Seanad Éireann - Volume 133 - 05 June, 1992

Local Government (Planning and Development) Bill, 1991: Second Stage (Resumed).

Question again proposed: “That the Bill be now read a Second Time.”

Mrs. Hederman: I would like to correct one small error which I made yesterday. I was speaking about a reference in which my local authority and my residents' association were involved — whether windows were an exempted development or not and I was in error. That particular reference was taken by the local authority, but everything else I said is correct. It still has not yet been decided after, I think, about 15 months; I did not check the exact date, but it is between one year and 18 months. The one the residents' association did take was a reference to bed and breakfast because the planning authority simply would not take the reference and, in that case, the residents' association took it. I just wanted to clear up that point I made yesterday.

Speaking yesterday about appellants and third parties only having a month from the date of the appeal to make their case, I was trying to make the point that this is genuine. It may not be clear to those who are not regularly involved in trying to present information, whether at an oral hearing or in writing, that this is not something you can do quickly; it takes time. One of the points I want to make — if I did not make it already — is that my local authority publish the lists of their decisions every week but other local authorities only publish them every month.

[177] When investigating this, I was told that Wicklow County Council sent the January list of the applications and the appeals to An Taisce, one of the four prescribed bodies which is obliged to take these matters seriously on 7 February. As I understand it, if a person was interested in an application that was on the list and an appeal had been made on 2, 3, 4, 5, 6 or 7 January, the time they received the information from the local authority, they would be too late. I would be glad if the Minister could clarify the issue because I only know what my local authority do. They bring out their lists regularly, and I have no complaint with that.

I understand there is no obligation on a local authority to issue such lists and some local authorities do not do so. All I know is that some local authorities issue lists weekly, others monthly. I am suggesting that the local authorities should be obliged to issue a list and there should be a legal obligation on them to make this information available because it is unrealistic to expect an organisation like An Taisce — a voluntary organisation with only two full-time employees and I do not think it gets a Government subsidy — to ring the relevant local authority every day asking if an appeal has been lodged in a certain way in order to get the information as soon as possible to comply with the one month provision. I believe that section will have to be looked at again. I am not a person who is in favour of imposing further obligations on local authorities. I am of the school that believes local authorities can do these things if left to their own devices.

I would like also to ask what provisions are made during a postal strike. How do people get the information to the local authority? I know we have couriers, but it is too expensive to send post from Kerry or Donegal to Dublin by courier. That issue should be looked at again and we should not impose this obligation on third party appellants. The appellants may be big developers and I could see them having a real problem here because they may need to get a lot of information about a major development they have [178] in hand. I believe they too have to be considered. I am sympathetic to and in favour of making life easy for developers because I am not anti-development; I am very enthusiastic about good development which I believe it is very important.

I will be putting down amendments asking that there be a relaxation in the expiration of the appropriate period, whether it is 14 days or a month. I believe the local authority must have the information within 14 days from the time the request is sent out. I asked the Minister to change that to the time the request is received by the local authority. This is very difficult to understand unless one has had experience of how a voluntary organisation, a developer or anybody else deals with the period between taking an appeal and lodging the appeal.

I very often had the experience of going with somebody to a hatch in the planning department to look for information on the file and it may not be there. I am not sure if there is an obligation on the local authority to make information available under this Bill. Would there be any problem about making copies available to all sides? I am speaking about copies not only of the relevant documents but of some of the plans of the elevations. I have been told there is a copyright problem here and we cannot do it but that does not stand up. I know of people who simply take a piece of tracing paper, lay it over the plan and mark it out so that they can come back and discuss it with their local residents' association.

It is all part of encouraging people to be responsible and not to take the attitude which I was speaking about yesterday where we are against everything. As I said yesterday, the first thing that is important is for people to be able to get the information and to have the correct information and as much of it as possible. The more the Minister can do to facilitate that the more he will be helping people to enter into a partnership with the planning bodies and the prescribed bodies and the local organisations so that they will work together instead of being at loggerheads.

I deplore and detest any group, whether they are voluntary or otherwise, [179] who enter into confrontational situations. I do not believe that anything is achieved by that. I was wondering if it would be possible to provide that all those involved would get from the local authority copies of the material which has been lodged so that they could give the proper consideration to the issues involved in the preparation of an appeal.

There is another matter that I think is very unfair and I find it very difficult to see how it will work. Originally appellants were not allowed to put their toe in the door by saying: “We are appealing this” and sending in their money. They had to have the whole case in. Then there was a court case where the court held they were entitled to put their toe in the door to keep the door open for an appeal and to follow on with the grounds of the appeal and also in the same way to ask for an oral hearing. If they get the oral hearing they can go to the oral hearing armed with all the information and research they have done ready to fight their appeal at the oral hearing. As I understand it, in this Bill they have to say they are going to lodge an appeal, they have to send in all the information and ask for an oral hearing all at the same time. I do not have any great objection to that. I know there was a problem about people saying they were going to appeal and then not sending in the grounds. Many responsible associations and groups tried to get in appeals as early as possible but I think the Minister's making it very difficult and extremely unfair by saying to them to send in all the grounds for the appeal, to do all the work, to get it all typed out and then they may discover they are going to get an oral hearing. I would like clarification on that because it seems to me to be a very strange way of proceeding. It is certainly not the way things were done previously.

I said that for a developer also who must state all the grounds for appeal a month is too short unless it is a very simple straightforward case of a domestic extension. That applies also to the local authorities who have only 14 days to submit their information. They are in the [180] same position, they have to do a lot of work and many decisions have to be taken when they are involved in an appeal. It is also quite difficult for them. I think it will result in what the Minister and his Department seem to be hellbent on which is speed at all cost as opposed perhaps to the quality of the information on which these decisions are to be made.

The worst feature of this is in section 4 (3) where the Minister has ruled out the possibility of writing in again once a person has written in and stated they want an appeal. We know they have to give the grounds for their appeal and I presume at the some time they have to say they want an oral hearing. If they discover they have made a mistake, and everybody can make a mistake in this life, they cannot write in again. I wonder is that in breach of a person's constitutional rights? It is all speed, speed, speed. If they forgot something and they get it in on the last day of the month, then that has to be circulated to the other parties but all the pressure is being put on everybody except An Bord Pleanála. Everybody is expected to send in their information. However, An Bord Pleanála has three months minimum, and there is the clause where if they feel they cannot deal with the matter in three months they can take as long as they like.

I am amazed that section 4 (3) got through the Dáil, I reiterate that I am also concerned about the effect on a developer. He may have some major development like Irish Life on George's Quay or something like that. He sends in the grounds of the appeal but he forgets to send in one document or realises there was something that had not come to his attention which he cannot send on. Is what is proposed in section 4 (3) reasonable or just? For a developer there are millions of pounds at stake. The poor unfortunate third party person or An Taisce have no money at stake. If the developer went to the court and stated he had made some error or that some unfortunate secretary had left out the documentation and that the matter was not now going to be considered by the board, I do not think that the courts [181] would uphold that. I know that the board, if it wants some extra information, can ask for it. How is the board going to know that this information was left out or that Irish Life or whoever was involved did not send in all the data? Because if Irish Life writes a second letter to tell them about this the board are precluded from reading the letter. It is as simple as that. I do not see how the board is going to know about it. I think it is a breach of a person's fundamental rights and that a case will be taken on it.

Residents' associations are all voluntary organisations. Let me give an example of my own very fine residents' association which has been in existence for 25 years and has taken a very responsible attitude. There is a central committee with a chairman and secretary and because we believe in subsidiarity and in local democracy we have subdivided the committee into five smaller areas — the Waterloo area, the Wellington area, the Dartmont area and so on, and each with their own committee. If, for example, the residents' association decides to appeal a decision in Burlington Road — which is in the Leeson Street branch area — and the Leeson Street branch have decided to appeal it and are preparing their case, and the chairman of central branch dealing decides this is very important and in a letter stating the case as they see it, what will happen when the letter is received from the secretary of the Leeson Street branch? Will that not be acceptable? From my reading of the Bill, that will not be acceptable.

What would happen if somebody in the area wanted to prevent our residents association from making an appeal and sending in the grounds, wrote purporting to be on behalf of the association? In that case the residents association would never have an opportunity to appeal because an individual who lives in the area might be a member of the association. Is it too Machiavellian to imagine that that could happen? I do not think so when you think of what is at stake for the major developers. A major developer might find a resident sympathetic to his point of view and by writing sooner than [182] the association would foil the residents' appeal. I would like that point to be looked at very seriously and to be clarified because I can see that happening — and I have not a particularly Machiavellian mind, alas. I wish I had because it would be helpful in politics. If I can see that pitfall, imagine what a more devious person could see. That is something I am extremely concerned about and which I feel will have to be looked at.

If the Minister can assure me that I am incorrect about that I will not continue. I think this section is a breach of natural justice and a case could be taken on it under Article 43.2 of the Constitution.

I would like to know did the Minister consider the question of making internal reports available to members of the public, and what about the inspector's reports. As regards making internal reports available the EC Council Directive 90/313/EC of 7 June 1990 on the freedom of access to information on the environment says: “Considering the principles and objectives defined by the action programmes of the European Communities the environment of 1973 ... and more particularly the action programme of 1987 which calls in particular for devising ways of improving public access to information held by environmental authorities...” In line with that would the Minister not consider that all these internal reports between Departments should be made available to the public in the same way as inspectors reports? Under section 5 (1) these reports are only available, when appealed, to the appellant. I am confused about that section but will come back to it at a later stage.

On the question of the public notice, I outlined some of the problems there. Did the Minister consider the question of having all planning notices appear in one newspaper once a week on the same day? The current situation is that an applicant may advertise on site or in any newspaper of his choice; it may be a national newspaper but I am not certain about that. I do not know whether it can be in the local newspapers. I know Wexford County Council recommended that notices [183] should be displayed on site as well as being published in the newspapers. Did the Minister think of writing that into the Bill? It is not a particularly onerous obligation to impose and I think it has merit if you want to involve people rather than trying to exclude them from the public participation in planning. It is advantageous that people should know about this and it should be made as easy as possible for them. Did he consider the possibility that the local authority might be made responsible for publishing the notice in the newspaper at the applicant's expense? I do not see that that would cause any great difficulty and this would allow the local authority to publish all the notices in newspapers on one day each week. It would also get over the other problem I was speaking about, which is that the planning authority should be obliged to issue a list.

If the local planning authority not only advertised the list of applications, which they would charge to the applicants but also advertised the list of their decisions and the list of appeals lodged, that would get over the problem of bodies and local people not knowing that on such and such a day and in a particular newspaper they could get all the decisions for the week.

Many notices appear in the newspapers which are not correct. Perhaps they do not adequately describe the site and, in these instances, the applicant has to rephrase the notice and insert it again. That problem would be got over as well because the local authority could be responsible for doing that.

When an applicant receives planning permission and there are conditions attached sometimes these conditions oblige the applicant to enter into discussions with the authority on how these conditions will be fulfilled. That can go on behind closed doors and the public or a third party, even if they were appellants, as far as I understand it, are not necessarily privy to what goes on. That needs to be clarified. I have no objection to it happening because one cannot be too cut and dried about things. If the matter can be resolved by the Appeals [184] Board putting in a condition, the developer can come back and comply with that. In many instances the developer can comply with the condition without the knowledge of people in the locality or without the knowledge even of another objector. They are not obliged, currently, unless the local authority require it my means of additional information, to submit drawings to comply with these conditions. It would also help enormously with enforcement because later on when the building is completed and it is apparent that the condition has not been complied with, there is often a grey area there because there are no precise drawings.

Section 27 of the 1963 Act relates to the retention of structures already built. It has always been clear to me from the first sentence of that section that it was intended to be a transitional measure when the Act came in 27 years ago as to allow people who had put up a building to get their house in order, so to speak, after the Act came into force. It is extraordinary that that section is still operative. It is still being used by people to obtain retrospective permission for structures already partly or completely built before a planning application is submitted.

The planning committee of Dublin City Council have written to the Minister's Department objecting to the fact that people can go ahead, put up a building or carry out a development of relatively substantial significance without getting planning permission. Once the development is well under way, probably the planning inspector comes to look at what is going on. They keep building faster and faster to be sure that they get as much done before the local authority try to stop them. They get as much building done as they can and then the developer — if may be just somebody building a house, a factory or anything else — puts in an application for retention.

Will the Minister clarify if it was ever intended that this loophole should be left there? Our city council have contacted the Minister's Department about this because we now see a situation where [185] more and more developers are building first and then looking for retention. It is time for that loophole to be removed and for a firm message to go out, that the local planning authority, backed by the Minister and this Bill, are determined and are genuinely committed to the idea that developers cannot come looking for retention.

Of course, I understand there may be a situation where, for example, a person has built a small building and perhaps, unknowingly, has done something incorrect and of course we want to be able to give them the leeway to rectify the matter. However, that is not what is happening. It is being used by developers to stymie and to frustrate enforcement action by local authorities against unauthorised development. The Minister should look at the figures for development control surveys that were carried out by An Foras Forbartha which were very illuminating and frightening. In 1986 the Environment Research Unit looked at this retention problem and confirmed that it is something which is escalating rather than diminishing. It was intended initially to cover the transition prior to the 1963 Act and post-1963 Act. It is hard to imagine that somebody who carried out a development prior to 1963 would be looking for retention now. That is not what is happening. They are going ahead and carrying out the development because they know that once the development is carried out it is very difficult for the local authority to act. How many of us here could quote a situation where somebody was made to undo a development? We had the famous case of the Central Bank. There is one instance I can remember, a joyous occasion, where somebody in Terenure, after nine years of struggle by the enforcing section of the corporation, had to take a house down and told he would go to jail if he did not. I am not at all sure that that person took the house down as I did not follow up the case.

The retention problem is extremely serious. In 1983 retention applications represented 10 per cent of the total number of planning applications made [186] to local authorities. By 1986 retention applications had risen to 12 per cent of the total. I suspect, because I do not have the figures, that if you looked at that figure in 1991 you would find that percentage had risen further. If the Minister and his Department are not prepared to close that loophole it is difficult for me to believe in the bona fides of the Ministers determination to tackle unauthorised development.

Words are easy. It is easy to bring out glossy magazines from the Department which say that we are very good about the environment and to send another lovely glossy magazine off to Rio de Janeiro saying the good things we are doing. I am not criticising or belittling those actions, provided they are backed up by the real thing and the real thing is, have the Minister and his Department the determination to close this loophole which is a scandal and which is not something which should be allowed to continue? Is there a provision in the Bill which will close this loophole? The Minister might say we have increased the fines for illegal development but the Minister knows how little that means.

If people carry out unauthorised development and did not have this loophole, they would have problems I presume with the conveyancing laws and when they came to sell the value would be greatly reduced because the planning file would not be in order. That would be a real financial incentive to those people who become involved in unauthorised development. The present situation, where there are no legal or financial restraints on development by retention, means it is a very profitable form of development for those who indulge in it at the expense of those who abide by the existing planning system. I hope the Minister will give us some good news on that and that we will be assured he intends to tackle that situation if it has not been done already.

I am confident the Minister will consider the amendments proposed. I ask him specifically and his officials to believe that any amendments I put down are not to frustrate the passage of this Bill, which [187] I welcome, or indeed to drag out things but that they have been put down in an effort to improve the situation. If the Minister cannot give us some joy on the question of the limit of a month and on an appellant being allowed to write in once and never allowed to follow up with anything else, would he consider, in the case of an appeal where there is an EIS involved, which must complicate the thing, making an exception and put them into a slightly different category?

I find section 8 (3) to be totally unacceptable. It is really abhorrent to me. I would like the Senators present to have a look at it. We have talked about the submissions or observations by persons other than the parties and the fact that when you make these submissions to the board and the section goes on to state the conditions with which a person must comply. This will be of interest to Senator Conroy with his large vision of things and the very important role he plays in the European scene with regard to mining and development. The section states:

The provisions of subsection (1) (b) shall not apply to submissions or observations made by a Member State of the European Communities arising from consultations in accordance with ...

In other words, Irish people, An Taisce or any of these bodies are to be put in an inferior position in comparison with observations which are sent in by a member state of the European Community. I will not take that. I cannot see why we should be made second-class citizens. If there is some development on our side of the Border and effluent discharged will adversely affect the other side of the Six Counties, an Irish person who wants to comment and wants to make a submission will be bound by the provisions of section 8 while somebody from a member state of the European Community will not be bound by the section.

Professor Conroy: The State.

Mrs. Hederman: Senator Conroy is [188] right. It says, observations made by a member state will be allowed and will not be bound by these provisions. Is there any time constraint put on them? It is insulting, to put it at its mildest. The people are supposed to get all the local organisations, the Irish Countrywomen's Association, An Taisce and the Chamber of Commerce, to assist the Minister in keeping our heritage and yet we are penalised as against a member state who want to make a submission. I find that a most reprehensible approach. One Government look after another Government but our Government do not really mind too much what happens to the small people who are struggling to assist in the protection of our environment. I am not asking that the section be deleted. I am asking that we all be put on an equal footing. Is that unreasonable? Does Senator Conroy think that is unreasonable?

Acting Chairman (Mr. McDonald): The Senator should address the Chair.

Mrs. Hederman: We should all be put on an even footing. It says here that we should not penalise a member state of the European Community but, equally, we should put ourselves on an equal footing with them. If the Minister relaxed the time constraints I have spoken about, they presumably would be all right for the member state as well as for us?

Professor Conroy: Why not put the member state under the same constraint?

Mrs. Hederman: I would go along with that. I want to be fair to the member state as well. I am suggesting that the Minister make it a little less rigid for everybody else and let the member state comply. Let us all be in the same boat but let the boat not be as small, as tight and as short as it is at the moment. I agree with a lot of the sections and I will not take up any more time on them.

With regard to section 15 (2) regarding appeals against conditions I ask that this be expanded to include a provision something like, “regard being had to the provisions [189] of any special amenity area order relating to the said area and any tree preservation order relating to the same area”. Under section 26 (5) of the existing Act there is no mention of special amenity area orders or tree preservation orders. It only has regard to the development plan. I cannot speak for the rest of the country but in Dublin we have, with great effort, determination and with a lot of hard work, eventually won a special amenity area order for the Liffey Valley. It would be wrong, not to take special amenity areas orders and tree preservation orders into account.

The thrust of my remarks is that I would like to see more public participation, not less. With which organisations did the Minister consult before he and his officials drew up this Bill? I know he did not consult with some of the prescribed bodies. I do not think that he consulted the local authorities. Did he consult with those bodies which represent the local authorities — the Municipal Association of Ireland and the General Council of Country Councils? The Minister is looking to the local authorities to be to the forefront in the fight against pollution, the destruction of the environment and to save our heritage. It would only be proper if he consulted them. I would like, if possible, for him to tell us a little bit about those consultations. I was interested to see in an article by Michael Greene on the 1991 Planning and Development Bill, in the December 1991 issue, Housing News. It said:

The IHBA has a concern with the proposal in the 1991 Planning and Development Bill that would require all parties to an appeal to submit comment on all grounds for appeal within one month. This is a disimprovement in the position vis-à-vis existing legislation and, therefore, the association will be seeking an amendment.

It is interesting that they take the same attitude. Were any representations made to the Minister by the Institute of Architects or Engineers or the Construction Industry Federation? I suspect that it is not only the local and voluntary organisations [190] who find this period of a month unduly short. I suspect everybody is agreed on that and everybody would like to see some relaxation in this area.

There was another point raised in this article which had not struck me but which is worth making here. Here I am speaking on behalf of the developers because I like to try to be balanced in my approach at all times. I was aware of this problem but not of the dimensions vis-à-vis an application by a large developer. The problem arises under the existing law to remove any risk where an applicant is appealing against a condition of a permission from a planning authority. This legislation does nothing to change the situation where an applicant gets permission for a large development and he is relatively happy with it, but there is one condition with which he is not satisfied — it might be the financial conditions for payments for services etc. The applicant decides to appeal this condition and is put in the position of having to run the risk of having the complete application as originally submitted, put into the melting pot again and ending up worse off than he was in the first instance. Is there any reason the legislation cannot envisage an appellant taking an appeal against a condition or conditions and only those conditions being dealt with? This practice places a developer in a very unsatisfactory position.

A third point raised in the article is that legislation can merely supply the framework, it will be the responsibility of the board to respond at an administrative level to produce the necessary improvements. That is the point I was making yesterday. I believe the Minister is aware of the problem; he may be giving the correct medicine but to the wrong patient. I believe the patient is, as it says in this article, An Bord Pleanála, and the Minister should allow them to have the necessary staff to deal with it.

Yesterday the Minister presented me with what I can only describe as a bombshell. I was distressed by his comments in connection with the time limits for planning enforcement. I thought he said he was going to rectify the position, which [191] would have made me very happy, but he is going in the opposite direction. I hope to bring forward on Committee Stage an amendment dealing with the time within the enforcement action can be taken in relation to unauthorised or non-conforming development. Some of the enforcement powers under the planning Acts may only be used within five years of the relevant contravention, but others are open-ended. The Minister went on to say:

I believe that these open-ended powers are unnecessary for the enforcement of proper planning and development and that their existence gives rise to serious practical problems particularly for the property market. Accordingly, I intend to propose that a five year time limit will apply to the use of all enforcement periods.

I thought the Minister was going to say that he would remove the five years so that they would all be open-ended.

I would like to put very strongly the reasons I think this is most retrograde step and why I think the legislation should be going in the opposite direction. May I paint a regular picture of what takes place? The Minister explained that in some enforcement situations there is a five year limit. I speak from experience. In my area we have fought for 25 years a very active and successful campaign to keep our locality as part of the living city and to prevent it becoming swamped by office blocks. Wellington Road, which every Irish person should be proud of, is zoned residential. Use of a house for purposes other than residential is not allowed without planning permission but then somebody slips in a small office. In spite of any impression I might have given, our residents' association does not march up and down roads all day spying on people. Nobody would want that; we like to be easy come, easy go and to have good relations with all our neighbours.

Somebody eventually brings to the attention of the residents' association that non-permitted use such as an office [192] use has begun. We may not be as efficient as we should be; it may take a year to come to our notice. In turn, we notify the local planning authority which we feel is the correct thing to do. The local planning authority official might take a little time to come out but would eventually ask this new illegal non-conforming user not to continue with the plan, that it is against the development plans for the area, no planning permission exists for it and they will have to apply for such permission. The offending user would do so but not in any great haste. He would take a long time about it, he might get a few reminders from the corporation, and eventually in six or nine months he would get around to lodging an application for retention. Yet, when he applies to the local planning authority they must give a decision within two months. It would then go to an appeal and with the new slick arrangements the appeal would probably be determined more quickly but at the moment it can take an average of six months. The local authority might say “no” eventually in which case it is appealed and a negative reply is received from the planning appeals board, perhaps.

In the meantime a couple of years have passed. We might ask the local authority if anything has been done about the matter and be told the authority are very understaffed. Eventually they go to the person again to say he must not proceed as he got the thumbs down from the corporation and from An Bord Pleanála. We would then assume that was the end of the matter but of course it is not. The offending developer lodges another application and this time instead of having the office on the top floor he will have it on the ground floor so the application must go through the whole process again. Normally these people only try twice although some may try it three times. We are now probably another year-and-a-half down the road so four years pass before enforcement can begin. The corporation must then find the owners of the property or the company which sometimes is not easy. The developer knows — and this is the crunch — [193] that if he can string it out for five years he is home and dry. It is not that difficult to do so. The Minister may say that with his new procedures it will be more difficult.

Mr. Farrell: The Senator is anti-development.

Mrs. Hederman: I am pro-development. If the Senator was listening to what I said yesterday he would know that I am pro-development. A great number of my comments have been made to assist developers. I quoted various representations from developers. I am anxious to facilitate law-abiding developers. Why should we penalise law-abiding people and let people, some of whom are gangsters, away with it? That is what I am objecting to, and that is why I do not favour this section.

Developers know that the provisions in certain sections, as the Minister said in his contribution, enforced and passed under the Planning Acts, can only be implemented for five years. The Minister is now intending to facilitate unscrupulous developers by introducing legislation to limit all enforcement powers of local authorities to five years. I ask the Minister if he is serious about supporting lawful development or is he anxious to penalise those who legitimately go about their business, paying their planning fees to the local authority when they apply for permission, or is he anxious to facilitate those who blatantly flout the law, who laugh at local authority inspectors?

The Minister is ensuring that no enforcement powers will be available to a planning authority once the five year period is up and I ask him not to bring in these laws. I am sure the Minister is so moved by the picture I have painted and so anxious to support local authority enforcement, because the legislation increases the fine, that he will be prepared to go in the other direction and remove the five year time limit. The five year limit is not laid down in legislation but has crept in. The attitude of my planning authority now is that if a development [194] has gone beyond five years nothing can be done about it.

I would also like to refer to the question of time limits following the despatch or receipt of documentation. In the past local authorities have had considerable difficulty issuing planning applications within the statutory two month period. If the applicant does not get an answer within two months unless there is a request for additional information or more time has been agreed the applicant receives permission by default. This can be prevented only in exceptional circumstances. Up to some years ago that two month requirement was satisfied by sending out decisions by registered post, by hand delivery or by courier service within the two months but in the Freeney case the High Court determined that the decision must be received by the applicant within two months. Obviously the planning authority relinquish control once the decision is put in the charge of An Post. A further complication arises if the postman calls to deliver the registered letter to the applicant within the statutory period to find that the applicant is no longer at that address. This has caused serious headaches to the planning authorities.

I know the Minister will tell me that it does not matter because if it is not delivered on time, the applicant can always appeal, but I do not think that is the way to conduct our business. We are anxious to reduce the number of appeals, not to increase them. In a case like this there is the possibility of an appeal being made to rectify the situation but I do not think that is what the Minister wants and it is certainly not what I want. I strongly recommend that the Bill be amended to specifically state that it would be sufficient to issue a decision by registered post or have it hand delivered within two months from receipt of the application so that we could overcome that problem.

Regarding the restrictive implications for appellants who after making a submission to the Appeals Board may not subsequently send in additional information — they are debarred from doing so — what would happen if an appellant [195] sent in an appeal including the fee but, as often happened in the past because the Minister's Department keeps increasing the fees at an alarming rate, if the appellant or the developer sent in an incorrect amount, would they be allowed submit a further communication to send in the correct fee? I know it seems absurd, but as the Bill in many parts is absurd, one can only worry about this section.

I know that somewhere in the Bill the Minister has put in a requirement that An Bord Pleanála, when issuing its annual report, should give statistics regarding the number of appeals, how long they are taking and the number of appeals where extra time has been requested, etc. That is a worthwhile measure and will be helpful. However, it is not much good if An Bord Pleanála do not issue an annual report and, as far as I can ascertain, the last report they issued was in 1989. That is two years out of date. In addition to obliging An Bord Pleanála to put this information in their report, I suggest the Minister would put in a section obliging them to bring out their report within a certain specified period.

In support of a comment I made yesterday with regard to difficulties for An Taisce and other bodies complying with these new time factors, I discovered since speaking here yesterday that An Taisce has on its hands three major appeals. One is the Powerscourt, Bray appeal which will be held simultaneously with the Lough Key, Roscommon appeal. There is also an appeal pending for Carton, Maynooth. Senators will agree that those appeals are of major national importance. Powerscourt, Lough Key and Carton are three great Irish treasures and there is a need for a most careful and considered response. Given the time constraints the Minister intends for this legislation, it will be extremely difficult if not impossible for An Taisce to conform to them and may result in the board determining appeals having heard only the applicant's side of the story. I am concerned by a section which allows the Minister, by enabling legislation to shorten the appeals period. That provision [196] should not remain in the Bill. When one realises the problems created by the present timescale the Minister should not by regulations make it shorter. I hope all Senators will resist this measure.

There is a question I would like to put to the Minister to obtain information. I believe the Minister mentioned yesterday in his speech that a comprehensive review was carried out into the systems and procedures of an Bord Pleanála some time ago leading to various recommendations about the board's management and administration that have largely been taken up by the board. However, the review also identified features of the existing legal framework within which the board operates which inhibit the speedy determination of appeals. Was that review made public? I have been unable to procure a copy, but I am a newcomer here and I do not have the back-up of a great or even a small political party. I suspect that it was not published and, if not, I would like the Minister to tell me the reason.

If we are to achieve the transparency Europe encourages us to prepare for and which we claim to be enthusiastic about, we should have a copy of the report of that review. It was, I understand, a Civil Service review carried out on the internal workings of An Bord Pleanála. I suspect the reason that report was not published may well be that if it had been, people like myself would have factual information to back up the case I made yesterday, namely, that it would be better for the Minister, in his anxiety to speed up the planning appeals process to increase the staff and thereby the efficiency of An Bord Pleanála. The draconian measures he is now undertaking which will penalise third party objectors, etc. Would not then be necessary. However, the Benson report was published and said that in addition to a need for greater efficiency there was also a requirement to make changes in the existing legal framework. Those of us who know Benson know that after his time as chairman of the Appeals Board he went into the private sector and played a prominent rôle there. I knew him when [197] he was a planning officer in Dublin Corporation and he always supported developers. I doubt if his approach to the reform of the Planning Appeals Board would necessarily have taken on board the concerns of statutory bodies, etc. The Minister might clarify that point for me.

I want to make one other suggestion to which I have not yet given a great deal of thought but I will do so. I am in favour of decentralisation by which I mean not relocation but real local democracy, moving power away from the centre. Is there any reason the appeals stages of developments under a certain size such as small domestic applications could not be regionalised? I know that the inspectors who hear those cases travel from Dublin to Limerick, Cork, Donegal, Kerry or wherever it may be. At present an inspector leaves his plush office with red velvet carpet in the Custom House to go down to where the case is being held. It would be better if the whole process was decentralised and the appeals part of those decisions made by inspectors there. I do not imagine that it would be feasible at present although we might work towards decentralising the appeals process. I would like the Minister to give thought to this proposal as I shall before the next Stage of the Bill. It would be a step in the right direction.

I forgot to mention when I was talking about the publishing of internal reports etc., the Declaration on the Environment by the EC Council of Ministers. I have on hand as a further piece of ammunition the Declaration of the Environment made in Dublin in June 1990 during our splendid Green Presidency of the EC. The section that I am referring to is in relation to freedom of access to information on the environment. It says:

Increased public awareness and concern for environmental issues is one of the major developments of our time. We note with satisfaction the adoption of the Regulation to establish the European Environment Agency which will provide reliable and objective information on the state of the environment for the citizens of Europe.

[198] I certainly agree with that. It goes on to say:

Another important development is the adoption of the Directive on Freedom of Access to Environmental Informations which will greatly increase the availability of information to the public and will lead to the publication of regular State of the Environment Reports. We invite the Member States to accompany these reports by national environmental action plans prepared in a form which will attract maximum public interest and support.

I know we are doing that but I want to mention that as support for the idea that there should be more transparency in the process.

Finally, I have been asked to raise an issue by my colleagues on the city council and Senator Bennett may mention this also. I think a motion was passed — I was not there at the time — by Dublin City Council requesting that An Bord Pleanála be asked to comply with the development plan when making its decisions. I am not in favour of the suggestion in that bland form. It has merit to the extent that the local authority is constrained by the provisions of the development plan drawn up by the democratically elected members of the local authority. It is passed by them and they and the officials put a great deal of work into it. I suspect it is one of the instances when the Minister does not have to implement something by signature but I am not sure.

When the manager comes to give a planning decision, because it is a managerial function he is obliged to make his decision in conformity with the provisions of the development plan. If the manager wishes to permit a development contrary to the plan, it must go through a complicated procedure whereby the public is given the opportunity to comment on the proposed contravention. No such restrictions are put upon An Bord Pleanála. I am not saying that an Bord Pleanála should always have to comply but they should have to go through the [199] same procedure as the local authority when it wishes to deviate from the plan.

I was also asked to request the Minister to penalise retention applicants who use the provisions in a cynical way to thwart enforcement.

At a meeting of the Planning and Development Committee of Dublin Corporation on 12 May it was agreed:

“That this Committee calls on the Minister for the Environment to issue a policy directive to an Board Pleanála to comply with the development plan when making a decision on planning appeals brought before that board. Also to publicise the Planning Inspectors' Reports on planning appeals and that all the decisions be justified and reasoned.”

I pass those comments on to the Minister on behalf of my colleagues.

When I was looking through the explanatory and financial memorandum which came to us with the Bill I noticed that it says at the end of the explanatory memorandum that this Bill will not entail additional staffing or financial requirements for An Bord Pleanála. That is the most depressing thing I have read in this matter. The Minister is not going to allow An Bord Pleanála extra staff or facilities; he will cope with the present problem by clobbering the appellants whether they are developers or third party, insisting that they bear the brunt of An Bord Pleanála's delays. Instead of administering medicine where it is clearly required, the Minister is choosing to clobber appellants. I greatly regret that. I look forward to a fruitful Committee Stage when I know the Minister will give a sympathetic hearing to those Senators who table amendments. I would like the Minister to indicate that he will have an open attitude to these suggestions and that we will not find ourselves, as has sadly happened to us so often in the past, going through a ritual to satisfy the requirements of procedure while the Minister shows no genuine interest in improvements Senators suggest to this Bill.

[200] I am sorry I have spoken for so long but I am extremely interested in this area and it is not every day I have the Minister's ear, unlike some of my colleagues who can slip into his office or meet him on the corridor. If the Minister thinks of all the time taken up by members of his party having a word in his ear about this, that or the other, and puts them all together, he will realise that my contribution has been very short.

Acting Chairman (Professor Conroy): I think the Senator has caught up a little this afternoon.

Mrs. Bennett: The Local Government (Planning and Development Bill, 1991, in its primary function of streamlining and speeding up the planning appeals process must go a long way to satisfy the many calls for a system which is fairer to the commercial aspects of planning and development. Too often the long delays anticipated or experienced by serious and responsible developers have dampened the entrepreneurial drive and adversely affected both the available and availability of funding together with the quality of the end product. These hidden costs are detrimental to employment potential in the construction industry. They are also detrimental to the overall standards which can be aspired to, expected or demanded by our planning authorities.

Time is very definitely money. As we seek to encourage new investment from overseas in industrial projects, we must, as a nation, be seen to be fast and efficient in how we handle potential investors' money. We must equally be seen to be guided by a sound decision making process which takes cognisance of every aspect of each planning application, from the effects on existing local environment aspects to the long term planned infrastructure.

It is very encouraging to know that much, if not all, of this amending Bill has been developed out of a thorough and practical review of current procedures and past experiences within the Local Government (Planning and Development) Acts, 1963-83, as amended, with [201] the full co-operation of An Bord Pleanála.

The huge drop in the number of appeals on hand from 1,703 to 1,046 and the percentage drop of appeals on hand for more than six months from 21.4 per cent to 3 per cent in the 15 months following this review, speak well of both, the board in its attitude to its own functions and of the review body in sourcing areas for improvement. Such efficiencies must very favourably colour our view of the Bill before us when we are aware that the same persons are behind both. We are, therefore, looking to approve additions and amendments to current legislation which will facilitate not just a faster appeals process but a more efficient process. The most significant aspect of the Bill is that it will make it possible for An Bord Pleanála to process almost all appeals within a four month period without taking away from the thoroughness and fairness of the appeals process.

A number of procedural changes, particularly in the matter of time limits on and completeness of submissions, are to be introduced which can make the functions of the board more time efficient without in any way taking away from the existing rights of anyone to enter an appeal to An Bord Pleanála against a planning authority's decision on a planning application.

Section 2 of the Bill deals with the duty and objectives of the board in a framework related to a four month deadline for disposal of appeals and a six month preparatory period for the board to adjust itself to these new regulations following the passing of this Bill.

The four month deadline, more accurately defined as objective period, is diluted marginally to allow for exceptional cases which will be seen to require a greater time scale for the board to be in a position to deal properly with them. However the “don't hold your breath” aspect will be dealt with by the requirement in subsection 3 for the board to notify in writing all parties to the appeal of the actual time scale envisaged. Equally important is the requirement for the board to notify these same parties of [202] the reasons for the board's requirement for an extended period. The public accountability of this latter requirement must be laudable as it can only help to dispose of the understandable fear that exists in the public's mind in relation to statutory bodies, which can be seen to be too well defended against normal outside pressures.

However, my own great fear is that the very clause which is designed to tighten up the time scale, by its requirement of a self-imposed deadline beyond the four month basic period, will itself be the cause of greater problems. Quite simply, if I am asked to quantify the time required for a task which has already been seen to be such that it will be a complex and lengthy task, my answer must be I do not know. If I am pressed, I will either ask for a period in which to come back with a clearer answer or I will put down a time scale which I feel certain will be far more than will be required. In other words, I will put in a sizable contingency period for the unknown.

The requirement for the specification of a date will, I fear, bring a response which indicates more time than is required. It would be preferable to see an extension to the time by which the board is expected to determine its own realistic deadline.

Section 3 of the Bill imposes a new extended deadline of 28 days, instead of 21 days, for persons other than the applicant to lodge a submission with the board. However, the sting lies in the requirements (1) that a full submission be lodged within this period and (2) that no further addition to this submission will be considered by the board. Difficulties already arise in that interested parties, other than the primary applicant and the board, are simply unaware when an appeal is made to An Bord Pleanála. As a very simple and legitimate tactic to limit objections and objectors' scope for activity, appeals are submitted at the latest possible time.

Under the current regulations we have a problem where those who might enter an appeal do not do so simpley because they do not know one exists. Will we [203] not further aggravate the situation by requiring those who become aware of the situation in time to say all they have to say immediately or shut up? The possibility for community activity is curtailed by time limitation. No party to an appeal, including the board, should be stifled by unreasonable time limitations. I feel sure that proper notification to the board of the outline of intended full and detailed submissions within, say, a further 28 days could be accepted for judgement with the appeals process and accepted or rejected on the basis of the outline.

The important point to remember in this section is that we are putting down tight barriers of time on matters which directly affect the individual and his environment. The primary applicant, the board, and the planning authority are all in the know on these matters; they have expert knowledge. The man next door, the man we represent, does not even know where to start. This limitation of time and submission will legislate against him unless (1) arrangements are made to make certain that he knows what is going on and (2) arrangements are made to facilitate easy access to substantive participation in the appeals process for the general public and (3) at the very least a period of 28 days for notification of the lodgment of an appeal be given to all parties to a planning application — this, of course, by definition, would require either the planning authority or the board to notify all parties involved in the appeal.

Clearly, from the limitations set elsewhere in this Bill, it is proposed to curtail, if not eliminate, abuses of the right to appeal to the courts purely for the purpose of wearing down objections, in colloquial terms, to stop the big guy from wiping out the little guy. We must make sure that we do not do just that in other ways to the people to whom we are responsible — the women and the men in the street.

Senator Hederman raised the question of an Bord Pleanála complying with the Development Act. Perhaps the Minister would look at that. In my own area a [204] major project was proposed recently. I am not referring to the one before the council last week but it related to a site of great historical value, which has been discovered to be the site of mills. Developers are moving in. They want to conserve, to preserve the mills and develop. An appeal has been lodged with An Bord Pleanála which is taking months to deal with it. Last week vandals moved in and what was left of these historical mills was burned. The people in charge of dangerous buildings came in the next day. This is a site that is unique to our city. I ask the Minister to examine the possibility of somebody being responsible for ensuring that property, especially historical, is not touched while an appeal is being heard.

Dr. Upton: I welcome Minister Wallace to the House again this afternoon. He is certainly having a busy week at the wicket here in this House. At this stage I would imagine that he must be quite familiar with the thinking processes of most Senators. He may even be able to anticipate, with a reasonable degree of accuracy, what each of us is likely to say on most topics. The Minister is invariably courteous in the way he deals with matters raised in the Seanad and that is something we all appreciate.

This is a very interesting and useful Bill. It comes at a time when there is a great deal of public concern about planning matters. At the same time, there is considerable ignorance among the public in relation to the details of planning legislation and planning regulations and in regard to how their concerns in relation to developments can be processed by the system. As Senator Hederman said in the course of her contribution, there is a useful booklet on how to make a planning appeal — I do not recall its exact title. It is well written, but perhaps a bit out of date now. Nevertheless, it serves a valuable function.

At the same time, and despite the existence of that booklet, people are very concerned about planning developments. However, they do not know how to go about making appeals, lodging objections and so on. There seems to me to be [205] great scope for development of public awareness and for an education programme in relation to those matters. Perhaps this is not directly relevant to the contents of this Bill but it would be worthwhile development and is really needed.

The objective of the Bill is to shorten and streamline the planning process and nobody could object to that. It is quite useful and worthwhile. In planning, it is always necessary to strike a balance between the anxieties and concerns of residents and the need for development. A balance must be struck between concern for the environment and the need to have developments which are absolutely essential for the economy to grow and to create employment. Obviously those developments should not be at the expense of the destruction of the environment or of our heritage.

The real difficulties arise when you get down to actually making those decisions. There have been controversial decisions in the past and part of the reason these decisions gave rise to such controversy is that we have had our fair share of extreme behaviour in regard to planning. The behaviour of some developers, with regard to planning, has been outrageous. They seem to have had absolutely no regard for the community and the consequences of bad development on the environment in which people have to live.

There has been a great deal of unacceptable behaviour from a minority of developers. I am not suggesting that all developers have behaved in that way; some have been excellent in what they have tried to do. However, one group of people seem to have total disregard for our heritage. They are what one would loosely term the bulldozer folk, who just drive their bulldozers through everything and replace very important parts of our heritage with money-making developments which are grotesque and disgusting.

On the other hand, there are also what could be referred to as the cranks. There is a crank element which is, broadly speaking, opposed to everything. They are the people the Minister for Agriculture [206] and Food, Deputy Walsh, spoke about yesterday in the debate on the Common Agricultural Policy. He said there is a certain group of people who can never be pleased about anything any of the time.

Those two elements are polarised. In many ways the job of politicians is to take as little notice as possible of both of those elements and to come to a balance somewhere in the middle, which would be in accord with the wishes of the majority of the population. The difficulty with that, of course, is that the vast majority of the population tend to be fairly silent and complaint in relation to these matters. One only hears the voices of those who are opposed to everything and politicians invariably tend to take notice of where the most noise comes from.

Mr. McMahon: The half-belted earls.

Dr. Upton: That is a very interesting and old remark. I have forgotten where it came from originally.

Mrs. Hederman: Mr. Blaney or Mr. Boland.

Dr. Upton: It was Mr. Boland who made the remark. It is a while since it was made.

Mr. McMahon: I am his successor in the Oireachtas.

Dr. Upton: I should have remembered that Senator McMahon shared the constituency where Mr. Boland had been plying his trade. I am not sure whether Senator McMahon was in the same constituency when Mr. Boland was there or whether he came in after Mr. Boland had moved from the political scene. At the risk of being irrelevant, I am happy to say that Mr. Boland is alive and well and full of gusto. I recently encountered him at a juvenile football match in which one of my sons and one of his grandsons were playing. I can say that, at least in terms of football, he has lost none of his vigour.

[207] Acting Chairman (Mr. Fitzgerald): Perhaps Senator Upton would get back to the Bill.

Dr. Upton: I will take the Chair's advice. It is difficult to strike a balance between the element who are quite reckless in how they behave and the other element who oppose everything. A much greater effort should be made to resolve these problems at local level. Solutions to such difficulties should be reached on the ground and appeals to An Bord Pleanála, particularly in relation to small and medium-size planning applications, should be a last resort.

I am fully in favour of the idea of an independent appeals body, but I would like to see people using it as a last resort rather than looking to An Bord Pleanála from day one. People seem to take the view in relation to some planning applications that they are going all the way to An Bord Pleanála and the earlier applications to the local authority are a way of going through the motions but the real application will be decided by An Bord Pleanála. That is a regrettable approach. A far greater effort should be made to resolve these problems locally.

The local representatives' role in relation to planning is minimal. They have the capacity. At planning meetings cases can be discussed and local representatives can make representations and let their views be known, but the manager ultimately has his say. One would wonder whether the views of the local representatives count for a great deal; I sometimes think they do not. I would be in favour of strengthening the role of local authorities in the planning area. In the majority cases, local public representatives have to make the welfare and the concerns of the people in their local authority area their first priority. If any local authority member does not do that, sooner or later the public will find out. There are unpleasant lessons to be learned particularly by the Fianna Fáil Party in the Dublin County Council, from some of the planning and rezoning decisions taken by the council before the——

[208] Professor Conroy: I strongly reject those assertions. They are made without any serious foundation.

Dr. Upton: The political perception was that quite a number of outgoing Fianna Fáil councillors lost their seats because of re-zoning decisions made by Dublin County Council. I was not on the council at that stage so I am not in a position to discuss the matter, case by case, but it is fair to say that was the widespread political perception at the time. Whether it was a political reality, I am not in a position to say. I did have the honour and privilege of contesting the Dublin County Council election in which I was even more honoured to be successful.

In the area I represent, and where I contested the election, planning matters were well down the list of priorities for a variety of reasons, one of them being that there is not very much development land left in that area. All the key decisions that can give rise to controversy were resolved long before I contested an election. I would like to see these problems resolved at local level as far as possible. That is the way local democracy should work.

I also accept the need for a court of final appeal which is seen to be fair and isolated from the political process. The political process has a very valuable role to play in resolving difficulties and in funding solutions by discussion. A greater effort should be made to involve local representatives and local communities in the search for solutions.

I was pleased to hear Senator Hederman talking of her experiences of residents' association and developers who had their heads knocked together so that sensible, realistic and acceptable compromises were worked out. That should be the way forward. It is much more desirable that people progress on that basis rather than that they get involved in ugly, controversial planning appeals which drag on, which polarise people on both sides of a community. If developers succeed after alienating the community, that has a long term knock [209] on effect for the developer. It is not a very good way to start any development. We should try to resolve these issues harmoniously. If that cannot be done, so be it but such divisions should only happen after all the other possibilities have been exhausted.

There is also the question of how the rights of the various parties in planning are to be protected. This Bill proposes a number of changes to limit the rights of third parties and this is a matter of concern. First there is the increased expense of lodging claims. It is desirable to have some element of financial restraint to prevent people from lodging a vexatious claim. The Bill also provides for disregarding claims which are determined to be vexatious. Many of the planning objections can be trivial. As Senator Hederman stated yesterday, some of them can be lodged for tactical reasons. They can be lodged by other developers who have, in essence, no real interest in the application in question, but for their own competitive reasons they lodge complaints to slow down the whole process, to drain and tie up resources and to stop the development. That can be used as a tactical tool between competing developers who have different agendas and difficulties between themselves. It is a pity that can happen and that the planning appeal process can be abused in that way. The possibility of such abuses will always exist to some degree and it is impossible to eliminate them completely, or at least reduce them to the minimum.

Organisations like An Taisce appear to be concerned about some of the restrictions in relation to lodging appeals. The fact that it appears to be necessary to lodge appeals in full within a month creates a considerable burden for third parties, many of whom are simply amateurs and do not have access expert backup and support. When those people come to lodge appeals they are dependent on very limited and restricted resources. It places a considerable burden on them to have to submit the whole statement of their case within a month. In small and simple cases that might be acceptable and reasonable, but [210] in large and complex cases it creates great difficulties which, in some cases, are compounded by the fact that the planning lists do not become available for quite some time after the planning applications have been launched.

In Dublin, typically, it takes about a fortnight for the planning list to become available. In County Wicklow the planning lists are only made available once a month. That would create great difficulties.

Mrs. Hederman: Senator Ross will get that sorted out.

Dr. Upton: I would not doubt the capacities of Senator Ross, now that he has taken to restructuring and reforming County Wicklow. It is perfectly obvious to me from his earlier intervention in relation to sewerage and water supplies that he is starting from the ground and building his way up and I have no doubt he is making progress. Yesterday, he went over one of the cases he was dealing with.

There are considerable difficulties in that regard, particularly for people who are essentially amateurs. The time restrictions cause considerable difficulties for residents' associations, all the officers of which work in a voluntary capacity. They do not have expert back up and they are very dependent on the efforts of their members. Frequently, members have to start these planning objections and appeals from square one, and they have to learn the business as they go along. It is a pity that these people do not have access to a greater level of expert advice.

Debate adjourned.

Acting Chairman: When is it proposed to sit again?

Professor Conroy: It is proposed to sit again at 2.30 p.m. on Tuesday.