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

Wednesday, 14 June 2000

Dáil Eireann Debate
Vol. 521 No. 2

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An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  We move on to amendment No. 111 in the names of Deputies Gilmore, Dukes and Ó Caoláin which arises out of Committee proceedings. Amendment No. 322 is related, so we will take amendments Nos. 111 and 322 together by agreement. Agreed.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 111:

In page 50, line 44, to delete “on payment of the prescribed fee and”.

This amendment concerns the Minister's proposal to introduce a fee. It requires people making submissions or observations to a planning authority about a planning application to pay a fee. He indicated previously that this fee will be made by way of regulation and it is generally accepted that it will be a fee of £20 or thereabouts.

I regard this proposed fee as fundamentally undemocratic. The planning system is there for the public, it is a public system. The whole basis of our planning system is to enable the public to have access to that system and to enable it to make its point of view known. For example, the reason we require planning applicants to put a notice on a site and place an advertisement in newspapers stating that they intend to make an application, that planning decisions are not decided immediately and that there is a period of two months within which members of the public can make their observations known, inspect the planning file and make submissions to it is precisely to give the public an opportunity to have its say on planning applications. If somebody, for example, has an objection to a particular planning application, he or she has a democratic right under our planning system to make his or her point of view known, to state it to the local authority and to have it taken into account when a decision is being made.

What the Minister proposes to do here is to require people to pay £20 each time they write to their county council or local corporation about a planning application. If a citizen has a concern about a planning application and wants to lodge an objection to it, he or she must accompany that [388] objection with a cheque for £20. Each time a residents' association wants to make its point of view about a planning application known – some residents' associations will do this in regard to several applications which are of concern to their community – it will have to submit a cheque for £20 for each application. That is undemocratic. It is standing the rights we now have to participate publicly and openly in the planning process on their head and it should not be included in this Bill.

This measure is strongly opposed by residents' associations, citizens and even the professionals in the planning system. The Irish Planning Institute, for example, has come out very strongly against this proposal. It is one which should not be included in the Bill. The amendment I propose, along with Deputy Dukes and Deputy Ó Caoláin, is to excise that provision from the Bill and restore the position we have now, that is, that a citizen can express his or her point of view without having to accompany it with a cheque when writing to the county council.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I concur with everything Deputy Gilmore said. The position in regard to what the Minister proposes to do is even worse than has been outlined by Deputy Gilmore because there is another provision in this Bill which provides that unless a person who wishes to make a comment, an observation or an objection does so at the planning application stage and pays the fee, that person will not have the right, in the event of the planning authority making a decision that he or she does not like, to appeal the decision of the planning authority to An Bord Pleanála. There is a double interference in the democratic right of the citizen to make a comment on developments which will affect him or her in any way as a result of the activities of other people.

The Minister said people are getting something in return for this proposed charge. They will be slapped with a limitation in regard to their right to appeal to An Bord Pleanála if the Minister has his way, which I hope he does not. However, the Minister claims they are getting something valuable in return for this charge in that the Bill provides that comments, observations or objections made by individual citizens or any of the groups mentioned by Deputy Gilmore will, under the provisions of this Bill, have to be taken into consideration by the planning authority whereas he told us today the planning authority does not necessarily have to have any regard to them. That provision or that step forward is welcome but it is not one which requires a provision for a charge to accompany it.

The planning system is there to regulate planning and development and, although the Minister will not have it in the Title of the Bill, to promote the idea of sustainable development in so far as it impinges on physical planning, which it does to a very marked degree. It is there to provide a public good, a service to the community, to respond to the development needs of the com[389] munity and to ensure they are met, as far as we can do that, in a sustainable way. It is part of the public service, the basic infrastructure of the State and of society, which we are entitled to have provided for us and for which we pay through our general tax system.

Proposing, as the Minister does, that there be a charge for defending our individual rights in relation to planning matters is tantamount to proposing that there should be a charge any time we call on a member of the Garda Síochána for assistance or on any other public agency to carry out its statutory duty on our behalf. I do not believe that is right. There are a number of services to which the public is entitled as of right. One is law and order and the protection of that. Another is the protection of the environment, especially in the operation of the planning laws.

There is no such thing as a free lunch or a cost free service. The State, local authorities and planning authorities incur costs in carrying out their activities. There are some costs which it is fair to reflect directly on the community but there are others which it is not. I commend the Minister on providing that observations or objections made by individuals to planning applications should be statutorily taken notice of by local authorities but I reject the idea that there should be a charge for making such observations or objections. I also reject the notion that those who do not make an objection or a comment at the planning application stage lose their right to appeal against the decision of a planning authority, for all the reasons we spoke of on Committee Stage and I know the Minister understands them as well as anyone on this side of the House or the multitude of objectors to this provision.

A planning application that may appear to be unobjectionable at the time it is made can result in a planning decision being made by the planning authority that has conditions attached to it that make it objectionable in some way to those who are affected or who have an interest in whatever way we define that. It is wrong, unjust and out of keeping with the intention of our planning law that someone who finds the original application unobjectionable but subsequently finds the planning decision objectionable should lose his right to appeal simply because he did not make an observation on or object to the original application. That is unfair. It is doubly unfair that the person should have to pay a fee. It is not required to make the Bill work, fund the planning system or make it fairer.

This provision will make the planning system less accessible and amenable to the public and is to be rejected. I ask the Minister to delete this provision. There is no good reason for it. None of the reasons advanced by him in favour of it has reality in terms of any philosophy of public participation in planning.

Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  I join Deputies Gilmore and Dukes in commending this amendment to the Minister. The arguments that have been so [390] cogently laid down by both of them merit little repetition but I will refer to just a few.

It is critically important that we recognise that the imposition of a prescribed fee is patently unjust and, even more importantly, unnecessary. I have taken the views of both county and town planners and not only within my own constituency. While everyone does not sing from the one hymn sheet unquestionably the overwhelming number of those with whom I have spoken regard the imposition of a prescribed fee as a further administrative burden on planning staff who are already over stretched in coping with all the elements of the process to which they must attend. This fee will not aid a better planning service or ensure earlier decision-making but will add to the nightmare that is the day to day reality for planners and their staffs in authorities throughout this jurisdiction. The fee of £20 will not pay for itself in terms of the negative impact it will have in the operation of planning sections.

As regards paragraph (c), enabling persons to make submissions or observations on payment of the prescribed fee, unquestionably people have made submissions and observations that have assisted and informed the planning decision-making process over many years. Planners fully acknowledge the input of the wider public, people with a special knowledge of the given circumstances, those with local knowledge and pertinent information, that has informed and guided planners in making correct decisions on various applications through the years. Now we are looking at imposing a penalty in terms of a monetary fee to be exacted from them for doing what is a public service, which is often the case. That is unacceptable.

The presence of this element in the Bill also indicates that it is the intention of the Minister, if this is followed through, that the opportunity to offer submissions, observations or objections is to become the preserve of those who are not struggling to meet domestic and family needs. That may be scoffed at and dismissed by asking what can £20 seriously do to the weekly budget of Irish families today? That may be the view of the Minister for Finance but as a Deputy representing a Border constituency it might very well be an important element in any of the given situations to which I am privy.

I appeal to the Minister, on the collective argument that has been presented, to withdraw this element from the Bill. It is damaging and at variance with the purpose and intent of making the process an open and accessible opportunity for all members of society and all groups. There is no guarantee we are talking in terms of £20. There is no ceiling on that. Where is the guarantee that it will not be increased in the future? There is not any. People will be dissuaded because of the requirement of this fee and the further downside of that is, perhaps following on a decision by a local authority they will find themselves further inconvenienced or discommoded as a result of conditions that may apply and, as Deputy Dukes [391] said, will be excluded from participating at further stages of the planning hearing appeal stage and An Bord Pleanála stage. That is another deficiency that needs to be addressed.

I urge the Minister to accept the deletion of the reference to the payment of the prescribed fee and I hope he will afford us a positive reply.

Mr. D'Arcy: Information on Michael D'Arcy  Zoom on Michael D'Arcy  I was unable to secure time to speak on Second Stage and that is why I wish to make observations on certain sections.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  There is a time limit on this Bill until 5 p.m. Deputy Higgins wishes to contribute and the Minister would like to hear his reply. I ask the Deputy to confine himself to the amendment.

Mr. D'Arcy: Information on Michael D'Arcy  Zoom on Michael D'Arcy  I will confine myself to this section. This is a serious situation and I agree with the comments made by previous speakers. This Bill will be on the Statute Book for a long time and the Minister will accept it has taken at least two years to bring it before the Dáil.

Public participation is vital to the planning process. However, the Minister is introducing a provision which will restrict people's democratic rights. This is not just a question of the fee but that people will be precluded from objecting to An Bord Pleanála if they do not make observations when the application is made to the council. That is a serious situation.

I have much experience of planning over many years and it is important to ensure the public has its say. I do not understand why the Minister is providing that people cannot appeal to An Bord Pleanála if they do not make observations in the first instance. This is a serious proposal which does not make sense.

The £20 fee is also a serious issue. A substantial fee is already involved if people go to An Bord Pleanála and it is becoming very expensive for people who have a democratic right to object to a planning permission if they feel it interferes with their family or building. I object to these two provisions and I hope the Minister will withdraw this section in respect to the £20 fee and, particularly, the making of observations.

The Minister will accept that councils grant many planning permissions but, in many cases, people may not see notices placed in newspapers or on sites. Some newspaper notices appear in Irish which people may not understand and it is only when planning permission is granted that the application is brought to the attention of those concerned. If people do not make observations at the planning stage the Minister is excluding them from appealing to An Bord Pleanála. This is a serious proposal which must be withdrawn.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): I support these amendments. The Minister and the Government are taking a regressive approach. This Bill was published on the basis it was making planning [392] more accessible but charging a fee for the right to make submissions is going in the opposite direction. This proposal will be a serious barrier to ordinary people, residents' associations and groups making an input into the planning process. The fee of £20 has been mentioned, and it is a significant enough sum, but there is nothing to prevent that figure being increased. The tendency has been for local authorities to go higher than £20 for all kinds of charges and fees.

This proposal raises a question of natural justice. By its nature, a planning application impinges and imposes on the community in which the development is to be sited and can affect the community in many ways, including its quality of life and its physical make-up. Groups who wish to make submissions and observations on how a planning application will affect them, and who are acting in the best interests of communities, did not ask for the application to be made. The application is being imposed on them by a third party whose interests can sometimes be in conflict with those of the community. In such circumstances it is totally unjust to require residents' associations or individuals affected by an application to pay a fee to ensure proper planning for their areas and for responding to something over which they had no control.

I remind the Minister that it can be quite costly for residents' associations or individuals to make submissions and observations. Depending on the proposed development, an application may be complex and individuals and residents' groups often have to hire planners and engineers to make a comprehensive and professional observation and analysis of a project. This can be costly in terms of money, time and effort. In many cases people are already stretching themselves as regards observations and submissions.

In the case of a significant development, perhaps of a commercial nature, those who propose the development generally have no restrictions on the amount of money they can spend. The Flood tribunal has shown how people in pursuit of large scale developments have thrown money like confetti at politicians and others to secure favourable decisions. However, individual residents and residents' associations have no such funds available to protect their communities and their environment.

There is a tendency for certain elements in society favourable to developers and such like to try to railroad proposals through the planning process and to ride roughshod over the rights of community organisations, residents' associations and individuals who make submissions and, particularly, objections. For the most part this tendency is unspoken but it will grow. On at least one recent occasion, even the Taoiseach made derogatory remarks about people who have objections to significant infrastructural developments such as the port tunnel. Communities see this proposal as affecting their quality of life and their environment. Whether one agrees or disagrees with their arguments is not important, [393] but one must agree they have an absolute right to make those arguments.

The Government claims the national development plan will involve infrastructural developments costing £40 billion over five to seven years. Community associations and residents' and environmental groups perform a crucial function but there is a tendency to see them as an inconvenience to developers who wish to roll in the concrete at any cost.

On a broader scale, such thinking has reduced the magnificent resource of the Amazon to dire and dangerous proportions due to the destruction caused to it. The whistle is being blown too late in this regard and, as a public representative, I am not prepared to stand by and see any such tendency being allowed to take over and dictate policy. However, I am afraid this provision, and some of those in later sections which restrict the right to appeal to An Bord Pleanála and to seek a judicial review, are going in that direction.

Minister for the Environment and Local Government (Mr. Dempsey): Information on Noel Dempsey  Zoom on Noel Dempsey  We had a long debate on this issue on Second and Committee Stages in this House and in the Seanad. The arguments expressed this afternoon have been made on a number of occasions. I am sure the Deputies opposite will forgive me if I refer to the replies I gave them previously. This section is probably the one that has been debated most on earlier Stages. If this aspect of the Bill were taken in isolation, I could accept that the observations and accusations levelled at the Government by the Deputies are justified, but this aspect cannot be taken in isolation.

The intent of the overall effort put into the Bill is to make the planning system more accessible and open and to encourage people, as far as possible, to participate fully in the planning process at the appropriate time. I have said on a number of occasions in the past that people tend to wait until planning permission has been granted, or until there is word of it being granted, for a development before they bother to check what is happening in their locality. Many people become aware of a planning application in their locality when they see the required notice displayed on the site and then they become exercised about it, which is only right, as it may affect them. Very few people bother to check draft development plans at which stage zonings and various decisions of a general nature are taken on planning, which will affect people in their local areas. It is at that stage people should commence participation in the planning process and not, as many do, allow local authorities to draw up development plans that provide for the zoning of an area for residential purposes and seek to change that provision only when the notice for the planning application is displayed on the site.

The Bill is designed in a balanced way to direct people to use the planning and development laws more productively, to realise their rights and to exercise them at an earlier stage. That would prevent some of the confrontation in the planning process. The Bill gets the balance right in that regard

[394] With regard to the specific amendments before us and the provision in the Bill to impose a fee on people who want to make representations, observations or objections to a planning application, if I were proposing to slap a prescribed fee on such people, I probably could agree with some of the points made by the Deputies, but I am not doing that. I am not merely proposing to impose a fee on such people to increase the revenue accruing to local authorities, although some financial contribution should be made towards the cost of the services they provide. For the first time ever, I am providing in law for statutory recognition to be given to submissions or observations on specific planning applications made by members of the public to local authorities. We can talk all evening about whether people have that right, whether they should be charged for it or whether it is a right, given that most of the planning systems throughout Europe do not allow, as a right, third party observations.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  It is no harm for us to be ahead of the posse.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  We have led the way on this and, as Deputy Dukes said, there is no harm in us continuing to lead the way. We will do that, but we will go one step further by giving statutory recognition to such observations and objections submitted by members of the public to local authorities. At present local authorities do not need to take account of observations or objections submitted by members of the public but, to their credit, most of them do. I accept the argument put forward that in many cases such observations have been helpful to local authorities when they come to make decisions or in pointing out matters of which members of local authorities were not aware. I accept those are beneficial aspects of third party submissions to local authorities and I would not want to discourage them.

We are conferring an important new right in this Bill, a person's statutory right to have his or her objection or submission considered by the local authority. For exercising that right, we want to charge a small fee, which I indicated will not exceed £20. It is not my intention that the level of such a fee will be such as to discourage people from making such observations, rather it is a question of the fee being paid and statutory recognition being given to that right. We will deal with the other part of the equation when we come to deal with the next group of amendments. One then has a right to make an appeal to An Bord Pleanála, if one so desires.

Deputy Dukes's amendment proposes that a fee should be paid only in certain circumstances, where the person making the submission or observation has a commercial or economic interest in an application or whose commercial or economic interest may be affected by it. We could not discriminate in that manner. For example, such a provision could mean a next door neighbour would have to pay a fee for making a sub[395] mission regarding a development that he or she considers would affect the value of his or her property, while a person living down the other end of the country, who would not be affected in any way by such a development, would not have to pay the fee. Such a provision would be found to be discriminatory and, therefore, I could not accept that amendment.

This section confers a statutory right that a person's objection or observations will be recognised by a local authority. Given that the fee is very small, I do not think it will dissuade anybody who so wishes from making observations or objections.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I reject the Minister's argument. This fee is being introduced to discourage people from participating in the planning process. The fee will raise a relatively small amount of money for planning authorities. As Deputy Ó Caoláin said, it will be an administrative headache for planning departments. It is included in the Bill because the [396] Government wants to discourage citizens from participating in the planning process by writing individual letters to county councils when they want to object to a planning application. It is unfair in that it will discriminate most against those who cannot afford to pay the fee.

I know elderly people who will not go to the doctor because they do not have the £20 fee. They are precisely the people who will be discouraged. They may have strong and legitimate objections to a planning application in their locality but if they cannot afford to pay a fee of £20 they will not lodge the objection. That is undemocratic, unfair and unjust and I want to put the amendment to the House.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  As it is now 5 p.m. I am obliged to put the following question in accordance with an Order of the Dáil of this day, “That the proceedings on Report Stage in respect of amendments Nos. 111 and 322 are hereby completed and negatived.”

Question put.

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Andrews, David.
Ardagh, Seán.
Aylward, Liam.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
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.
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'Malley, Desmond.
O'Rourke, Mary.
Power, Seán.
Reynolds, Albert.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Wade, Eddie.
Wallace, Dan.
Wallace, Mary.
Woods, Michael.
Wright, G. V.

Barnes, Monica.
Barrett, Seán.
Belton, Louis.
Boylan, Andrew.
Browne, John (Carlow-Kilkenny).
Bruton, John.
Bruton, Richard.
Burke, Liam.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul. Cosgrave, Michael.[397]

Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Finucane, Michael.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Gormley, John.
Gregory, Tony.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McDowell, Derek.
McGahon, Brendan.
McGinley, Dinny.
[398] McGrath, Paul.
McManus, Liz.
Mitchell, Olivia.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
Ó Caoláin, Caoimhghín.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Penrose, William.
Perry, John.
Quinn, Ruairí.
Rabbitte, Pat.
Reynolds, Gerard.
Ryan, Seán.
Sargent, Trevor.
Shatter, Alan.
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Wall, Jack.
Yates, Ivan.

Question declared carried.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Deputy Gilmore to move amendment No. 135. Amendment No. 136 is an alternative to amendment No. 135 and both may be taken together by agreement.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 135:

In page 60, to delete lines 23 to 30 and substitute the following:

“(a) An applicant for permission and any other person may, at any time before the expiration of the appropriate period, appeal to the Board against a decision of a planning authority under section 34.”.

This amendment concerns the right to appeal to An Bord Pleanála. The Government has just won a vote on the proposal to require people to pay a fee to make an observation or objection to a planning authority on a planning application. We are now dealing with section 37, where the Minister is proposing to restrict the right to appeal to An Bord Pleanála to the applicant or anybody who made an objection or observation to the local authority, in other words, anybody who paid the fee and made an objection or appeal to An Bord Pleanála. That is the second fundamental change the Minister is proposing to make to the current planning system, restricting the right to appeal to An Bord Pleanála.

There is a variety of reasons somebody who did not initially make an objection to the planning authority should have the right to appeal to An Bord Pleanála. This is a further restriction that the Minister is imposing on the rights of the public. Up to now, any third party could lodge an appeal with An Bord Pleanála against a decision of a planning authority, which the board could then deal with. That was a fundamental public service right.

There is provision in existing planning legislation and this Bill for An Bord Pleanála to immediately dismiss vexatious or frivolous appeals. Therefore, there is no argument that this is being included to weed out vexatious or frivolous objections or appeals because they are already capable of being weeded out by the provisions in the Bill. An Bord Pleanála can simply dismiss a vexatious or frivolous appeal. We are talking here about genuine appeals. The Minister and the Government are proposing in this legislation to restrict the right to appeal to An Bord Pleanála against a planning decision to those people who paid the fee in the first place and made an initial observation to the local authority.

When we discussed the previous section, I spoke about elderly people who may have to go to the doctor the week a planning objection has to be made to the local authority. They may have to choose between paying the doctor's £20 fee or writing to the local authority. If they decide to visit the doctor, under this section, they will be prevented from appealing to An Bord Pleanála if the planning authority gives a decision they are not in favour of, no matter how strongly they feel about the decision.

This is a further denial and restriction of public democratic rights which is being insisted on by the Government. There are many good things in this Bill but the Government and the Minister are also making a number of very serious and damaging changes in it. The Bill is riddled with restrictions on the public's right to have its say in the planning process. This is one of the provisions restricting the right to go to An Bord Pleanála.

[399] My amendment proposes to remove that restriction from the Bill and it would allow, as is the case at present, any third party to make an appeal to An Bord Pleanála. I ask the Minister to accept my amendment. We had a long discussion on this issue on Committee Stage. The Minister should accept these amendments in the interest of democratic rights for our people.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Amendment No. 136, which is in my name and that of Deputy Gilmore, is an alternative to amendment No. 135, in the names of Deputies Gilmore and Ó Caoláin. I am indifferent between the two, as long as one is accepted.

Deputy Gilmore rightly said that the purpose of the amendments is to remove from the Bill one of the fundamental changes it proposes to the planning law. Until now, as the Minister has repeated on a number of occasions during the debate on the Bill, we have had the most accessible appeals system in Europe. We have the widest right of any member state of the European Union for the citizen to appeal against planning decisions. That is good, is one of the few areas where our planning law has something to recommend it over the laws of other countries and is worth keeping.

I suspect the restriction on the right of appeal to those who are either appellants themselves or have made observations or objections at the planning application stage is included in the Bill to meet the claim made by a number of interests to the effect that third party appeals are gumming up the works of our planning system. I reject that notion because that is not what is causing delays in our planning system.

I have heard colleagues on both sides of the House becoming rather ill humoured at various times about the fact that appeals against planning permissions in their area are being made by people “at the other end of the country”, which is how it is always phrased. However, those appeals are being made by people who are expressing a legitimate, public interest. It is usually not a commercial or economic interest but is an interest in the proper planning and sustainable development of our environment. They are expressing a legitimate interest and view in the context of our planning process. There is no justification for limiting the expression of that view.

As Deputy Gilmore said, there is already provision in law to reject frivolous appeals. Appeals which turn out not to be frivolous should, by definition, be considered. There is no good reason to introduce a provision in law that restricts the expression of those legitimate interests, which is what this provision in the Bill does, apart from the consideration, to which we referred before, that conditions may be put on a planning permission which originally seem innocuous to the persons concerned but which becomes a matter of more pressing interest and, perhaps, something objectionable once those conditions are made. This is not far-fetched as this is [400] not an unusual or unknown situation. However, this provision will prevent somebody who had no objection to the first planning application, but who has found a condition on a grant of planning permission objectionable, from appealing to An Bord Pleanála. That is unjust.

There is no good reason in planning law for doing that. There is only this myth that, in some way, the right of third parties to object is gumming up our planning system. That is the only ground on which I have heard any justification being made for this provision in the Bill. It is a spurious ground. There are far more delays in our planning system because of the inadequate staffing and resourcing of planning authorities than there are because of the multiplicity of third party appeals. That is an observable fact. There is no good reason for having this provision in the Bill. The Minister would be doing us all a favour and something worthwhile in the interests of sustainable development if he accepted either of these amendments and got rid of this pernicious provision.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): I strongly support these amendments. A very important issue is at stake here. The provisions in the Bill to restrict access to An Bord Pleanála militate against what is stated in the explanatory memorandum, that the legislation will facilitate maximum participation in the planning process. This measure is going in the opposite direction.

There are many instances where people would not be aware of a planning application and might only hear about it at a later stage. If the permission is granted and people only then find out that they will be severely affected by it, it is unjust that they will be denied the right to appeal to An Bord Pleanála. I have been a county councillor for nine years and have encountered many genuine cases where individual residents or even residents' groups have only become aware of a matter after a decision has been made by the planning authority. In many areas that will not be the case. Some residents' organisations are extremely well organised and resourced. They tend to have more access to information. That is not always the case in other areas.

Look at the example of the greater Blanchardstown area. It is exploding in terms of development. Residents are moving into new communities by the day and the week. Hundreds of homes are occupied over a period of a few months. At the same time there is a plethora of applications for further development by developers and builders. In an expanding new area such as west Dublin, a decision might already have been made in relation to an adjoining area of land before the new residents have moved in and become aware of it. It is unjust in those circumstances that they do not have the fallback of recourse to An Bord Pleanála. In that instance, even if people are extremely vigilant, they are still new residents in an area – in fact, they are a new community – and they are seriously disadvantaged where a [401] decision has already been made before they become aware of it. The Minister is severely restricting their right to participate in the planning process.

The remarks of the preceding Deputies are correct. The objective is clearly to cut out and discourage appeals from as many people as possible and, in some cases, appeals from environmental organisations and others who have a more general brief in society. That is wrong. These groups bring a special expertise and viewpoint to the planning process which can be overlooked by other agencies closer to the coalface, as it were. They have a right and an obligation to bring forward the wider arguments. There can be situations where there are so many pressures locally, that even though they are not happy with a project people feel pressurised not to object because the project is being railroaded through. In those instances, people who are more removed from physical closeness to the situation have a unique input and one that should not be lost.

If it is being suggested that there is a problem dealing with objections, the solution is not to cut down on democratic rights but to increase the resources of An Bord Pleanála to ensure that all objections and observations, from whatever side, can be dealt with in a shorter period. The route the Minister should take is to put more resources, facilities and money into An Bord Pleanála and the planning process by hiring more staff and expertise so appeals can be dealt with in a shorter time frame. That will give the best possible outcome by ensuring the input of all groups and no undue delays due to lack of staff.

It will be a bad day's work if the Government continues on this course.

Mr. D'Arcy: Information on Michael D'Arcy  Zoom on Michael D'Arcy  I support amendment No. 136. The charge and this provision are linked. I listened carefully to the Minister's comments in respect of the charge. He used the word “isolation” for taking it out of context and said the process would be more accessible if his provision was retained. The same will apply to this provision. I cannot understand why the two provisions have been included.

The third party right will be diminished by placing a charge on submissions objecting to a planning application if only a person who has objected can make an appeal on a decision. This does not allow for that fact that there might be no objections to the development just to the conditions of the development. These cannot be presumed in advance of a decision. That is the position. Who can presume what the conditions will be?

I will deal with the issue of conditions. Take the example of a man who makes an application to build a house. There are families living on both sides of the site. One family is happy with the application but the other is not happy and requests a certain condition to be attached to the planning decision. That request might be granted. The other family, however, is denied the right to [402] appeal against the condition. This point has been made previously but I am not sure that the Minister has taken it into consideration. Dozens of similar examples can be given.

The Minister is denying people their democratic right to object by including this condition. This is a serious matter. People have constitutional rights and I can envisage some cases ending up in the courts. The Minister is also making the planning process more awkward for administrators in terms of the administration of planning law. I accept that there are good elements in the Bill but I cannot understand why these two conditions have been included.

The democratic right of people to object to a planning application should be retained. Putting restrictions on that right effectively denies them the right. I feel strongly about this issue. It is a fundamental change in planning law. Such a provision did not exist previously. I appeal to the Minister, even at this late stage, to give consideration to what we are saying about it.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  May I remind the Deputy that the question must be put at 5.45 p.m.

Mr. D'Arcy: Information on Michael D'Arcy  Zoom on Michael D'Arcy  I wish to make it clear that this is a fundamental change to our planning laws which is wrong and should be corrected. If the Minister does not correct this provision, it will create planning problems in every county, some of which I fear will end up in the courts.

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  The amendments before us would have the effect of removing the restrictions on persons taking third party appeals who have not participated in the initial decision making process at local authority level. I assure Deputies that an amendment was tabled on Committee Stage to cater for cases such as those referred to by Deputies D'Arcy and Dukes. An amendment was tabled which will permit persons whose interest in the land is affected by a decision of the authority to apply to the board for leave to appeal against the decision. If the board finds the decision is materially different from the application by reason of conditions that might be imposed on it – the case referred to by Deputy D'Arcy is a case in point – and that the person's interest in the property is materially affected, it can grant leave to appeal. That is a reasonable compromise given the situation which pertained initially and meets the concerns of the Deputies.

Other changes were discussed recently where a fee will be imposed. However, in return, the provision whereby one will have a statutory right to make submissions and have them carefully considered is set out for the first time in the planning laws. I remind Members that planning authorities are the final decision making bodies for over 90% of applications. It is critical if people believe they have something to contribute to the planning process that they do so at that level and at that stage. Most decisions are not appealed and it is only fair that the local planning authority, [403] which is responsible for planning and development in its area, has the opportunity to consider any local objections or observations because of its local knowledge. The aim is to try to focus people on the local authority as the primary planning authority with responsibility for planning decisions. It is for this reason I have provided that third parties must make a submission on a planning application in order to exercise a right of appeal to An Bord Pleanála. There are no other restrictions placed on them and I believe that when the Bill is passed we will have the most open planning system in Europe. This provision will not affect that aspect.

It would be wonderful in the Utopian world in which some people here seem to live if we could assume that everyone who makes an appeal to [404] An Bord Pleanála is motivated by the highest environmental and other considerations and if we could turn a blind eye to the fact that a number of people in different parts of the country are using the planning system to extort money from people who are trying to provide facilities, whether housing, commercial developments or otherwise. I am aware of many instances where the planning system is being used to extort money from people.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  As it is now 5.45 p.m. I am obliged to put the following question in accordance with an Order of the Dáil of this day: “That the proceedings on Report Stage in respect of amendments Nos. 135 and 136 are hereby completed and negatived.”

Question put.

The Dáil divided: Tá, 71; Níl, 53.

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Andrews, David.
Ardagh, Seán.
Aylward, Liam.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Briscoe, Ben.
Browne, John (Wexford).
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
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.
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'Rourke, Mary.
Power, Seán.
Reynolds, Albert.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Wade, Eddie.
Wallace, Dan.
Wallace, Mary.
Woods, Michael.
Wright, G. V.

Barnes, Monica.
Belton, Louis.
Boylan, Andrew.
Browne, John (Carlow-Kilkenny).
Bruton, Richard.
Burke, Liam.
Burke, Ulick.
Carey, Donal.
Clune, Deirdre.
Cosgrave, Michael.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
Deasy, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Farrelly, John.
Finucane, Michael.
Flanagan, Charles.
Gilmore, Eamon. Gormley, John.[405]

Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
Mitchell, Olivia.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
O'Shea, Brian.
[406] O'Sullivan, Jan.
Penrose, William.
Perry, John.
Quinn, Ruairí.
Reynolds, Gerard.
Ryan, Seán.
Sargent, Trevor.
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Upton, Mary.
Wall, Jack.
Yates, Ivan.

Question declared carried.

Amendments Nos. 160 and 161 not moved.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 163 and 164 are alternatives to amendment No. 162 while amendment No. 166 is related. Is it agreed that amendments Nos. 162 to 164, inclusive, and amendment No. 166 be discussed together? Agreed.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I move amendment No. 162:

In page 78, lines 39 and 40, to delete “and that the applicant has a substantial interest in the matter”.

Deputy Ó Caoláin who is unable to be present asked me to mention that there is a printing error in amendment No. 160, the last two lines of which should not have appeared.

The issue we are about to address relates to the right to seek a judicial review of a planning decision in the High Court. The Government has put in a very bad afternoon's work on behalf of the people. It has forced through a proposal under which an individual citizen, residents' association or community group will have to make a payment, probably £20, to a planning authority to object to a planning application. An individual citizen will no longer have the right to appeal to An Bord Pleanála a planning decision with which he or she is unhappy unless he or she first objects to the local authority and pays the appropriate fee of £20. If that was not bad enough the Government is now proposing to restrict the circumstances in which a judicial review may be sought in the High Court.

To obtain leave to seek a judicial review of a planning decision the High Court will have to be satisfied on two points. It will have to be satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. I agree with this. The High Court should be satisfied that there are good and sufficient grounds for seeking a review. The courts should not be used willy-nilly for frivolous purposes to delay projects. The High Court will also have to be satisfied that the applicant has a substantial interest in the matter which is the subject of the application. I object to this. What does it mean? Does it mean that he or she should have a financial or property interest before he or she can seek a judicial review?

I propose that this reference be deleted. Deputy Dukes has an alternative amendment which suggests that the word “sufficient” should be substituted for the word “substantial”. I would be happy with that formulation as it would make it clear that an applicant would not have to have a material interest in the matter.

The Minister's amendments reads, “A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest.” This can be read in one of two ways. It either reinforces what I suspect was meant by “substantial interest” in the first instance, a material interest in the land or development, or alternatively it will leave the matter open-ended. If that is the case the relevant words should be deleted. To obtain leave to seek a judicial review in the High Court it should be sufficient to show that there are good grounds for seeking it. The seeking of a review should not be based on the status of the applicant but on the grounds on which it is being made. I have difficulty with, and strongly object to the provision that in addition to the grounds of the application, the status of the applicant relative to the development will also have to be adjudicated on by the court before a judicial review can be obtained. It limits the fundamental right of the citizen under the Constitution and by law to go to court if there are good grounds for so doing. The Bill proposes to limit that right to circumstances which are related to the status of the applicant, relative to the development which is to be the subject of the judicial review. I do not believe that should be the case. The provision should be removed and if the Minister is not satisfied to do that he should accept the alternative amendment in the name of Deputy Dukes. Given that his own amendment is ambiguous and is capable of being interpreted either way – ultimately the courts will interpret it – it should not be included in the Bill.

[407]Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Amendments Nos. 163 and 164 in my name are complementary. The Ceann Comhairle suggested they were alternatives. They are not; they are alternatives to the amendment in the name of Deputy Gilmore and they could reasonably be seen as alternatives to amendment No. 166 in the name of the Minister.

I agree with Deputy Gilmore when he says that judicial review should effectively be the exception rather than the rule in cases like this. That is made clear in current practice and in the Bill. Section 49(1) states: “Where a question of law arises on any appeal or referral, the Board may refer the question to the High Court for decision.”. That gives us the context. Judicial review can be sought where it is claimed that there has been some legal defect in the process by which a decision has been given or a referral has been made. It is important to remember that, because the judicial review has nothing to do with the intrinsic planning concerns of a decision or a referral but with the process. The courts do not have any knowledge of the process of proper planning and development, qua planning and development, but they do have knowledge of the procedure by which these things have to regulated. It is in that context that judicial review should be seen. It is right that we should be restrictive in our approach to this because it is the job of the courts to decide on the law while it is the job of the planning authorities and An Bord Pleanála to decide on questions of planning and proper planning and development.

The question then arises, in what circumstances can an applicant seek to have a judicial review? We have stubbed our toe in the provision of section 49(4)(b), which provides that the applicant must have a “substantial interest in the matter which is the subject of the application.”. We discussed this at length on Committee Stage and without being disobliging to anybody, least of all the Minister, I came away from that discussion without any clear idea in my mind of what would be regarded as a substantial interest. I do not know whether a substantial interest is a property, financial, planning, social or theoretical interest or whatever. I am not happy with the idea of writing things into legislation which we cannot comprehend at the time.

The Minister may say that a similar provision already appears in legislation. It does not alter my opinion, because I still wish to know what it consists of. That is why I propose the deletion of the reference to a “substantial interest” and the provision instead that the applicant should have a “sufficient interest” and that this interest would include an interest not relating solely to property. I am seeking to ensure that a person who has an interest in these matters, which is not the value of his property or the kind of economic activity in which he or she is engaged that may be affected by the proposed development, but whose interest is in the proper planning and development of the area, including the sustainable development, would have the right to seek access [408] to the courts for a decision on the procedures adopted in the case.

I realise that the question put to the court cannot have anything to do with the planning aspects of the issue, but must be concerned with the procedure by which a decision was arrived at or a referral was made. That is why we must distinguish between these two things. I do not make the case that the interest itself or the nature of the interest should be at issue before the court because that is outside the terms of reference of the court. The only issue that can come before the court is the question as to whether the procedures that are laid down in law were properly observed in arriving at whatever point is at issue.

What we are concerned about here is to ensure that persons who have a legitimate locus standi in the issue are not excluded from having such a question adjudicated upon and are not excluded from being the ones who initiate the request for such an adjudication to be made. That is why I have proposed that the applicant should have a sufficient interest and that the interest should not relate solely to property.

It is left to the court to decide whether the applicant has a sufficient interest, just as, if the Minister's amendment was to be enacted, it would be left to the court to decide whether the applicant had a substantial interest. I do not know what the courts would make of that. With every respect to them, I believe that when legislating we should give the courts as much guidance as we can and be as clear as we can about what we mean.

I do not know what a court would make of the idea of a substantial interest, but when we talk about substantial interest and are dealing with real property, which is what we deal with in planning law, the likelihood is that a court would say that a substantial interest in real property amounts to a property, commercial or economic interest. I would not be confident that, with regard to a specific development, a court would necessarily find that, for example, An Taisce had a substantial interest in the meaning of what appears to be the intention in the Bill. However, if an organisation like An Taisce was involved, a court would find that it had a sufficient interest in a planning matter. If we provided that a sufficient interest would include an interest not related solely to money, there would be no doubt but that, for example, An Taisce would have the kind of interest that would give it a locus standi in the case. I believe the court would look the same way at a person who had an interest in planning issues generally and who was making a case with regard to an application for permission for a specific kind of development.

Amendment No. 166 in the name of the Minister makes an effort to come in the direction of the case I have made. The Minister is proposing that a substantial interest is not limited to an interest in land or other financial interest, and it is certainly a much more open formulation than that which is contained in the Bill. It is a substan[409] tial step along the road, but it is still not clear to me the kind of interests the Minister has in mind as being legitimate in this connection. I ask the Minister, who I assume will move amendment No. 166 when we get to it, to explain where might lie the boundaries of a substantial interest not limited to an interest in land or other financial interest in order that we can begin to discern whether we are talking in the same ballpark, if I may be allowed to mix metaphors.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): I strongly support the amendments in the name of Deputy Gilmore which go furthest in trying to redress the appalling precedent which the Minister is setting here. If one of the claims made for the Bill is that it introduces more definite regulations, laws and clarity regarding planning, then this provision, that an application may not be made for judicial review unless the applicant has a substantial interest, goes in the opposite direction. As Deputy Dukes pointed out, that to which substantial interest refers is anything but certain. It is not in anybody's interest that it is left in this vague fashion. I would have a great fear that in the High Court substantial interest could be narrowly defined by members of the Judiciary, some of whom can be quite conservative in their outlook, and that it would be defined in terms of people who might have a material interest in the application or the decision made. That would be going backward in the extreme when the forward direction of planning sought by people who seek sustainable and proper planning is precisely that planning would be released from the constraints of material interest and those with profits or large amounts of money at stake. It is critical that the interests, which can be involved and taken into account, are over and above material or property interests.

There is nothing definite on the question of the environment, the question of air quality, for example, and concern over possible pollution. There is, for example, a major push on the part of the Minister for the Environment and Local Government to adopt incineration in Ireland as a policy for waste management. That is a disastrous policy but that is another day's discussion. Every right thinking public representative would say that of course the communities within 30 or 40 kilometres of a proposed incinerator have a substantial interest in the decision because it can relate to the quality of the air they breath. The same is the case regarding other environmental concerns which could be raised. Will this allow them to take a judicial review should they find one necessary to protect their rights as they see them?

There can be developments which have a severe impact, for example, on flora and fauna. Perhaps the very continuance of a particular species of plant or creature could be involved. Of course environmental groups or groups concerned about the preservation of what millions of years of evolution has bequeathed to us have a substantial [410] interest, even if some of them are based, as was alluded to earlier, at the other end of the country. Why should we be so concerned about what happens in the Amazon basin? We have a substantial interest in what happens there despite the fact that we are thousands of miles removed from it. Therefore, the Minister's proposal is dreadfully regressive.

The Minister made some curious comments on the last tranche of amendments when he was cut short by the constraints of time. He referred to people extorting money or seeking to manipulate the planning process. The Minister used the words “to extort money”. Extortion in my view conjures up serious illegality. If there is serious illegality, nobody more than the Minister should be dealing with that in a legal way. In other words, it should be amenable to the law of the land. Perhaps I am one of the people who he accuses of living in Utopia, but I do not know to what the Minister was referring. If there is extortion, that must be dealt with by other means but should not be used as an excuse to curtail the democratic right of people to access the courts. The Minister should elaborate on that. I do not wish to delay the House, but the Deputies who tabled the amendments raised these crucial points in the long process of Committee Stage and this is my only opportunity to do so. There are certain instances where it may be in order for agencies to provide compensation where they propose developments which would have a dramatic impact on neighbouring residences.

My last point—

Acting Chairman (Mr. McGrath): Information on Paul McGrath  Zoom on Paul McGrath  I hope it is related to the amendment which we are discussing, that is amendment No. 162. The Deputy is wandering a little from it.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): With respect, Acting Chairman, I do not think I am. The amendment has to do with access to, and who would qualify for, a judicial review. We are debating six amendments together here.

Deputy Dukes's amendment regarding “sufficient” interest is an improvement on the wording of the Minister, but there is a lack of certainty about “sufficient” also. The interpretation of the word “sufficient” would be left up to the courts. I would prefer a more open wording.

There is another use of the word “substantial” in the same paragraph on which there has not been much comment. Section 49(3)(b) states that leave for judicial review “. shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid .” That has been overshadowed a little by the debate on “substantial interest”, but it is something at which the Deputies should look. We debated that issue on the Illegal Immigrants (Trafficking) Bill, 1999, but this is a new departure. It means that if an applicant is to show substantial grounds in order to be granted a judicial review, at the stage of [411] application for judicial review the applicant must make his or her substantial case. It will mean that instead of the five minutes which is often taken in the High Court for presenting a general application for granting the right to a judicial review, the applicant's barrister must take up a substantial amount of time showing that he or she has substantial grounds for getting it. That is something on which I invite comment here.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Is a certain lack of certainty similar to a sufficient lack of sufficiency?

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  Regarding the final point made by Deputy Higgins about substantial grounds, that phrase has been a part of planning and development since it was introduced in 1992. “Substantial grounds” has been defined by the High Court as “weighty” and “arguable”. It has also used words such as “reasonable” or “not trivial or tenuous”. Deputies asked during their contributions for definitions. I will not attempt to perform a judicial role in the House because the courts have been more than able to make up their minds about what is meant by and implied in legislation. It is clear what we are talking about here.

As a general comment on some of the examples cited by Members, in a planning case, which is what we are dealing with here – and it is important we focus on the fact that it is with such a case we are dealing – a substantial interest would relate to a planning interest. In other words, it is something connected with planning. If a person is directly affected by a decision, he or she would obviously have a substantial interest and doubtless that would be recognised by the courts. However, if a person were to argue a theoretical point, he could hardly be described as having a substantial interest in something, and the courts would probably make their own decision about that. I have no doubt that some of the organisations mentioned would have a substantial interest or substantial grounds in many cases for seeking appeals for judicial review.

The main focus of the argument during the course of the debate on Committee Stage was that the phraseology in the Bill would be interpreted by the courts as meaning that a person would have to have a monetary or property interest in the proceedings they were taking. That case was strongly argued by a number of people, including Deputy Dukes who tabled an amendment. I indicated that I would re-examine this to clarify it further for the courts. That is why I tabled my amendment. Most of the argument centred around the danger of the court interpreting “substantial interest” as a property or financial interest. Following discussions with the parliamentary draftsman, we brought forward an amendment to clarify this point.

Deputy Gilmore said two interpretations can be taken from the amendment. I cannot see a second interpretation and I do not accept his [412] point. It is clear that, for the purposes of paragraph (b), “substantial interest” is not limited to an interest in land or other financial interest, which is the point made on Committee Stage and with which I have dealt in this amendment. The amendment also meets the point Deputy Dukes made in his amendment. The two are similar. I do not propose to delete the reference to having a substantial interest as proposed in the other amendment tabled by the Deputies. I set out my reasons in great detail on Committee Stage for not accepting that. I understand that Deputy Ó Caoláin's amendment No. 160 has not been moved so I will not address that.

I do not agree with the point about the Judiciary being conservative when it comes to judicial reviews. The courts exist to interpret the law and, in some cases, the Constitution. The Judiciary has been very open to accepting judicial reviews of and challenges to various decisions, especially in the planning area. It has vindicated the rights of citizens on a regular basis. It would be unfair to say that it is conservative in its approach. Its members take seriously their roles as interpreters of the Constitution and defenders of the citizens, and it would be unfair not to put that on the record.

The Deputy referred to another matter which was the last one to which I referred on the previous amendment. I did not manage to finish the comments I made about people using the planning system to extort money, but that is what I meant. It is illegal and it is possible to have a person prosecuted if one can get a person to make a formal complaint. As far as I know, a developer in the south has decided to pursue such a case. The problem faced by developers and most people caught in this bind is that, if they go to court or to the Garda, the person who objected or someone acting on his behalf will object to the next development and the developer cannot afford the delay. That is happening and there is no point burying our heads in the sand. The planning system was also used in a case cited not just by me but by one or two others where a person with a commercial interest funded objections to planning applications through the High Court on a number of occasions purely on the basis that a person was setting up in business in competition to the person funding the action. That type of abuse of the system is not good for anyone and brings the system into disrepute. The Deputy asked me to elaborate on that, I have done so and I thank the Acting Chairman for his indulgence.

The definition of a substantial interest is reasonable, arguable, weighty and not trivial or tenuous. We are debating this in the context of planning law, and a substantial interest would not merely be a property interest. Planning is about more than property. As Deputy Higgins said in the course of his contribution, it includes a range of considerations, such as environmental, community, social, etc. I am satisfied that no one's rights will be infringed and that the rights of the citizen are fully protected in the amendment I [413] tabled to this section in response to the issues raised with me on Committee Stage. I ask the Deputies to accept my amendment in this case.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I would like to deal with the issue the Minister has twice raised, that is, the prospect of certain people either lodging appeals with An Bord Pleanála for the purposes of extorting money or of delaying a development or seeking a judicial review with the same intent. If there is evidence—

Mr. Dempsey: Information on Noel Dempsey  Zoom on Noel Dempsey  I did not mention that in the context of a judicial review but in the context of an appeal to An Bord Pleanála.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  If there is evidence of that having been done, that evidence should be supplied to the Flood tribunal because that is as much a corruption of the planning process as somebody extorting money for the purposes of promoting a development. If there is evidence, for example, of commercial interests financing the objection to a development because it is a competing interest or whatever, similarly, that is a valid topic to be examined by the Flood tribunal because the terms of reference this House gave to that tribunal referred to people seeking to improperly or corruptly influence the planning process. The planning process is as improperly or corruptly influenced if it is being done for the purposes of stopping development as if it is being done for the purposes of promoting development, and that is where issues of that kind should be debated.

I say that also because running through the Minister's rationale for what he is attempting to do in this section, what he has succeeded in doing in relation to the appeals to An Bord Pleanála and in regard to making people pay to lodge objections, is accepted a line which has been promoted by some developers in recent years that the problem with the planning process is that people are objecting. The idea has developed that it is all the fault of the people objecting, that [414] people object to the local authority, appeal to An Bord Pleanála and then seek a judicial review, all of which are irritations and delay matters, that the people to blame for everything are objectors.

That is an unwise course to take. It is unfair to people who have genuine concerns and reasons for objecting to a development, appealing it to An Bord Pleanála or seeking a judicial review to essentially make that more difficult through this legislation because it is perceived that some people do this almost as a profession. Incidentally, if there are people who do this almost as a profession, they should reflect now on the consequences of having done that. We are ending up in a situation where the rights of the ordinary citizen are being restricted in legislation because there is a perception that a degree of “objectionitis” has been operating in the planning system. In any event, it does not justify the Government introducing this kind of restriction on the rights of the citizen.

Our particular difference in relation to this amendment centres on the question of substantial interest and what is substantial interest. What is interest? Is it the kind of interest which would have to be declared to this House, for example, which is generally accepted to be a material interest? A Member of this House does not have to come in here and say that he or she is interested in fine art, if there is a debate—

Acting Chairman:  As it is now 6.45 p.m., I am required to put the following question in accordance with the order of the Dáil of this day.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  So much for my interest in fine art.

Acting Chairman:  The question is, “That proceedings on Report Stage in respect of amendments Nos. 160 to 164, inclusive, and amendment No. 166 are hereby completed, that amendment No. 166 is hereby agreed to and that amendments Nos. 162 to 164, inclusive, are hereby negatived.”

Question put.

Ahern, Bertie.

Ahern, Dermot.

Ahern, Michael.

Ahern, Noel.

Andrews, David.

Ardagh, Seán.

Aylward, Liam.

Blaney, Harry.

Brady, Johnny.

Brady, Martin.

Brennan, Matt.

Brennan, Séamus.

Briscoe, Ben.

Browne, John (Wexford).

Callely, Ivor.

Carey, Pat.

Collins, Michael.

Cooper-Flynn, Beverley.

Coughlan, Mary.

Cowen, Brian.

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.

Haughey, Seán.

Healy-Rae, Jackie.

Jacob, Joe.

Keaveney, Cecilia.

Kelleher, Billy.

Kenneally, Brendan.

Kirk, Séamus.

Kitt, Michael.

Lenihan, Brian.

Lenihan, Conor.

McCreevy, Charlie.

McDaid, James.

McGennis, Marian.

McGuinness, John.

Moffatt, Thomas.

Molloy, Robert.

Moloney, John.

Moynihan, Donal.

Moynihan, Michael.

Ó Cuív, Éamon.

O'Dea, Willie.

[416] O'Donoghue, John.

O'Flynn, Noel.

O'Hanlon, Rory.

O'Keeffe, Batt.

O'Malley, Desmond.

O'Rourke, Mary.

Power, Seán.

Roche, Dick.

Ryan, Eoin.

Smith, Brendan.

Smith, Michael.

Wade, Eddie.

Wallace, Dan.

Wallace, Mary.

Woods, Michael.

Wright, G. V.

Barnes, Monica.

Bell, Michael.

Belton, Louis.

Boylan, Andrew.

Broughan, Thomas.

Browne, John (Carlow-Kilkenny).

Bruton, Richard.

Burke, Liam.

Burke, Ulick.

Carey, Donal.

Clune, Deirdre.

Cosgrave, Michael.

Crawford, Seymour.

Creed, Michael.

Currie, Austin.

D'Arcy, Michael.

Deasy, Austin.

Deenihan, Jimmy.

Dukes, Alan.

Durkan, Bernard.

Enright, Thomas.

Farrelly, John.

Finucane, Michael.

Flanagan, Charles.

Gilmore, Éamon.

Gormley, John.

Hayes, Brian.

Higgins, Jim.

Higgins, Joe.

Higgins, Michael.

Hogan, Philip.

Howlin, Brendan.

Kenny, Enda.

McDowell, Derek.

McGahon, Brendan.

McGinley, Dinny.

McGrath, Paul.

Mitchell, Olivia.

Moynihan-Cronin, Breeda.

Naughten, Denis.

Neville, Dan.

Noonan, Michael.

O'Shea, Brian.

O'Sullivan, Jan.

Penrose, William.

Perry, John.

Quinn, Ruairí.

Rabbitte, Pat.

Reynolds, Gerard.

Ryan, Seán.

Sargent, Trevor.

Sheehan, Patrick.

Shortall, Róisín.

Stagg, Emmet.

Stanton, David.

Timmins, Billy.

Upton, Mary.

Wall, Jack.

Yates, Ivan.

Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Sheehan and Stagg.

Question declared carried.

Debate adjourned.


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