Wednesday, 14 March 1990
Seanad Éireann Debate
Mr. Howard: Could I raise a point with the Minister on section 9? Section 9 imposes a duty on every owner and occupier of land, including a statutory body and a State authority, to take all reasonable steps to ensure that land does not become or does not continue to be a derelict site. I want, in relation to that section, to ask the Minister if this power, as I am sure it does, but I simply want confirmation of it, applies to land that has once being mined. I say this with regard to certain mines which are no longer in production and have not been for a number of years. I refer in particular to one in east Galway. While I want to say to the Minister that I have no objection, as other people may well have, to the mining of certain minerals, if it is to the benefit of the country and of the community, nonetheless I strongly object to a situation where the wealth of a particular area can be extracted and those who extract it leave that property in a derelict situation. That is very true of certain properties in east Galway at present. It may well be true in the future of certain properties in Senator McKenna's constituency. So I am simply raising the point with the Minister to confirm that the power will be in this legislation to compel the owners or may I say, those who mined the minerals from areas to restore the land and the countryside to an acceptable appearance.
Minister of State at the Department of the Environment (Mr. Connolly): All  land is covered and land where a mine will be used or has been used will also come under the section where it is derelict or where damage is being caused to adjoining land, or whatever the case may be. Common understanding will rule in all of this.
Mr. Connolly: I dealt with this the other day in regard to the owners and I gave a very detailed explanation. As the Senator knows coming from a rural area like the Cathaoirleach and other Members, the owners always are known. There are ways and means of finding the owners. I do not want to go into that because we had a long debate on it on Thursday last.
Mr. Connolly: There has to be onwership. In the case of a company or an individual there has to be an owner. I do not want, for legal reasons, to go into names but irrespective of what the position may be in regard to the land, there are owners.
Mr. Costello: I did not intend to say anything on this section but on the Order  of Business today a matter relevant to the proposed amendment to section 11 was raised. Perhaps the Minister would clarify it for me. The proposed amendment is that the local authority or the Minister would specify measures which would include measures to require the proper restoration of any structure, building or dwelling situated on such land.
Acting Chairman: I am sorry, Senator, but that does not come under section 10. If the Senator wishes to raise the matter he should do so under the appropriate section. With respect, we are now asking the House if section 10 is agreed.
Mr. Costello: This is the amendment that I wished to make the comments on. It arises out of the discussion we had this afternoon on the Order of Business when we raised the question of property developers making application for a particular set of houses on Arran Quay, planning permission having been lodged, not waiting for a response from the authority, going along with unauthorised demolition on a number of houses on Arran Quay. This has taken place in the face of us here in this Chamber, debating the  Derelict Sites Bill to prevent dereliction and you have property developers showing scant respect for property retention of fine Georgian houses. There is unauthorised demolition taking place. Could the Minister reassure us that that situation would be covered in relation to restoration? The amendment specifies that measures would be put in place that would require the proper restoration of any structure, building or dwelling.
Acting Chairman: Could I just inform the Senator that I have already ruled under Standing Order 29 in relation to Senator Manning's request? While I do not doubt the Senator's motives, he is making an attempt to circumvent that ruling by raising this matter which comes under the Planning Acts and is not relevant to this debate.
Mr. Costello: If I may just clarify, what I was seeking to do is to give an example of a situation whereby dereliction can take place and unless there are measures to ensure that retrospectively that dereliction will be set right, we have a situation where we are passing laws but are being pre-empted by people who are taking the law, so to speak, into their own hands.
Mr. Connolly: In reply to Senator Costello, I appreciate his position but that question will be decided in another area. As section 11 stands, a local authority may require any measures to be carried out to prevent property from becoming or continuing to be derelict. The underlying principle is that a property owner has a duty to ensure that his property does not, by its derelict condition, seriously detract from the amenity of neighbouring properties. It is right that  this obligation should exist and that local authorities and the Minister should be able to require the measures necessary to uphold it. The amendment, however, appears to introduce a more onerous requirement. It would permit local authorities not just to protect the public against the harm of dereliction but also to require landowners to engage in proper restoration of their buildings. If proper restoration simply means restoring a structure to a non-derelict condition then the power to do this is already contained in section 11 as it stands. If, however, as seems more likely, proper restoration is intended to cover more ambitious works then this would mean imposing a positive duty of architectural or historical restoration on private landowners in excess of what would be necessary to render a site non-derelict. How could this extra duty on certain landowners be justified when we do not impose an equal duty on all landowners and when there is no regard to the financial capacity of the landowners to carry out these extra works?
We can all understand and sympathise with the intention of this amendment. Proper restoration of buildings of character is a very desirable objective but, realistically, it is not an objective for which we can reasonably legislate in this Bill under pain of criminal sanction. If dereliction is caused by pollution it is right that the polluter should have to pay for the cost of remedying the effects of the pollution. The polluter pays a principal. That is not, however, generally taken to justify the imposition of obligations on polluters once pollution is prevented, to promote positive schemes of environmental improvement at their own cost. That is the situation. While I sympathise with the Senator, what we have done here is adequate.
Mr. Howard: I am reasonably satisfied with the Minister's response. For the first time since we began discussing this Bill I feel I am interpreting the Minister, particularly in the light of his reply, by  saying that there are particular circumstances — we mentioned the financial capacity of the owners and so on — that can, as it were, come into play as to whether a derelict building or house can continue in that state. If it is a question of introducing a human face into certain aspects of it, maybe there is not a lot I could quibble with in relation to it, but I know how easily it would lie in relation to certain structures that have been mentioned here in the last week. In relation to what Senator Naughten attempted to achieve here I feel the Minister has met the situation in a reasonable way. Therefore, I will withdraw the amendment.
Mr. Howard: Subsection 1 (a) deals with the power of the local authority and requires them to take measures in relation to derelict sites if in the opinion of a local authority, it is necessary to do so in order to prevent lands situated in their functional area becoming or continuing to be a derelict site. In the discussion last week — I want to emphasise it again at this point today — I tried to draw a distinction between buildings, structures, houses and so on, certainly in an urban setting as against rural agricultural land.
I am raising the same query with the Minister that I raised on a number of occasions on the last day here. In relation to preventing land situated in their functional area—I can only take it that we are talking about county councils throughout the country — how do you assess rural agricultural land that is likely to become derelict? It is either derelict or it is not derelict. The Minister is up against a problem. I am talking about agricultural land in rural Ireland. It is a matter of opinion as to whether it is derelict or not. The Minister is really stretching judgment and opinion a very great distance for somebody to decide that this particular field may become derelict and  the power is there to prevent that. I want verification on that issue.
Mr. Connolly: Following our debate on this last week, I undertook to consider a number of points raised about the application of the Bill in relation to rural situations. The important test as to whether land or a building is or is not a derelict sites is whether it detracts materially from the amenity, character or appearance of neighbouring land or the buildings on it. What might be derelict in an urban situation would not necessarily be derelict in a rural situation and vice versa.
I am confident that the definition of derelict site set out in section 3 is flexible enough to allow for this necessary discrimination between different kinds of location. I have looked into this carefully over the last few days. I consider now that it does not require this special amendment to deal with agricultural land or even other rural situations. I have looked into this, being from a very rural ara in the midlands, and I am satisfied that everything will be looked after in a commonsense way in all of this. I do not think the Senator has anything to worry about because I would be as concerned as any Member is here, especially coming from a rural area or even in an urban area as well. The section that I referred to, section 3, caters adequately for all of that.
Mr. Howard: I thank the Minister for having further considered the matter. He has attempted to deal with the points that I raised. Perhaps we have reached the point where it is obvious that the Minister will stay with his interpretation of it which indeed, is his right. It does not convince me that the fears I expressed have been fully met. I have always felt, in relation to legislation coming before us that one of the strengths of this House is to examine it and to try to visualise the difficulties that may or may not arise. In view of the Minister's statement, there is little point in labouring the issue. As we go through further sections I will have certain views  to express on them. Therefore, at this stage I would like to say — I am responding to the Minister's observations — I believe the Bill is badly drafted, that it is deficient and I am quite confident that certain sections of it will be found in the courts to be in conflict with the Constitution. I am prepared to leave it at that.
In relation to the query I raised, I want to segregate the two points. Land that is derelict is an obvious condition but we are dealing in section 11 with measures to prevent it from becoming derelict. Therefore one is at a stage before land becomes derelict. Who defines the fact that there is a possibility some time in the immediate future, in the mid-term or in the long-term that a particular field is likely to become derelict and therefore that necessary preventative steps must be taken?
I accept that there can be a derelict stage but this section is dealing with that point in time before a field becomes derelict. The Minister is talking here about preventing the situation from arising. The assumption has to be that nothing is derelict at this point in time. Who makes the judgment that certain machinery must be put into effect to prevent a situation from arising?
Mr. Connolly: The manager or the designated official, as the case may be. I have great faith in our local authorities and that they will use common sense and understanding. Local representatives in rural areas are very conscious of this and landowners, when this Bill becomes law, will be anxious, for value purposes to keep their agricultural land, development land, or whatever the case may be in good condition. They will be vigilant with regard to looking after this land. I have great faith in them. Senator Howard is under-estimating landowners. They will use their understanding and judgment and members of local authorities will see  that that is done. I ask that it be left in their capable hands and, I expect, as has always been the case with local authorities that I know of, common sense and understanding will prevail in all of this.
Mr. Connolly: I accept that. A number of Acts will be brought into play where that may arise. I do not want to name the reasons. A number of Acts could be used in respect of all of this. I am satisfied that common sense and understanding will prevail.
“(d) direct the local authority to take such steps as may be necessary so as to ensure that a development objective or objectives for the purpose of reserving land for roads or parking places or for any of the purposes of reserving or preserving land indicated in Part IV of the Third Schedule of the Local Government (Planning and Development) Act, 1963, does not result in any land subject to any such development objective becoming or continuing to be a derelict site,”.
Mr. Connolly: I understand the Senator's concern that the objectives of the development plan, reserving or preserving land, should not give rise to dereliction. However, I would not be too happy that this Bill should be used to provide formal inputs into a planning system. This is more appropriate to planning legislation and, moreover, is expressly provided for in that legislation.
Under section 7 of the Planning Act, 1982, the Minister for the Environment is empowered to issue general directives as to policy in relation to planning and development to which planning authorities and An Bord Pleanála must have regard. The Minister is also empowered by section 23 (3) of the Planning Act, 1963, to require a planning authority to vary their development plan in such manner as he may specify. The powers which the Senator proposes to confer on the Minister by this amendment are adequately catered for in planning legislation. Accordingly, the amendment is unnecessary.
Mr. Howard: I take the point the Minister is making. Of course, one has only to drive around the country — the Minister is as much aware of this as I am — to see land owned by local authorities left in a most neglected and objectionable state. That is what we are anxious to prevent. When we arrive at this point we will have a situation where the local authorities will be judge and jury or, perhaps, executioner in relation to property owned by private citizens.
Now we come to the property that is in local authority ownership. If we go on their performance regarding land reserved for road widening, or for the purpose of housing or small industrial development, that land includes the dumping of rubble and other materials, is overgrown with weeds and generally is in a derelict state. Is the Minister satisfied  that local authorities will now act as he suggested they will act?
Mr. O'Keeffe: If I might just expand on that. Under section 13 the Minister is empowered to take some action against a local authority where obvious dereliction is taking place within their jurisdiction. What the Senator fears is covered under section 13.
Mr. Howard: I appreciate the response of the Senator. I accept his intention to be very constructive in relation to the debate. Basically, the point I was asking the Minister is, that going on the record of local authorities in relation to land already in their possession what is his expectation of their response without compulsion from him — I know compulsion is provided for later on — at this stage?
Acting Chairman: We are discussing section 12. I am most reluctant to interrupt the Senator as he is new to the House, but he should make an attempt to contain his contributions within the context of the amendment or the section being discussed.
Mr. Costello: It arises just as section 13 is also relevant to it. We are talking about where the Minister has power to give direction to a local authority to take such steps as may be specified by him to prevent any land occupied by them from becoming or continuing to be a derelict site. That is notwithstanding what has  been said in section 2 where there are exclusive powers given to the local authority. It is one thing to state that the Minister can intervene in relation to the operation of the local authority and then in another section say there are sections specifically excluding any intervention. Section 2 states that the local authority can accumulate sites for particular purposes which may lead to dereliction. Then we have section 12 stating that the Minister may direct the local authorities, so there is a conflict there. Which section supersedes the other? Has the Minister got authority to override the local authority if he feels that in relation to section 2 there is an assembly of sites for whatever good purpose, road widening, parking or whatever compulsory purpose, that leads to dereliction? Is the Minister saying in this section that he has the authority to override a previous section if that leads to dereliction, in his view?
Mr. Connolly: The only thing the local authority do not come under is the paying of the levy but they are duly bound to keep their property free of dereliction, I have no doubt the local authorities will do that.
Mr. Howard: We are on section 12 but in response to Senator O'Keeffe's suggestion and supported by the Minister I withdrew my amendment, I accepted the suggestion made to me in good faith that the fears I was expressing in section 12 were taken care of and would be disposed of under section 13. That is my  understanding of section 13 which I am simply referring to in relation to what I undertook to do. I am not saying that anything was done deliberately but my understanding of it was that the fears I had expressed would be taken care of when that section came up. That is not the case. We are not dealing with section 13 now. That section deals exclusively with the disposal of sites by statutory bodies.
Mr. Howard: I am simply making the point to lead back to section 12 which we are on now. I am drawing the Minister's attention to the history of local authorities in relation to the upkeep of land in their possession. I was asking him to comment on the powers he has under section 12 to ensure that the land in the possession of local authorities would not become or would not remain in a derelict condition. I was more or less accused of being frivilous in relation to raising this matter and told my fears would be dealt with under section 13. They are not. Before we dispose of section 12 I want to be satisfied in relation to the points I have raised about the derelict condition or otherwise of sites and land now in the possession of local authorities.
Mr. Connolly: The Minister can direct the local authority to put their house in order. In regard to land, that comes under section 13 but it is linked to section 12. We can make them do that. There will be an awareness now of all this. I am realistic enough to know about local authorities and what the situation is. The Minister can compel them and he can also direct that the local authorities sell off that land if they do not get it into order.
We are going very far now in this Bill. We are putting a Bill into law now and we are giving a lot of power to the local authorities. I will not get into a legal mine field. I have put a number of Bills through both Houses in my time. I do not know  what is constitutional and what is not but the best legal advice that we have — I must accept it — is the advice of the Attorney General. Successive Governments who have put legislation through the Dáil and the Seanad have found through a Supreme Court judgment that parts or a section of a Bill were found to be unconstitutional. I am satisfied with this and I want to make that very clear.
Acting Chairman: I would like to suggest to Senator Howard and anyone else who wishes to contribute that the argument that has been made is now being repeated and it is obvious the Minister has made his response and will not vary that response. Unless Senator Howard has a further point to raise separate to what he has already made I would like to put the question.
Mr. Howard: As I read section 12 dealing with the power of the Minister to direct local authorities I do not see what teeth will be in that power. That is the point I wish to raise. The Minister can “direct”. Should the local authority decide to ignore him, where are the penalties now?
Mr. Howard: I will conclude on this point. I want to assure the Minister that I have no wish to be unreasonable in relation to this but I am simply discharging my duty as a legislator here to be satisfied as to the effectiveness of any  particular piece of legislation. I intend to discharge that no matter how long it takes or how difficult the going may be. Like the Minister I am a reasonable person and reason can prevail. A lot can succeed in situations like this.
Mr. Norris: I will be brief. I do not wish to antagonise the Minister at all who is very direct and extremely clear, I share some of the concerns of Senator Howard to this section, its absence, as he calls it, of teeth. I am not a member of a local authority so I am not a bit worried or intimidated by threats to abolish local authorities, I have to say to the Minister that the situation is a good deal more complex than an entirely black and white one.
I do not wish to be placed in the invidious situation of appearing to condemn local authorities. I know they do a lot of very good work. However, that there are circumstances where there is a genuine conflict of interest, I regret, for example, as a matter of general principle, that local authorities are exempted from the operation of their own development plan. They do not have to go for planning permission for their own developments and so on. There are a lot of exemptions. I may, perhaps, have technically got some of them wrong in the way I am expressing it but the Minister I am quite sure will know what I mean.
I speak principally from the experience of urban areas, the kind of thing that people like myself are concerned about. The Minister has assured Senator Howard that in certain circumstances he could and would be prepared to abolish councils, which seems quite extreme. That might be a good idea — I do not know — but it certainly would be interesting and exciting and make for good lively local politics. In an urban area, for example, the kind of thing that can happen makes me regret that Senator Howard has withdrawn amendment No. 11.
Mr. Norris: The point is that what people are concerned about is a situation which is frequent in local authorities and the Minister may very likely be aware of it where road development comes into play and strategic houses along the line of road development are acquired by the local authority by compulsory purchase order. They are then allowed to go derelict and this reduces the value of the adjacent properties so, in fact, it allows local authorities to buy in property at a very reduced rent and that militates against the interests of local house owners. For that reason I would like an assurance that there are indeed teeth in the provisions and I regret that the amendment has been withdrawn. Perhaps the Minister can give some assurance on this matter.
Mr. O'Keeffe: What had we up to now? Basically there was nothing we could do until dereliction was upon us. Under section 12 what is happening basically is that the local authority can be asked by the Minister to put their house in order. In section 13 if the local authority is not prepared to do that the Minister has the power to suggest to that local authority: “You are making no use of this land so therefore I direct you to sell it off.” I cannot see what the major problem is here. There are more teeth in this Bill than we ever had previously and, therefore, I cannot see any reason why we cannot agree to section 12.
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