Tuesday, 19 December 1972
Seanad Eireann Debate
Parliamentary Secretary to the Minister for Local Government (Mr. Cunningham): The Housing Act, 1969, is a temporary measure which will expire on 31st December, 1972, unless continued by an order made by me after it has been approved by resolution by each House of the Oireachtas. The object of the draft order is to continue the Act in force for two years ending on 31st December, 1974.
In a developing economy, investment in industrial and commercial building is essential to provide the resources for further development including the construction of houses. It is inevitable that some houses have to be demolished or put to other use to make way for other forms of development. However, housing policy considerations demand that the demolition or change of use should be controlled by the housing authority. The Housing Act, 1969, provides this control.
The Act became law in July, 1969, and the number of applications for permission received by all local authorities from then to 31st March, 1971, was 312. Of these 66 were granted without conditions, 195 were granted with conditions and 51 were refused. The number of applications for permission made to Dublin Corporation up to 31st March last was 367. Of these 255 were granted and 112 were refused.
Where permission is refused, or granted subject to conditions, there is a right of appeal to the Minister against the decision of the local authority. Up to end of last month 137 appeals were received. Of these eight were invalid because they were not received within the statutory period, 19 were withdrawn, 54 were determined  and 56 were under consideration.
The operations under the Act indicate that it has provided local authorities with a control that is both flexible and effective in reducing the loss of habitable houses to the housing stock. Apart from these operations it is clear that the very fact that such statutory control exists helps to reduce the loss of habitable houses.
While satisfactory progress has been made in achieving, ahead of schedule, the house-building targets set by the Government, I consider that it is still essential to retain for a further period the controls provided by the 1969 Act.
Mr. Boland: This draft order provides for the continuance of a worthwhile Act introduced on a temporary basis in 1969. As the Parliamentary Secretary said, the intent of the Act is that houses may not be demolished to provide for redevelopment, save with the approval of the housing authority, who are, in effect, the local authority, if there is one, operating in that particular area at the time.
Obviously, development will often be impaired or prevented if the removal of certain housing cannot be effected. Nonetheless, it is important that the houses removed should be replaced by adequate accommodation of a similar or better standard. One of the main considerations when the Housing Act, 1969, was first introduced was that occupied habitable houses removed to make way for commercial development should be replaced with similar accommodation.
Certain points occurred to me when reading this measure. They were probably argued during the debate on the Act at the time. While I appreciate the need, on occasion, for the removal of housing to provide for redevelopment, care should be taken by the housing authority to ensure that new houses will be provided in an area contiguous to the former one. It is not fair for a developer to remove houses from a certain area to make way for redevelopment and replace them with houses in an area  20 or 30 miles away, which might well happen to be within the same local authority administrative area and consequently the same housing authority administrative area.
My attention was drawn also to section 2 (3) of the 1969 Housing Act which specifies the fines which shall be payable by anyone who contravenes the obligation to obtain permission to demolish housing for the purposes mentioned. The fines are on summary conviction a sum not exceeding £100 together with, in the case of a continuing offence, a further fine not exceeding £10 for every day on which the offence is continued, or at the discretion of the court, to imprisonment for a term not exceeding six months. This may be somewhat hypothetical, but it would appear to me that in a small number of cases at least, certainly in areas of major urban population or urban redevelopment, it might very well be a profitable exercise on the part of a developer, who fell foul of the housing authority and was unable to obtain permission to demolish housing so as to allow commercial development to go ahead, or who felt sure that he was bound to fall foul of the housing authority and consequently did not even bother to apply, to demolish habitable housing and replace it with massive commercial development and be prepared to pay the fine of £100. Indeed, if the full rigour of the law was imposed upon him, and he was liable to a continuing fine of £10 a day, he might well feel that the £10 per day fine was money well spent when compared with the amount of rent he might derive from the replacement commercial property.
The only real deterrent to such an unscrupulous individual would be the suggestion of six months imprisonment which can be enjoined with the initial and continuing fine. I feel that the continuing fine, while it may be realistic with regard to the replacement of one habitable dwelling by a relatively modest replacement building, is not a realistic fine if viewed in the light of replacing not so good or rather old dwellings by a fairly lavish and high-priced commercial development with a leasing income of many  pounds per square foot. I suggest to the Parliamentary Secretary that in any subsequent review of this particular piece of legislation he might well consider the idea of revising the continuing penalty, not so as to make it a financial burden on somebody who genuinely transgressed the terms of the Act mistakenly, but to make it instead a preventive measure which would inhibit the more unscrupulous redeveloper from carrying on regardless and being quite happy to pay what would be to him a nominal recurring fine.
In reading the Act, I also notice that it differs from its local government counterpart, the 1963 Planning Act, in regard to the manner in which planning appeals have to be determined. As most Senators and, indeed, the general public know, in applying for planning permission one is obliged to publicise the fact in one or other of the national newspapers or to erect a notice, which is supposedly visible, though we all know it very often is not on the site. The idea of this was that the general public, who might be affected by the general terms of any planning application, would have an opportunity of lodging their views with the appropriate planning authority. Not so in this Housing Act because, while there is a right of appeal to the Minister in the event of the housing authority refusing the idea of a habitable dwelling being demolished, there is no obligation in the first instance or, indeed, in relation to the appeal on the applicant to publicise the fact that he is making either the application or the appeal and, as far as I can determine, there is no right on the part of a third party who feels aggrieved at a, to him, unfavourable decision on the part of the housing authority. The third party has no right to appeal to the Minister against that decision to demolish.
I freely admit that the occasion on which those sorts of appeals or objections might be made by third parties would be rather minimal in relation to this particular aspect of local government law and, as we would all agree, they would almost certainly take place in the greater Dublin area.  Without going into specific cases, most of us here know of several instances in the greater Dublin area in the last year or two where members of the general public and members of interested groups and societies have felt aggrieved because of the intention and, indeed, often the actions arising out of the intention of a redeveloper to demolish property they felt had historic, or architectural, or aesthetic merit. As far as I can ascertain, this Housing Act does not allow those interested bodies or members of the general public the right to appeal to the Minister against the housing authority's decision to grant permission, if such permission has been granted.
The Parliamentary Secretary can answer this very quickly by standing up and saying: “I know the cases the Senator is talking about. The housing authority never granted permission in the first place so that is the answer to that.” It is not because the housing authority might just as easily, in ignorance or innocence, have granted permission and then we would be left in the position where the only person who could appeal against that permission would be the very person who wanted to knock down the dwelling in the first place. It is hardly likely that he will do that.
However, the nub of the 1969 Housing Act, and this is the reason why I asked last week that it should be left over until today for discussion, is that in its appeal terms it holds certain comparisons with the 1963 Planning Act. The main comparison is where a housing authority, which is the counterpart of a planning authority, both of which are, in effect, the local authority in the area, decides that aggrieved persons may appeal to the Minister against that decision; it is our contention, as it has been since 1963—it has been repeated at various times since and again in the debate on this Act in 1969—that it is wrong that the dreadful onus and responsibility of deciding on planning appeals or Housing Act appeals should be left to any one man.
The Parliamentary Secretary can answer that criticism very easily by saying that there is a Bill on the stocks to amend the Planning Act, to remove  the power of appeal from the Minister and to appoint an independent inquiry board or tribunal to look into appeals. But it is not that easy to answer because that Bill has been there for the last three or four years. We will all believe it, accept it and work it when that Bill becomes an Act. It has not become an Act in 1972 and it is not going to become one. It languished on the Order Paper during 1970 and whether it will become an Act in 1973 will depend largely on electoral results.
There is no Bill on the stocks to remove from the Housing Act, 1969, the same power which now lies with the Minister, that is, the power to determine the Housing Act appeals which may be brought to him. Those appeals materially differ in that they may be brought only by the aggrieved original applicant and not by a third party. If third parties wish to enjoin themselves in an appeal, they must first approach their local authority and persuade them to act on their behalf in any appeal which may be heard. That would be quite a difficult operation for any aggrieved party who happened to live in an administrative area where a democratically elected local authority did not at that time exist. I would suggest to the Parliamentary Secretary that he should, in his reply to this motion, be prepared to say that at the same time as the appeal's method in relation to the 1963 Planning Act, is being amended—if he wants to give us a bonus he may tell us when he expects that to happen—there should be introduced a similar piece of legislation or procedure to remove from the Minister the same power personally to determine appeals under this Act. If he does that all of us, who are in favour of the Act in principle as it stands, would feel happier with the Act in operation.
I have one final point. The figures given by the Parliamentary Secretary are remarkably similar to the figures given by the Minister in another place. From them it is quite apparent that virtually all of the housing demolition applications were made to the local authority in the Dublin city area. The Parliamentary Secretary gave the figures in relation to appeals received  by the Minister in a particular period and a breakdown of the numbers which were invalid, withdrawn, determined or under consideration. The Parliamentary Secretary ought to be in a position to tell us, especially in view of my previous remarks in relation to the personal determining of appeals by a Minister, how many of the 54 determined appeals of the 137 received in that period were determined in favour of the applicant and how many were refused.
Again, it would be very simple for the Parliamentary Secretary to tell us that he has not got those figures. I hope he has them because the same question was asked in relation to the same figure in another place and, unfortunately—probably because it was sprung upon him at short notice —the Minister was unable to give the breakdown. Because of the passage of time, and because we debate such matters here in such a cool and quiet fashion, I hope the Parliamentary Secretary will now be able to give us the breakdown and a better statistical analysis of how the whole procedure operates.
I would also be grateful if he could give us a percentage figure of the number of applications made to Dublin Corporation as against the 26 or 27 other local authorities. While accepting that a great number of housing redevelopments take place in Dublin city, there seems to be an imbalance in the proportion of applications being made to Dublin Corporation in relation to the rest of the country. I wonder if there is a blind eye being turned, not deliberately of course, to housing demolition in rural areas as against the city. I do not accept those figures as being completely accurate even accepting the great amount of redevelopment that takes place in Dublin city. In my area of Dublin County the figure, taken in conjunction with the other rural local authorities, ought to have produced a slightly different picture from the figures the Parliamentary Secretary gave us.
Finally, any Senators who read last Sunday's newspapers may very well have read of the considerable annoyance and difficulties being caused to  the staff and patients of a Dublin city centre hospital because of redevelopment and reconstruction works taking place on a site adjoining the hospital. The point was made by the newspaper, with quite an amount of justification, that it was wrong that redevelopment should be allowed to take place indiscriminately beside a hospital where seriously and critically ill patients are being treated without any controls being imposed to ensure that the amount of noise or interference to the patients is kept to a minimum. It is particularly appropriate that the article should have appeared in last Sunday's newspaper, a few days before this debate, especially as the site in question is a site that was sold by a State Department to a private developer. One might have thought that, even at that initial stage of contract there might have been some restrictive clauses. Certainly, when the application for demolition was made to the local authority, that is, Dublin Corporation, there should have been some restrictive clauses to provide for the quiet continuance of the operation of the nearby hospital. In relation to that, section 11 of this Act reads:
Section 66 of the Act of 1966 is hereby amended by the insertion of “including conditions requiring the taking of such reasonable steps as will ensure that the works, either while being carried out or when completed, will neither cause injury to any adjoining or adjacent building nor interfere with the stability thereof after conditions in subsection (7)...
That referred to a quite substantial section of the 1966 Act in relation to conditions which can be imposed. I do not know if the Parliamentary Secretary has taken particular notice of this case, but because it has been brought to national notice, perhaps I may be giving him the opportunity of pointing out what the circumstances were in relation to that case. I would have thought that, if controls were not introduced in that case, it is about time that we ensured, either by recommendation to the housing authorities or by legislation if necessary,  that where demolition or reconstruction works of a major nature which had a high level of noise nuisance, were to take place beside public buildings there should be special steps taken to ensure that they were protected, and that their patients, or students or users, were allowed free use of the building.
If the Parliamentary Secretary would reply to those various points, I should be very grateful. I am pleased to see this Act being continued but I still hope that the appeals provision may be modified at the same time as the 1963 counterpart is.
Mr. J. Fitzgerald: I should like to support the motion. This order specifically relates to cities and large urban areas and has served a useful purpose. If this Act were not in operation many houses would disappear due to the operation of the developers who would be more concerned with their profits than they would with the housing problems they would be creating for the local authorities and the Department.
The Act became law in July, 1969, and the number of applications for permissions received by all local authorities from then to 31st March, 1971, was 312... The number of applications for permission made to Dublin Corporation up to 31st March last was 367.
Mr. Cunningham: I am sorry to interrupt, but the figures we have for the country as a whole are in respect of the year ended March 1971, whereas for Dublin city we give a  more up-to-date figure, that is the 367 mentioned by the Senator.
Mr. J. Fitzgerald: I accept that, but it would indicate that a great proportion of them are in relation to the Dublin Corporation area. Therefore what I am saying is correct—it is more applicable to the cities and larger urban towns than to the rural areas. I am a Senator from a rural area, a county not blessed with many big towns, and we are not affected so much by the problem of house demolition. However, we have another problem in relation to that. It arises where a local authority houses an applicant in a local authority house. If that successful tenant comes out of a substandard house, which may be unfit for habitation or incapable of being repaired or unfit for habitation and capable of being repaired, and if another tenant occupies that particular house, subsequently when houses become available that applicant is statute-barred from qualifying for a local authority house. This has happened in a town——
Mr. J. Fitzgerald: This is fine. “They know that before they go into it”. There is an old saying that beggars cannot be choosers and there are people who need a house so badly that they are prepared to go into a substandard house. We must have a certain amount of sympathy with this type of person, because they are glad to have a roof over their heads. When a house becomes available in an area, it is unfair that that type of applicant should be statute-barred from qualifying for such a house. I know that the Parliamentary Secretary may say that need not happen if the local authority are prepared to accept him on the one-third subsidy. The fact remains that if you house a person out of such a house, the local authority will lose the subsidy. When he is replying would the Parliamentary Secretary please enlighten me on that?
Mr. J. Fitzgerald: The Parliamentary Secretary will be replying and it is not necessary for Senator Honan to interrupt or to try to confuse. He will have time to make his contribution, if he wishes. I am just pointing out this anomaly and it is an anomaly that we should try to get rid of. As I pointed out, anybody who occupies a house of that kind does not do it with the intention of qualifying for a house next week or the week after. Unfortunately, it may be two, three, four or even five years before houses will become available in that area. It is very unfair that that type of person should be victimised and that this should operate against him when he applies for a house. On the one hand we are passing a motion to continue a Housing Act of 1969 so that we can prevent people from demolishing houses we think might be capable of repair and capable of housing tenants. On the other hand, where a family does occupy a house out of which somebody has been housed by the local authority, they will not qualify for a local authority house.
I appeal to the Minister to do something about that anomaly. We cannot be trying to prevent people from demolishing houses even though they are substandard. I am sorry to see anybody having to live in those houses, but the fact remains that there are people who are glad to live in them and if they have to do that I do not think it should be held against them when local authority houses become available.
Mr. Honan: I have spent some years dealing with the housing situation and I know as much about housing as any other Senator. The whole effort of the Department of Local Government has been directed towards taking people out of houses which were not suited for habitation and putting them into houses which were suitable. There is no complication in that. The Department should be prepared to give two-thirds subsidy to the people they were taking out of those old houses to put them into good houses. I know people who were taken out of derelict houses and put into good houses and then other people went to live in the dilapidated  houses which were unfit for occupation and were charged fantastic rents and Senator Fitzgerald knows that.
Mr. Honan: If we are to solve the housing problem this should not be allowed to continue. If the Government were prepared to pay two-thirds subsidy for housing and allowed people to be charged exorbitant rents for houses which are not fit for occupation, I do not know how the Government could do their duty.
Mr. J. Fitzgerald: Could I ask just one question? Where did those people come from who were compelled to go into those houses? They must have been around somewhere. Unfortunately for them they had no other choice but to live in condemned houses. Where could they go to? Why should they be penalised?
Mr. Honan: If the Government give a two-thirds subsidy for a house for a person in one of those derelict houses, and then allow another person to live in the derelict house at an excessive rent, how can you solve the housing problem?
Mr. W. O'Brien: As regards people moving into houses, which are not fit for habitation, when a two-thirds subsidy has been paid to the previous tenant as far as I know the Department need not pay even a one-third subsidy at that stage. Most county managers are as charitable as possible and try to provide a vacated house— not a new one—for the person who goes into a condemned house and in that case there would be no subsidy.
Mr. Crinion: This rule on subsidies is needed. I came across a house where a person was letting flats and people getting flats were guaranteed houses in two years. There was a big turnover of tenants in this house because they knew they would get a  house. When the local authorities have issued a notice saying that certain houses are condemned they do not ensure that nobody goes into them. They could prosecute the owner for letting the house or point out to the tenants that they have no hope of getting a house by living there.
If a person living in a derelict house has qualified for the higher rate of grant and if other persons live in that house then they are debarred from getting a local authority house or they only get the one-third subsidy. Something could be done there by the local authority, if the person is on their housing list. In most counties people are on the waiting list for a couple of years before they get a house. If the authority know that a person is on the list and has moved into a house from which some other tenants has moved to a higher grant house, it is only fair that this should be pointed out to him and avoid having him dissatisfied afterwards when he is turned down. It is hard for a member of a local authority to tell a person living in a bad house that he is not eligible to qualify for a higher rate of grant.
Parliamentary Secretary to the Minister for Local Government (Mr. Cunningham): I am grateful to the Senators who contributed on those important points. We are inclined to tie up the 1969 Act with the Planning Act. The purpose of the 1969 Housing Act is to conserve, as far as possible, the stock of habitable houses. The 1969 Housing Act and the 1963 Planning Act do not run along parallel lines. It is not necessary that they should because the responsibility for providing houses is one for the local authorities and the 1969 Act gave them powers to prevent the demolition of habitable dwellings. It refers only to habitable dwellings and the planned or permitted demolition of some of them and/or the change of user of such houses. We are inclined to tie it up with the Planning Act.
 Senator Boland mentioned the question of replacing of houses the demolition of which has been permitted by the local authority. There are two things involved here: one is that the local authority can put in a number of conditions of which they have a choice one being that the applicant may be asked to wholly or partly replace the accommodation which it is intended to demolish or use otherwise than for human habitation. The local authority may determine where such houses are to be located.
As a second option they can specify a sum of money to enable the local authority to carry out the replacement rather than the applicant for demolition. If the local authority feel there are loopholes in imposing as a condition that the demolisher be asked to provide a similar number of habitable dwellings and they feel this is not practicable or that the houses may be built where they do not replace location-wise the dwellings which have been demolished, they can say: “We will not have it that way: we will demand a sum of money to do the same job.”
Another important matter raised is the question of the £100 fine and the continuing fine of £10 per day, or the six months prison sentence. These are stated in the Act and continued by this motion in order that cases of this kind can be heard and dealt with in the District Court. If the fines were higher it would lead to litigation in higher courts which can be a lengthy business.
Senator Boland made a strong case that a demolisher could suffer the penalty of £100 fine and the continuing penalty of £10 per day over a long period. This is a logical argument but we must also consider that the demolisher afterwards becomes a developer and for this purpose he must apply under the 1963 Act. If he demolishes a habitable building without getting planning permission or demolition permission from the local authority, he is heading in the right direction for a refusal when it comes to the operation of the Planning Act.  If he still persists, having defied the 1969 Housing Act and also the 1963 Planning Act, he is heading for very high penalties which are laid down in the 1963 Act. If he decides to cut his throat in one place he must also cut it in another, and I think he would not have a hope.
With reference to the publication of a notice and the right of third party appeals, the interested parties under this Act are local authorities and the Act applies to the conservation of the pool or habitable dwellings. Planning does not enter into this. In the case of the Planning Act anyone who is interested in planning and the safeguarding of the environment has a right to object. In this case all that is involved is the conservation of housing. The case of the noise factor referred to by the Senator was not one where habitable dwellings were being demolished. I think this was an office block or something of that kind and not houses and this Act does not apply to that type of building. It is only where habitable dwellings or units are being demolished that one must seek permission.
Mr. Cunningham: If it is not at the time of application used as a dwelling, or if when last used it was not used as a dwelling, it does not come under this Act. There are conditions laid down in the case of application under the Planning Act.
The Senator also asked the number of appeals determined by the Minister. The break-down is as follows: Of the 54 appeals the number granted was eight: 27 were granted with conditions and 19 were refused. What might be alleged, therefore, is not correct.
Mr. Cunningham: Yes, 35 to 19.  The Senator also asked for percentages. I mentioned the number 312 and Senator Fitzgerald also mentioned this figure. This is for the year ending 31st March, 1971 and is for the whole country. For the year ending 31st March, 1972 we have only got the figure for Dublin: country applications are not included. Of the 312 applications, 21 per cent were granted without conditions, 62 per cent granted with conditions and 16 per cent refused.
Mr. Cunningham: I have not got that information. Senator Fitzgerald suggested that a large proportion of these were Dublin cases. I would say up to 90 per cent of the 312 would be from the Dublin area. Taking the Dublin figure of 367, the percentages are as follows: granted, 70 per cent, refused, 30 per cent. These are all Dublin cases. There are 86 cases awaiting decision. He then went on to discuss subsidies, condemned houses in rural areas and the law which states that if a tenant of a condemned house is rehoused by the local authority no subsidy will be paid in the case of another deserving tenant. It does not come under this Act. The 1966 Housing Act, which makes the subsidy provisions, deals with that. I just wish to say this is a continuation of the Act and we feel that it is necessary.
Mr. Cunningham: I thought I had covered that. Sorry, no, I did not. This has to do with housing conservation. Any application is an application to do away with houses. I cannot give all the reasons for not putting in a proposal which would indicate what the Minister intends doing in the new Planning Bill. A number of reasons come to mind. Demolition can be a policy matter—it may become necessary to demolish derelict areas of any town or city. It is necessary for the Minister to ensure that Government policy in this respect is adhered to.
Mr. Cunningham: In a derelict area there are habitable houses. This order is not on the same lines as the Planning Act. It deals with the preservation of habitable dwellings. It is safe to leave the matter in the Minister's hands.
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