the board regarding people straying from preparing the site to commencing development. If a developer begins to lay foundations he can be stopped. It is extremely difficult to define site preparation and it could lead to preventing reasonable activities such as clearing derelict sites. That might delay legal development. The Deputy argued in the past that site preparation is sometimes perceived by local people objecting to a planning application as a form of bullying, intimidation and giving the two fingers signal. However, I do not believe local authorities would be swayed one way or the other by such works. [65] Because of that and the difficulty with definition, I ask the Deputy to withdraw the amendment.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 18. Amendment No. 19 is related and No. 20 is an alternative. The amendments may be discussed together by agreement.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 18:

In page 26, to delete lines 16 and 17.

These amendments deal with exempted development. Amendment No. 18 would delete section 4(b) which exempts development by a local authority within its functional area. Amendment No. 20 would delete paragraph (f) which exempts development that is carried out in the functional area of a local authority on behalf of or in partnership with the local authority pursuant to a contract with the local authority.

On Committee Stage my main concern was with paragraph (f) which opens up the possibility that work being carried out in partnership with or on behalf of a local authority would be exempted development. In a way, paragraph (b) is the standard type of work in which a local authority engages – building a housing scheme, community facilities and so on. It gets approval for such work under Part X of the planning regulations which is being repeated in the Bill under another section.

Paragraph (f) opens up a range of areas under the public private partnership which will be exempt development for the purposes of the planning Acts, in other words they do not have to apply for planning permission. One could have a major development carried out by a private company under a contract or in partnership with a local authority and it does not need to apply for planning permission. That is not what was originally meant to be exempted development under the planning legislation. There is some logic in exempting from the normal planning application process development carried out by a local authority and having a separate procedure for that. Whether the Part X procedure is adequate is another debate. I accept there is logic in the argument that it is nonsensical for a local authority to apply to itself for planning permission. However, the same argument cannot apply to the kind of developments that are likely to arise under public private partnerships which will now be exempt development under paragraph (f). The Minister has tabled an amendment dealing with that paragraph but I do not see how it differs substantially from the existing draft. He should explain how amendment No. 19 alters, in essence, what is proposed in paragraph (f).

This is an issue on which I have strong views and is one on which we must make a decision unless the Minister can satisfy me that his amendment is sufficient to meet the argument I made on Committee Stage.

[66]

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  On the substance of what Deputy Gilmore has said, I have nothing further to add to what I said on Committee Stage, which was not a lot. Section 4(b) will require to be amended if the local government Bill, which we have not yet discussed, comes before the House. Where we now talk about development by the council of a county in its functional area exclusive of any borough or urban district we would have to say “exclusive of any town council”.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  Absolutely.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  That is daft, absolute nonsense. Where we now say “borough or urban district”, because there is a distinction between them, we would say “town council” in the knowledge that it means different things in different places. If the Minister reflects on the lucidity of the language and the text, it conveys exactly what he wants it to convey.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  How archaic it is.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  If he includes the new nomenclature he is proposing in the local government Bill it will state: “development by the council of a county in its functional area exclusive of any town council district—

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  That is much clearer.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  It is not because it means different things in different places. The Minister proposes town councils for places that are known in common parlance as cities, such as Kilkenny, and boroughs such as Clonmel, Wexford and Sligo. He will call them all town councils.

Debate adjourned.


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