Thursday, 2 October 2008
Dáil Eireann Debate
Deputy Mary Upton: Presentation Convent, Terenure, was sold to a developer in 2006 for approximately €15 million. Later that year it was proposed that the building should be considered by Dublin City Council as a protected structure. The process had commenced when the building was demolished without planning permission on Saturday, 4 November, starting at 7 a.m. Dublin City Council twice requested re-instatement of the building to its satisfaction. The building was not restored and Dublin City Council decided to prosecute the developer in the District Court. The case was heard last Thursday. The maximum fine allowable in the court under the Planning and Development Act 2000 is €1,900. The judge did have discretion to seek re-instatement of the building. The penalty imposed by the court was €1,000.
The scheme of the Planning and Development Act gives planning authorities the power to prosecute offences in either the District Court or the Circuit Court. The difference between both legal arenas is clear. The District Court is for minor offences and the prosecuted party faces a relatively light penalty. The Circuit Court is for more serious offences and the Act provides for much stiffer penalties. I am sure the Minister will agree that the offence in this case — destroying a landmark building in contravention of planning law — was a serious one that should have been prosecuted in the Circuit Court.
The situation called for Dublin City Council to avail of the section 160 planning injunction. The destruction of the Presentation Convent in Terenure had all the elements necessary for the planning authority to obtain an injunction. It had the element of a serious breach of planning law, namely, the destruction of a valuable building. It also had the element of a determined effort on the part of the developer to defy the law — the surreptitious Saturday morning demolition. The planning authority ought to have responded by seeking a planning injunction.
It is understating the response to this penalty to say the decision has given rise to much anger. Many people in Terenure and beyond have been in touch with me. They looked on this building as a landmark-type building. Many of the past pupils of the convent school were aggrieved at the demolition of the building. Many of them have also been in touch with me and the Minister will probably have seen the letters to the newspapers expressing their outrage at the penalty imposed.
In my initial response to the court decision, I called for a change in the law to allow more accessible recourse to a higher court and heavier penalties where a developer is in breach of a planning condition. The developer has now applied for planning permission to build houses on the site. Section 35 of the Planning and Development Act 2000 gives a planning authority the power not to grant permission where the applicant has been in significant breach of a planning permissionin any planning authority area. Use of the power requires the planning authority to apply to the High Court. The Planning and Development (Strategic Infrastructure) Act 2006 made it easier for local authorities to exercise that power by removing the requirement for them to go first to the High Court. This provision could be widened to allow local authorities to refuse planning permission where a developer has been convicted or received an injunction for any breach of planning legislation, not just planning permission.
Local authorities are reluctant to prosecute in the Circuit Court or to avail of the planning injunction open to them under section 160 of the Planning and Development Act. The 2007 report of the Local Government Services Management Board assesses the performance of local authorities, including their responses to planning breaches. The prosecutions can be subdivided into prosecutions in District Courts and Circuit Courts, and injunctions. As service indicators, this might serve to improve performance. Dublin City Council is now in a position to seek a planning injunction so that the building can be restored on Terenure Road West. This remedy — in the civil courts — remains open despite the criminal prosecution.
I call on the Minister to issue guidelines to local authorities on the need to seek enforcement proceedings in the Circuit Court and to use section 160 planning injunctions in serious cases. The District Court must only be used for less serious matters. I intend to pursue the issue with Dublin City Council on behalf of my constituents. It seems to defy common sense that the same penalties can apply to an individual for exceeding the permitted floor area by 5 sq. m or 6 sq. m in an extension in a private house, for example, as applies to a developer who has illegally demolished a building worth millions and that might have been placed on the list of protected structures.
The message from the penalty imposed last week on this breach of the planning law will be very comforting to any developer who chooses to breach the planning law. That is not the way our planning regulations should be applied where local communities, our history and heritage are involved.
Under planning legislation, any development which requires permission and does not have that permission is an unauthorised development, as is a development which is proceeding in breach of conditions laid down in the planning permission. Enforcement of planning control is the responsibility of the planning authority.
Planning enforcement provisions were greatly strengthened in the Planning and Development Act 2000. The Act imposes several statutory obligations on planning authorities. The authority must issue a warning letter in respect of any genuine complaint it receives regarding unauthorised development or any unauthorised development of which it otherwise becomes aware. The authority must then carry out an investigation into the alleged unauthorised development. Following this investigation, the authority must make a decision, as expeditiously as possible, on whether to issue an enforcement notice. My Department’s development management guidelines, published last year under section 28 of the Planning and Development Act 2000, recommend that enforcement notices should issue in all cases where an investigation has established that unauthorised development is being or has been carried out, unless there are compelling and defensible reasons for not doing so.
Following its decision on whether or not to issue an enforcement notice, the planning authority must inform any complainant regarding the decision and must enter the decision, including the reasons for it, in the planning register. My Department’s development management guidelines urge that prosecutions should follow in the case of all enforcement notices not complied with. The maximum fines for unauthorised development were greatly increased in the 2000 Act, with the maximum penalty on conviction on indictment now €12.7 million and two years’ imprisonment. In the case of a summary conviction, the maximum penalty is a fine not exceeding €1,905, imprisonment for a term not exceeding six months or both.
In regard to the case to which the Deputy referred, I am informed by the planning authority that a warning letter was issued, an investigation carried out, an enforcement notice subsequently issued and a prosecution taken in the District Court against the company in question. The latter subsequently pleaded guilty to an offence and the court imposed a fine of €1,000. It is a matter for the planning authority to decide whether to bring proceedings in the District Court or High Court in any particular case and I have no role in the matter.
Enforcement powers were further strengthened in the Planning and Development (Strategic Infrastructure) Act 2006 which allows planning authorities to refuse to grant planning permission, without recourse to the High Court, to any developer who has substantially failed to comply with a previous planning permission. If the applicant wishes to have this decision overturned, he or she must apply to the High Court.
The above provisions set out a strong legal framework for planning authorities to take enforcement action where necessary. While there are no specific proposals for review, the Minister continues to keep the legislation under scrutiny with a view to its operational effectiveness.
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