Seanad Éireann - Volume 155 - 08 April, 1998

Local Government (Planning and Development) Bill, 1997: Second Stage.

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

Minister of State at the Department of the Environment and Local Government (Mr. Molloy): The purpose of this Bill is to amend the Local Government (Planning and Development) Act, 1983, in order to allow for an increase in the membership of An Bord Pleanála. The membership of the board is currently restricted by the 1983 Act to a chairman and five ordinary members. This Bill will allow the Minister for the Environment and Local Government to increase the size of the board where the Minister considers that its workload warrants such an increase. The Bill does not specify the number of additional members that may be appointed but allows the Minister to do so by order. However, any order will be for a period not exceeding five years and will be subject to a positive resolution of both Houses of the Oireachtas.

[60] The Bill also provides for the indemnification of the members and employees of the board where they perform their functions in good faith. This provision was introduced in the Dáil and is now a standard provision in legislation applying to semi-State bodies. It ensures that individual employees of the board will have protection against any possible legal action taken against them where they are carrying out their normal duties on behalf of the board. Such a provision is particularly important for planning inspectors who must visit sites and prepare reports on planning appeals, some of which may be contentious. It does not protect employees where they go beyond their duties or act in a negligent manner.

The Bill provides that the additional members of the board are appointed in the same manner as the existing board members whereby ministerial appointments to the board are selected from nominees put forward by the members of organisations in four panels. These panels represent construction and business organisations, planning and professional groups, environmental bodies and general interest groups. With regard to the additional board members, the Bill provides that prescribed bodies for all panels will be asked to nominate candidates for appointment.

The nomination process will take some time to complete because the 1994 planning regulations give the nominating bodies two months from the date of the request to put forward names. The Bill, therefore, allows as an interim measure, to meet the current urgent need, that officers of the Department of the Environment and Local Government and employees of An Bord Pleanála may be appointed to the board. The Bill allows for a maximum of nine months for these interim appointments, although it is likely that the appointments will only be for a period of three to four months. The provision allowing for the appointment of staff of the board as interim board members was introduced in the Dáil following representations on behalf of the board's staff.

An Bord Pleanála, its staff and board members play a crucial role in the Irish planning system. I take the opportunity to pay tribute to their hard work, especially for the great efforts they have made in coping with the huge increase in planning appeals over the last two years or so. While all of us may disagree with individual decisions of the board from time to time, it is fair to say that it has won widespread respect for doing its job efficiently and impartially.

Through its work, An Bord Pleanála has played an essential role in ensuring that the best qualities of the Irish planning system are preserved and upheld. The procedures used by the board are seen to be of a very high standard, above board and transparent. For a small fee people seeking planning permission and third parties who feel that the principles of proper planning and development are not being upheld have an opportunity to appeal local authority planning [61] decisions to a completely independent tribunal. This third parties right of appeal is almost unheard of in most other European countries.

A core principle of the Government's strategic management initiative is to ensure quality public service. The issue of providing a quality service extends throughout the public service and is crucial to the success of the planning system. One essential element of a quality planning system is the timeliness of decision making. Delays in making decisions on planning applications or appeals have a financial cost both to the developer and to the economy in general. However, it is fair to say that the Irish planning system has generally worked well. It has, for example, facilitated the 50 per cent increase in building output over the last three years. This statistic in itself gives the lie to some of the vociferous complaints that have been made recently about the planning system.

An Bord Pleanála has a statutory objective to decide cases within four months. Reflecting the growth in the economy generally, there has been a steady rise in the number of planning appeals and other cases coming before the board since the middle of 1995. The number of cases received by the board was 3,927 in 1997. This compares with 3,424 in 1996 and 2,874 in 1995 and represents a phenomenal 37 per cent increase over a two year period. There is every indication that appeals will continue to rise in 1998 to approximately 4,500. The Government and the board have been concerned to ensure that, despite this increased pressure on the board, it continues to achieve a satisfactory level of performance.

In 1995, 98 per cent of all appeals were disposed of within the four month statutory period. However, by the end of 1997, this rate had declined to approximately 82 per cent and it is continuing to decline; it is now approximately 73 per cent. The average time taken to deal with appeals has increased from 14 weeks in 1995 to 15 weeks in 1996, and it is now running at 17 weeks. However, the number of appeals disposed of per year has increased by over 1,000 between 1995 and 1997.

The decline in the percentage of cases disposed of within four months has occurred despite the fact that an increase in staffing has been approved. The board has an approved complement of 85 staff, which is an increase of 14 since January 1997. It will be appreciated, of course, that there is a time lag before increased staffing is fully reflected in output. In an attempt to improve efficiency, the board has also been upgrading its computer systems.

The statutory limit on membership of the board is six, that is, a chairman and five ordinary members. This limit is now proving a bottleneck in terms of increasing the number of decisions and will adversely affect performance until additional members can be appointed. If, as estimated, the total number of appeals continues to rise sharply in 1998, and if this House agrees to the increase in board membership, the board estimates that, with the appointment of two [62] additional board members during 1998, the percentage of cases determined within four months will be back up to approximately 90 per cent by the last quarter of this year and will increase to 95 per cent in 1999 with the full year benefit of the extra board members and staff.

By way of explanation of why the limit on the membership of the board can cause delays, I would like to explain briefly the workings of the board. An Bord Pleanála is a full time board. The board's procedures are such that no single person, be it a board member, inspector or other staff member, can ensure what the board's decision will be in a particular appeal. While the quorum for the board meeting is three, all members would usually attend a board meeting where a particularly complex or sensitive case is involved.

In considering an appeal, all submissions on the file are considered together with the inspector's report and recommendation. The board gives due consideration to the report but the decision may be at variance with the recommendation of the inspector. For instance, in 1996 the board accepted the general thrust of the inspector's recommendation in 89 per cent of cases. It can be seen that these carefully balanced procedures place considerable obligations on all board members.

In view of the urgency of the current situation, and the risk that any further rise in appeals will affect the board's ability to perform effectively, this short Bill is being brought forward specifically to allow for the appointment of the additional members. As I have indicated, I estimate that two extra board members are required to meet the board's current workload.

Section 1(a) substitutes a new section 3 for section 3 of the Local Government (Planning and Development) Act, 1983. This provides that the membership of the board shall, as at present, consist of a chairman and five ordinary members. However, the Minister for the Environment and Local Government may, by order, appoint additional board members where he or she is of the opinion that the levels of the board's work would justify an increase. Such an order would be subject to a confirming resolution of both Houses of the Oireachtas.

Subsection (5) provides that an order providing for an increase in the membership of the board would specify the period for which the increase in membership would apply. This period cannot exceed five years. The Government is not, therefore, providing for a permanent increase in the number of board members. We have chosen instead to provide a mechanism with the necessary flexibility to cope with changing workloads.

I have already referred to the procedures for interim appointments to the board from the staff of my Department or from the employees of the board itself. This is provided for in subsection (4) of the section. This provision is required so that urgent work demands can be met while the nomination [63] process is under way and appointments are being made.

Section 1 (b) of the Bill inserts a new subsection (2A) into section 7 of the 1983 Act to provide that the additional members will be appointed from among those persons nominated by the various bodies prescribed under that Act. At present, board members are chosen from among candidates nominated by various bodies which are divided into four specialised panels. These are planning and professional organisations, such as the Irish Planning Institute, environmental associations, such as An Taisce; construction and business organisations, such as IBEC and social, economic and general interest bodies, such as the Irish Creamery Milk Suppliers Association. One board member is appointed from the candidates on each of the four panels. The fifth member must be a civil servant serving in the Department of the Environment and Local Government.

The Bill provides that nominations for appointment of additional members will be sought from the prescribed bodies in all four panels. This section also provides that the additional appointments are spread evenly among the four panels to ensure, for example, that where two appointments are made both persons do not come from the one panel.

Section 2 provides for the indemnification of members and employees of An Bord Pleanála as well as persons working on contract for the board or on secondment from the Department of the Environment and Local Government. This provision rectifies an anomaly in respect of the board in that other agencies operating under the aegis of the Department have had this indemnity since their establishment, for example, the National Roads Authority and the Environmental Protection Agency. This provision also applies to other semi-State agencies such as Telecom Éireann and the Health and Safety Authority. As I explained earlier, this provision only offers protection where functions are being carried out in good faith in the course of a person's work for the board.

Finally, section 3 clarifies that the provisions of this Bill do not affect the position of existing members of the board.

I am sure Senators will appreciate the importance of this Bill to the continued efficient and effective operation of An Bord Pleanála and of the planning system generally. Accordingly, I commend the Bill to the House.

Mr. J. Doyle: I welcome the Minister and am glad we are disucssing a less contentious issue that than discussed on the last occasion. The purpose of the Bill as outlined by the Minister is to amend the Local Government (Planning and Development) Act, 1993, in order to allow for an increase in the membership of An Bord Pleanála, currently restricted by statute to a chairman and five ordinary members.

[64] Since the passing of the Bill by the other House, Senators who are members of the Joint Committee on the Environment and Local Government which is making a submission to the planning review, had an opportunity of meeting the chairman of An Bord Pleanála and discussing with him many of the issues raised in the Dáil on Second Stage. Two colleagues on the other side of the House are Members of that committee. The chairman, in his introductory address to the committee, explained that An Bord Pleanála is currently operating on the basis that the intake in 1997 of 3,920 cases constituted a 48 per cent increase on the average of 2,661 cases in the period 1986 to 1995 since the six person board was set up in March 1984. The increase in the number of applications to the board reflects the growth of the economy and the framework of the legislation did not envisage the volume of appeals which the board is currently receiving. The chairman expressed concern that the urgent problem faced by the board be addressed as soon as possible as pressure on board members was intense.

The chairman explained to the committee that in the period 1992 to 1996, An Bord Pleanála operated on the basis that at least 95 per cent of cases were determined within four months. This level of performance is without parallel in any part of the UK. The average period of determining an appeal before An Bord Pleanála is currently about 17 weeks. The chairman was of the opinion that this is not good enough and he felt that the economy demanded a higher standard of performance. The board has set what it considers to be achievable objectives. It feels it is possible to determine 95 per cent of cases in four months on an average of 13 weeks, but this is a demanding standard and in order to achieve it An Bord Pleanála urgently requires additional board members, as provided in the Bill, as distinct from staff. The chairman pointed out to the committee that the longer the delay in enacting the legislation the worse the delays will become. The current period of 17 weeks may extend to 19 or 20 weeks and the chairman believes this would be unfair to the public which is entitled to a higher standard of service.

I noted that on Second Stage in the other House a number of Members raised the amount of fees and the circumstances in which fees are paid to An Bord Pleanála. Members were of the view that it is a pity they cannot make their views known in submissions to An Bord Pleanála, especially in view of the local knowledge they may have of a particular application, without being charged a fee. Some Members were of the view that exemption from the fee would result in them becoming a conduit for planning appeals applications. In that way, members of the public could circumvent the fee by asking their public representative to make an appeal. The amount of the fee and the circumstances in which it is paid are fixed by way of regulation by the Minister for the Environment and Local Government. Because of this the Joint Committee on the [65] Environment and Local Government, in its submission to the planning review, will request the Minister to allow public representatives expand on their representations to An Bord Pleanála in relation to planning applications without being charged a fee and only after an appeal has been lodged.

An Bord Pleanála, in interpreting the proper planning and development of an area, is empowered to contravene the provisions of a development plan. A local authority, on receiving a planning application which requires material contravention to its development plan, may decide not to initiate the procedure. By doing so the city or county manager must automatically refuse planning permission. If the planning application is to be proceeded with a certain procedure must be embarked upon — the plan must be displayed for a month and objections from the public must be heard before a decision is made. Also, before a decision is made three-quarters of the elected members must vote in favour of it. An Bord Pleanála does not have to go through the procedure prescribed for local authorities, viz., putting the plan on display for a month and hearing objections from the public in the case of an applicant whose request for material contravention is turned down in the first instance by the local authority. While I accept that this rarely happens, the Minister should, when reviewing the planning laws, compel An Bord Pleanála to go through the same procedure as local authorities if they have not initiated that procedure.

In 1995 the Government indicated that it wanted the reports of the board's inspectors to be published. An Bord Pleanála, in considering this suggestion, thought it would be desirable to open all the files. Since 1995 every individual file is available for public inspection within three days. The chairman informed the committee that in 1996 it accepted the general thrust of the inspector's recommendations in 89 per cent of cases. He informed the committee that it was usual for the full board to be in attendance when major planning applications were discussed. There are healthy discussions and differences of opinion between members and each case is considered on its merits. The board also spends a little longer on cases where it proposes to depart from the inspector's recommendations to ensure the matter receives its full consideration.

An Bord Pleanála should be more open in setting out its views on why it disagrees with the inspector's report. The chairman indicated that members of An Bord Pleanála are conscious of the fact that the board's role is misunderstood. It is incumbent on the board to be more open in its dealings with the public. He also stated that members are obliged to keep in touch with outside organisations and to get an understanding or proper appreciation of how the board operates under the planning appeal system. Members had meetings with such bodies as the County and City Managers Association and An Taisce but, in view of the concerns expressed during the Second [66] Stage debate in the other House, the chairman said it might be appropriate for the board to meet the General Council of County Councils and the Association of Municipal Authorities to try to develop a better understanding of the board's role. I fully concur with this view which will be welcomed by all members of local authorities.

I want to put on record my appreciation of An Bord Pleanála, particularly in relation to oral hearings. The regulations provide that the appeal should be conducted with undue formality. Nobody should feel inhibited by turning up at an oral hearing without professional representation. I know from attending a number of oral hearings that the board is particularly conscious of this fact. The inspectors in charge of the oral hearings are courteous and helpful. This feature of the system distinguishes it from the formal appeals system which operates in the United Kingdom. Experts are now studying the system here because they believe that undue formality is an avenue worth exploring.

There is also controversy about the right of the Environmental Protection Agency to grant licences for waste disposal facilities. Local authorities can only deal with the structural aspects of planning applications as all environmental issues are reserved for the EPA. If a third party wishes to appeal the EPA's decision, that appeal will be conducted by the EPA, thus making it the judge and jury. There is an urgent need for an independent appeals procedure for planning applications where the EPA has granted a licence. I am pleased that An Bord Pleanála raised this issue in its submission to the Minister on the review of the planning laws.

I was surprised last Tuesday when a number of members of the Joint Committee on the Environment and Local Government called for the abolition of An Bord Pleanála because it has done a fairly good job in relation to planning applications. A number of buildings in this city were destroyed by decisions made on appeal to the Minister under the old procedure. I do not want that procedure reintroduced and I am sure the Minister would not want that responsibility thrust on him.

In recent times there has been growing concern about the cumbersome nature of the judicial review procedure. It is very time consuming and, to some extent, undermines the effectiveness of the changes made in the planning law in 1992 which provided that the board should have the statutory objective of determining cases within four months. Due to the delay in relation to certain judicial reviews the element of certainty in relation to the proposed development is removed or seriously eroded.

While I share the view that it is important to preserve the principle of a judicial review, I am concerned about the time delays, especially in relation to the case against the proposed hotel site at College Street in Dublin. This case has been before the High Court on at least 22 occasions and the judgment of that court is due to [67] be appealed to the Supreme Court. If Lancefort Limited lose in the Supreme Court, it intends to appeal to the European Court of Justice. The former President of the Royal Institute of Architects of Ireland said Lancefort Limited appeared to be a third force in the planning system. He went on to say that the UK had a three tier planning system which consists of the planning authority, the Department of the Environment and Prince Charles while in this country there is the planning authority, An Bord Pleanála and Lancefort Limited. We do not wish to see that comment become a reality.

It was interesting to read the judgment of Judge McGuinness in this case. She quoted from the judgment of Judge Barr in Tennyson v Dublin Corporation 1991:

Where a decision is made by a planning authority on an application made to it by a developer under section 26 of the 1963 Act, for permission to proceed with a proposed development, it may be open to challenge on two broad grounds — firstly, on purely planning criteria and, secondly, that the decision is ultra vires the power of the planning authority. The latter category of dispute includes issues relating to the meaning of the development plan relating to a particular application. The Oireachtas has provided in the planning code a forum for the adjudication of appeals from decisions of planning authorities within the first category, that is, relating to planning matters per se. Such appeals are heard and determined by An Bord Pleanála, which is a tribunal having the benefit of a special expertise in that area. The court is not an appropriate body to adjudicate on such matters and, in my view, it ought not to interfere in disputes relating to purely planning matters. However, where a dispute raises an issue regarding a matter of law, such as the interpretation of the wording of the development plan in the light of the relevant statutory provisions and the primary objective of the documents, then these are matters over which the court has exclusive jurisdiction. An Bord Pleanála has no authority to resolve disputes on matters of law.

In the final paragraph of her judgment, Judge McGuinness stated:

It is obvious that the individual members of the applicant company, viz. Lancefort Limited, deeply disagree with the decision made by An Bord Pleanála on 11th December, 1996. Even if this court were to be satisfied as stated in the O'Keeffe v An Bord Pleanála that the case against the decision by An Bord Pleanála is much stronger than the case for it, the court cannot permit judicial review proceedings to become what is, in essence, an appeal against the decision of the board.

[68] In other words, the judicial review system cannot be used as the third branch of the appeals system. I am glad the court upheld that principle.

The chairman of An Bord Pleanála informed the Joint Committee on the Environment and Local Government that last year the board handled about 3,600 cases and there were only 18 applications for judicial review. Over the last three years the board was unsuccessful in only three such cases. He said the board had an extraordinary record in challenges to its decisions because it was conscious of the need to comply with the law. In a number of cases, however, developments had been delayed unduly arising from the procedure to resort to judicial review of the board's decision. He sincerely hoped that, in future, all judicial reviews would be sought purely on points of law and that delays to planning decisions could therefore be reduced.

The only concern I have about this Bill is section 4 which provides that the Minister can increase the membership of the board by appointing additional members from his own staff for a period not exceeding nine months. It should be easy for the nominating bodies in the four specialist panels to nominate suitable candidates for a short period. Nevertheless, in view of the urgency which the chairman of An Bord Pleanála has placed on the passing of this legislation to increase the membership of the board in order that there be no further delays in planning applications, I wish to play my part in expediting this Bill through the House.

Mr. Walsh: This is a short but important Bill. Planning and development are very important to economic development and to the environment. I join with the Minister in complimenting An Bord Pleanála for its contribution to the planning process. The system works well by and large and it is unique. It is, perhaps, an example for others to follow. Given the significant growth in the economy, it is important the services of the State are at a level sufficient to match and accommodate that rate of growth and development.

It would be remiss of us in discussing planning and complimenting An Bord Pleanála if we did not also pay tribute to the many fine officials in planning departments of county council and borough corporations who every day make their significant contribution to the shape of the new and growing Ireland. It is fair to say that it is the one area in the public service at local government level which constantly works to deadlines. Planning applications must be dealt with within a statutory period and these people must ensure that happens.

Efforts have been made to get An Bord Pleanála to work within a time constraint and it is essential that happens. The Minister pointed out that, because of the increase in applications and workload, a certain amount of slippage has crept into the system as regards the period in which applications are determined. That is worrying for many developers because, if they fail to meet [69] their target dates, they can often incur significant costs and it could in some cases put major projects in jeopardy. I welcome the Bill as an effort to flex with volume.

One of the difficulties in the public service is flexing with volume. In the private sector competition will tend to regulate competitiveness and the cost of services with which people are provided. In the public service such disciplines do not apply. I welcome the provision in the Bill of temporary appointments whereby, if the Minister wishes to increase the number of staff in An Bord Pleanála, he will have to do it for a predetermined period and the appointments will have to be put before both Houses of Oireachtas in advance.

The provision to allow the Minister to increase pro tem the number of people on the board from the staff in his Department or An Bord Pleanála is also a proper development. It enables the board to deal with the increased growth rate in the economy which is giving rise to a significantly increased number of planning applications, a proportion of which end up before An Bord Pleanála. That is something I support.

It is important that the balanced constitution of the board membership is retained with these additional powers. As has already been pointed out, the expertise of those on the board is representative of people in the building and construction industry, planning and professional groups, environmental groups and other general interest groups. There is a constant and perhaps healthy strain between planning and development. Certain people have a preoccupation with planning and ensuring the environment is preserved. I do not decry that for one minute as it is essential and necessary. However, it is often promoted to the disadvantage of development which is the other side of the coin. Without development we are all affected. It is important, with the introduction of the additional powers in the Bill, that the balance in the board is maintained.

It would be timely when examining the number of appeals before An Bord Pleanála to see how genuine appeals can be separated from vexatious and spurious ones, some of which are lodged for invidious reasons. I ask the Minister to examine the possibility of legislation in this area which does not affect the genuine objectors. There are people who lodge objections to seek compensation where a developer is under a serious time constraint although such compensation might be hard to justify. That is an abuse of the system. Other areas of life have become very litigious and the rise in insurance scams is evidence of that. It is important a planning system which has served us well is protected from that type of nefarious activity.

It is important the cost of the public service be controlled. It does not have the disciplines which apply in the private sector so we must be vigilant. Perhaps appeals could be categorised as they are received. Some are important and require a certain level of expertise for examination while [70] others need a lesser degree of expertise. At £77,000 per member, the cost is high. It is important that it be examined to see how it can be dealt with. I have often argued that planning applications for small extensions to houses are treated in the same way and take up the same amount of time as a planning application for a major industry. It seems to me that the same skills or calibre of person are not needed to deal with the former. Perhaps there is scope in that regard.

In conclusion, I welcome the Bill. It is a positive effort to address a shortage of resources within An Bord Pleanála. I have no doubt the manner in which it is constructed will avoid a situation where staff numbers are increased to deal with increased volumes of work only to be left with those increased numbers when the volume of work decreases. This Bill will flex with volume and that is very good. I hope this kind of thinking will permeate other areas of the public service.

Mr. Gallagher: I welcome the opportunity to speak on this Bill and to support it. The Minister outlined the reasons it is needed. It is justified that it be taken in advance of any amending legislation which follows from the review of planning which the Department is undertaking. Any of us who is a member of a local authority welcomes the increase in the number of planning applications in recent years. However, an increased number of applications will lead to an increased number of refusals and appeals.

I agree with Senator Joe Doyle that An Bord Pleanála has, by and large, worked very well. When we look at the controversies, tribunals and the resulting questionnaires we have been asked to complete in recent weeks, we realise that planning is a sensitive matter which has severe financial implications. It is proper that An Bord Pleanála has helped to remove the political charge from the appeals end of the planning process. The Minister is adopting a good approach in his proposals.

The figures speak for themselves. The reduction in the percentage of appeals determined in the four month period is quite dramatic and requires corrective action. It is a novel and good departure for a Minister to come to this House to ask for sanction for extra temporary appointments. Some time ago we debated an increase in the number of High Court judges because some of them were involved in the Law Reform Commission, various tribunals and other work assigned to them. The question was raised whether appointments to the superior courts could be made on a temporary basis. The answer we received at the time was that they could not. However, the Minister has taken a sensible approach here and I commend him. Perhaps it is something other Ministers could look at when making appointments in response to increases in workloads.

The rise in planning activity is due mainly to the welcome rise in economic activity and to a growing sensitivity among members of the public [71] to planning matters and their right to be involved in them. One of the areas examined in the planning review in recent months was that of enhancing public participation in the planning process. I expressed that view at my county council meetings when we formulated our submission to the Department. We do not need a great deal of extra public consultation and involvement but we need to ensure that existing rights are advertised and that the public is encouraged to take part in the process. Where necessary, the resourcing of individuals and organisations to take part in the existing process will be looked at.

I would not like to see the process become overly encumbered by a repetitive appeals process. Any of us who deals with planning in our role as public representatives or as members of local authorities realises that it is getting more technical and that decisions are challenged in the courts and judgments handed down. For example, in the area of labour law it was intended that bodies such as the Employment Appeals Tribunal would provide easy access for people to the system at little or no cost. However, such bodies are finding that people almost expect to go to a planning consultant to deal with an ordinary application for a house. When the planning consultant fails, they are sent to us but a refund of the planning fee is not given.

I am concerned that the ordinary person feels planning has become a technical area to be dealt with by professionals and that his or her ownership of the system is being lessened. I would like to see measures being put in place to assist the public to participate and to avail of their existing rights to the maximum extent before giving extra rights which can lead to vexatious cases referred to by previous speakers.

As a member of a local authority, I am pleased with the way the public responded to the redrawing of the development plan for the Tullamore urban district, the council of which I am a member. They responded in a responsible and participative fashion before the draft was formulated and since it has been put on display. It is a model which could be looked at by the Department with a view to replicating it across the country.

I am concerned that the rights to participation in the planning process are being exercised in an unequal fashion because of disparity of resources. I came across a case recently where a relatively straightforward application was made by a group of people who were well off enough to employ a range of professionals to put their case rather than risk ending up in court by way of judicial review. The planning authority went to great lengths over many months to try to accommodate the genuine concerns of the residents in that area as articulately put by their professional representatives. However, in another part of town, regarding the provision of a far less attractive public amenity, the people did not have either the organisation or the means to employ engineers [72] and planning consultants to put their case as well as they might have and as a result they were not listened to as they should have been. I ask the Minister and his Department to look at this issue in the wider review of planning.

As regards the area of enforcement, I welcome the commitment that councils will be given extra finances to deal with extra responsibilities. I appeal to the Minister that, when his Department makes new arrangements for local authority finance, it takes account of planning enforcement and building control which are causing dreadful problems around the country. With the rise in planning applications, if enforcement is not carried out in a fair, impartial and effective manner, the credibility of the planning process will be called into question.

We can all cite examples of people applying for permission to put up a shed or make a small extension being told what colour roof tile to use or what colour to paint the windows while down the street, someone who proceeds with an unauthorised development and then looks for retention forces the planning authority into a corner. It has to either grant a retention or embark on a lengthy legal procedure, which I have never seen result in the removal of a building on an unauthorised development because of costs to the planning authority, the developer and the builder.

If we are not seen to enforce what can be enforced, we should not be making small rules which are not needed in the first place. Unless the Minister and his Department can help local authorities resource the enforcement of planning departments, as the volume of applications continues to expand — as I hope it will in the future — a system in which a great number of people have confidence and respect will earn less respect in the wider community, and this would be unfortunate.

We need to look beyond the boundaries of individual local authorities and co-ordinate planning on a regional and national basis. The Department of Agriculture and Food is conducting regional seminars on rural development. In one of the submissions which I assisted in drafting, we forcibly made the following point to the Minister for Agriculture and Food and I wish to repeat it to the Minister today. There is a major need for a national land use strategy and the co-ordination of planning on a regional basis because of development in urban areas which results in pressures from the spill over. I hope the review will result in proposals in that regard. I am disappointed the Minister was not able on this occasion to revisit the contents of a Private Members' motion tabled by my colleagues and me prior to Christmas, which dealt with a shorter Bill proposing to tackle the problem of road developers. It was agreed by all sides of the House that where developers blatantly and consistently disregard conditions of planning permission and fail to respond to representations from public representatives, residents' groups and local authorities, it should take into account in [73] decisions on future applications to local authorities by such developers or their associates.

The Minister agreed it was an area that needed to be tackled and it is being looked at but no great change is required. Our original proposal was that failure to comply with previous conditions should be taken into account. It is a simple amendment which is not overly comprehensive and it could have been included in a Bill of this nature. Will the Minister give an assurance that the subject will be dealt with effectively in planning legislation later this year?

I agree with the selection of extra members of An Bord Pleanála and it will be necessary to make temporary appointments. I have questions and concerns regarding the detail of that matter which I will take up on Committee Stage.

Mr. D. Kiely: I welcome the Bill. I am also a member of the Joint Committee on Environment and Local Government which had an opportunity to meet the chairman of An Bord Pleanála and he enlightened us about a great deal of its work. It was educative and I am sure his eyes were opened as many Members felt the board should be planning for the future. Much more work could be done to process planning applications more speedily.

The Bill will take a great deal of pressure off the board and reduce the waiting time for applications. The chairman of the board outlined this problem when he addressed the joint committee. I agree with previous speakers that the overspill from urban areas into rural areas should be examined. Rural people should be dealt with in a regional system which would result in many applications being disposed of more rapidly. The Minister should look at this in future.

While many people have called for the abolition of An Bord Pleanála, it is a necessary structure for people with valid objections. However, people can also cause grief and problems for neighbours, etc. by holding up planning applications. New legislation should deal with the cost of appeals by a third party if appeals are being lodged for spurious reasons. Reference was made to the new attitude towards local government and meetings with planning applicants. I welcome that and compliment the Kerry County Manager and his predecessor for trying to make the planning office in the local authority more customer friendly. It is an easier place to do business now and the chief planning officer and his staff are prepared to meet any individual or group prior to and during their planning applications if they experience difficulties. This is important because it will lessen the number of appeals being lodged and remove a great deal of bureaucracy.

The future of the board should be looked at and while two members will be appointed as a result of the Bill it is not enough. The Minister should increase the number of members and break the board down into different groupings. This would reduce the time involved and a time limit should be provided in future legislation for [74] An Bord Pleanála similar to that for local authorities. There was a high satisfaction rating of 98 per cent in disposing of appeals over a four month period in 1995 and the board must be commended. However, the rating has declined and this must be taken into account. I am glad the Minister is tackling this in a speedy manner.

I have a great deal to say to the joint committee and we should use that forum to make submissions to the Minister. He in turn can put them to the board and I am sure new legislation will come before the House. I commend the increased membership of the board to the House.

Mr. Coghlan: I welcome the Minister to the House to discuss this important measure and concur with the need to expand the number of board members. It is evident it has great difficulty meeting the four month limit imposed by the 1992 Act and the provision of two extra members is reasonable. It received nearly 4,000 applications in 1997, 3,424 in 1996 and 2,778 in 1995. There has been a steady increase in applications annually.

I feel strongly about the board's ability to overrule an inspector's report. Every council receives a copy of a report when one of its decisions is overturned but it is difficult to understand the board's reasoning at times. An insight into the board's thinking is not allowed. We should not take from its independence as it is the final arbiter of planning matters. A celebrated judgment was handed down by Chief Justice Finlay in which he stated the courts will not get involved except on points of law. In this age of openness, transparency and accountability there is a great case to be made for allowing local authorities and the public access to the board's reasoning as to why it took a contrary view rather than handing out a two line decision. The board should have a duty to fully explain the reasons for its decisions. It is inundated with work and the workload is increasing each year. This is also the case with local authorities and we would wish to see more staff in the planning departments of local authorities as requests for additional information are being made too frequently, in many cases when the two month statutory period is almost up. This is a damaging practice.

I accept the need for these environmental impact statements in the case of very large projects. However, I agree with Deputy Dempsey who stated, when in Opposition, that environmental impact statements are or can be a whitewash. It is ridiculous that the consultants appointed to produce these statements are appointed and paid for by the applicants. This is placing them in an invidious position. I am aware of a case where the developer received a draft copy of the environmental impact statement and because he disliked one paragraph it was then altered. The board or the Department should create a panel of appropriate consultants to produce these statements paid for by the applicants. This would be preferable to the applicants appointing the consultants. If these [75] assessments are to be independent and objective we must go down this road. I cannot recall the precise speech which the Minister made but I remember reading it as reported and I agreed with what he had to say.

On the new phenomenon of the invasion of British superstores or hypermarkets. I cannot recall the planning directive but these developments have effectively been outlawed in the UK. Multiples find that these stores provide the sales volumes required to produce a return on investment and they are seeking to establish a network of superstores in Ireland. These developments will have hugely adverse consequences for existing distribution facilities. We will also see the multiples becoming involved in convenience stores and forecourt markets. They will annihilate the indigenous, independent retail grocery sector. The impact of superstore developments in the UK has been disastrous. Forty two per cent of villages in the UK have no local shops. The impact will be greater in Ireland because of our disparate population density and poorer distribution infrastructure.

The 1982 planning directive on retail developments is inadequate to address the issue of superstores or hypermarkets as they were not around as a concept when it was drafted. In this vacuum the planning authorities and An Bord Pleanála might have to consider planning applications for such stores on the basis of inadequate and outdated legislation. We urgently need to address this problem. There has been huge investment in towns over the years by the private and public sectors — one only has to consider the infrastructure and the services which must be put in place. There is also the question of zoning. We zone streets as town centre facilities specifically for retailing. Are we to place all this at risk by allowing the growth of superstores in green field, out of town or edge of town centres on land presently zoned for agricultural use or residential development? This is wrong and ad hoc decisions are often arrived at.

Local authorities review plans every five years and often accept the recommendations of their planning officers who are the experts. Sometimes these people are prepared to go along with material change two or three years later. This represents a huge threat to our towns and to the capital's larger suburbs such as Malahide. This practice could change towns for the worse if allowed to continue unchecked. It will prove to be disastrous planning.

Mr. O'Toole: I welcome this important legislation and it is important for the Minister to extend it if possible. However, a huge amount of work needs to be done to restore public confidence in the planning system. I do not have too much experience in dealing with local government officials or elected members but they do their job as diligently and ably as could be expected. However, above all else, when the [76] Minister is considering the people he will appoint to An Bord Pleanála he should appoint people who are sensible and who will make a sound judgment on the needs of an area.

We have reached the stage where attitudes to planning vary widely. We have seen this with the interpretative centres. Ten years ago people did not trust their local authorities to do what was in the their best interests. Consequently, the Government tried to broaden the decision making process and An Bord Pleanála was part of that development. When people did not like the decisions made, particularly with regard to the interpretative centres, they said that power should be returned to local government.

We have reached a stage where, if someone sticks a spade in the ground, there is likely to be a queue of people lining up to complain. I experience this regularly where I live in a rural part of north Dublin. People go to a lot of trouble to get planning permission. However, once this permission is given they spend the rest of their lives trying to ensure that no one else gets into the area. I always associate this attitude with people who come into an area. There is never the same level of objections from indigenous people who have a welcoming approach to new people coming in. There is this selfish approach which I have seen time and again. On many occasions I have watched the numbers of local An Taisce branches swelling when somebody wishes to legitimise a particular objection to a planning decision. I urge the Minister to give local authorities the confidence to be more liberal in the manner in which they interpret planning regulations. A great case can certainly be made for restrictions on ribbon development. However, a case can equally be made, particularly in the Dublin area, for ensuring that planning in clusters or groups is extended in particular areas where houses already exist. We appear to have reached a stage where local government is slow to give approval or agreement for planning in certain areas.

One of the reasons the Minister may need additional members on the board is that, in recent times, a significant number of appeals are being upheld. I have heard people state their intention to lodge an appeal with a local authority knowing it will be refused and they can then appeal to An Bord Pleanála where they will have a better chance of being approved. That is the way the system works. We should have a clearer understanding of what we are all trying to achieve. A clear national policy should be imposed so that An Bord Pleanála will only need to deal with isolated cases. The unfortunate Irish approach to legislation means that everything is taken to the ultimate level of appeal and then on to Europe. That is the way in which the Irish psyche works. The very existence of An Bord Pleanála almost encourages people to go to the next stage.

While I believe An Bord Pleanála should be available to provide a means of appeal, people should have more confidence in local authorities. It should be made clear that rezoning must be [77] carried out by elected representatives. We have reached the stage where a local authority which rezones recreational land for residential purposes is immediately seen to be completely wrong.

The cost of housing has been raised in this House on numerous occasions. In the Dublin area, such rezoning is driven by the lack of development land. Development land can only be made available through rezoning——

Mr. J. Doyle: Serviced development land.

Mr. O'Toole: I will come to that. Many arguments have been raised about the lack of serviced development land. While serviced land was very important in the past, we can live in the country nowadays without piped television, piped water supply or sewerage systems. Developments in biosystems and satellites have meant it is not quite as necessary as it previously would have been to have the same level of service. I agree with Senator Doyle that there must be a certain level of serviced land but that level is not as high as it previously was.

In terms of the greenness of development and the difficulty which all local authorities are experiencing in the area of waste disposal, a very strong argument can be made for sewage disposal biosystems. That would save local authorities money although I realise it could not be done everywhere. I believe that local sewerage systems rather than large scale ones offer the way forward. In parts of Ireland, near the River Shannon for example, we are still trying to clean up sewage from towns which do not have adequate systems to cope with the outflow.

I urge the Minister to create a planning board in which people can have trust and confidence. I would also urge him to put in place a national plan on planning which would allow local authorities to take the decisions required of them and which would mean that local authority members would not be forced to run away from five or six people carrying placards outside their offices every time they took a planning decision.

We should acknowledge that elected public representatives in local authorities do a very good job and make very few errors. Any errors which are made are magnified and displayed for all to see. We should display our confidence in local authorities and we should also be prepared to admit when mistakes are made. Local authorities were criticised by many people in regard to interpretative centres, although I did not agree with most of the criticism. However, I recognise that people have different points of view on these matters. People on the ground need to have confidence in their local authorities and need to recognise that An Bord Pleanála should be a court of final rather than first appeal. We should attempt to eradicate the notion that people who seek planning permission from local authorities will be turned down but will be successful with An Bord Pleanála.

[78] I wish the Minster well with this legislation. I hope that, in extending An Bord Pleanála, he will have regard to the highest levels of accountability. I always believed that most of the people nominated to the board were far too close to political parties and that is not helpful. That is not a reflection on the people who have been appointed but in the early days of An Bord Pleanála, such appointments gave rise to adverse commentary. The people appointed to the board should be cleaner than clean and should not be tied into the political system in any way. When I refer to the political system, I am also referring to independent politicians such as myself. People must be absolutely assured that those nominated to the board are not politically connected in any way.

Mr. Burke: I congratulate the Minister of State on his frequent visits to this House. This Bill has been well debated. It allows for an increase in the membership of An Bord Pleanála and rightly allows for the indemnification of members of the board. It also deals with the panels from which membership of the board will be drawn, namely, the construction industry, business organisations, planning and professional groups, environmental bodies and general interest groups. All of these groups have vested interests and if the Minister must create an extra representative group, he should do so. I believe a representative of the County Managers' Association or the local authorities should be appointed to such a group.

During the course of my involvement with local authorities, I have never witnessed any inappropriate actions being carried out by local authority managers or officials. I believe they acted in good faith and made what was in their view the best planning decisions. I ask the Minister to consider appointing a member or former member of the County Managers' Association to An Bord Pleanála as I believe they would have a very relevant contribution to make to it. I agree wholeheartedly with an increase in the membership of An Bord Pleanála, but in the past the board has cost the rate and taxpayers of this country millions of pounds because of the length of time it took to make decisions on certain planning applications.

An Bord Pleanála's delay in making a decision about the new sewerage system in Galway cost the local authority in the Minister's area a considerable amount of money. It is agreed that everyone should have the right to appeal a planning decision but An Bord Pleanála takes too long to make a decision. It takes An Bord Pleanála between nine and 12 months to decide on a planning application. That is not good enough. An Bord Pleanála does excellent work and I do not question its decisions. However, I question the length of time involved. These delays have cost developers, local authorities, taxpayers and ratepayers millions of pounds. I believe a time limit should be placed on decision-making by the board. If this entails appointing additional staff to An Bord Pleanála then that should be done.

[79] I congratulate the Minister on the frequency with which he attends the House. Many changes are taking place in the structuring and financing of local authorities and the setting up of SPCs. It is only right that we have a debate before decisions are made on these matters.

Acting Chairman (Mr. Finneran): We are dealing with the Second Stage of the Local Government (Planning and Development) Bill, 1997. The Senator must confine his remarks to the legislation.

Mr. J. Doyle: The Senator is merely making a passing reference.

Mr. Burke: I am making a passing reference during a Second Stage speech and asking the Minister to raise this matter with the Minister for the Environment and Local Government before any decision is made on changes in local government. Local authorities have a huge role to play in planning. Every member of a local authority will welcome local government reform and this House is an ideal forum for a debate which could deal with planning and other matters relevant to local authorities. I hope the Minister or the Minister for the Environment and Local Government will come to the House for a debate on local authority reform.

Minister of State at the Department of the Environment and Local Goverment (Mr. Molloy): Ba mhaith liom buíochas a ghabháil leis na Seanadóirí a labhair sa díospóireacht. Is léir go bhfuil suim láidir ag Seanadóirí san ábhar seo agus go bhfuil tacaíocht láidir sa Teach don mBille. Glacaim leis gur labhraíodh ar ábhair eile seachas a bhfuil sa mBille. Mar is eol don Teach beidh ócáid ag gach éinne a dtuairimí faoin chóras pleanála a chur in iúl don Aire de bharr an athbhreithniú atá a dhéanamh ar an gcóras pleanála faoi láthair. Is cinnte go mbeidh neart ocáidí amach anseo chun na nithe sin a phlé sa Teach.

I am grateful to all Senators who spoke during the debate. It is clear that there is a wide interest in planning matters. It is also clear that the House fully supports the proposals contained in this short Bill and the way in which the Government is dealing with this matter. Many suggestion were made for improvements in the planning system. Senators will know that a major review of the planning process is being undertaken at present. The Minister has invited submissions from every sector of society. Major conferences have already taken place where proposals for reviewing and improving the planning system have been discussed. Senators are included in the general invitation to make representations to the Minister concerning changes to the system. There will be opportunities to debate these matters in the House and, of course, any legislative changes will be brought here for your approval.

[80] My Department will continue to monitor trends in the number of appeals and An Bord Pleanála's performance in achieving its objective of deciding appeals within four months. This is not a statutory requirement but it is a statutory objective. Those Senators who met the chairman of An Bord Pleanála know that it is very concerned to meet that statutory objective. The purpose of this Bill is to enable it to deal with appeals more quickly by increasing the number of board members available to consider appeals.

A number of Senators raised other issues relating to the planning system in general. An opportunity will be provided to examine those matters when the general review is taking place. I recognise that matters which are not relevant to the Bill are raised through genuine concern. Senator Joe Doyle referred to the practice of charging fees to public representatives in connection with planning appeals. I understand that the fee is only charged when a public representative raises new issues or expands on an existing ground of appeal. I note that the Joint Committee on Environment and Local Government intend to make a submission on this matter to the review of planning legislation and I assure the Senator that full consideration will be given to that submission.

The prohibition on planning authorities taking environmental pollution issues into account when they are deciding planning applications which also require an integrated pollution control licence from the Environmental Protection Agency was raised by Senator Joe Doyle. The Senator will recall that when the Environmental Protection Agency was being established this matter was debated extensively and that this division of responsibility was established in the Bill and accepted by both Houses of the Oireachtas in order to avoid duplication of effort by planning authorities and the Environmental Protection Agency. The licensing system is of relatively recent introduction and no doubt some initial difficulties which may have arisen will be ironed out in time. The Department is actively examining this as part of the review of planning law to which I have referred.

Senator Joe Doyle recommended that An Bord Pleanála meet with the General Council of County Councils and the Association of Municipal Authorities of Ireland.

Mr. J. Doyle: The chairman of An Bord Pleanála himself suggested that.

Mr. Molloy: I understand that both bodies have discussed this and that arrangements have been made to hold that meeting shortly. This will help to create a better understanding by members of local authorities of the work of An Bord Pleanála and the way it seeks to fulfil its statutory obligations. From that meeting will come the greater knowledge and confidence among the public which Senator O'Toole was anxious to achieve.

[81] I must reiterate our absolute satisfaction with the impartiality of the board's decision-making process.

Senator Burke referred to political associations and that it took a long time to arrive at a decision in planning applications. The method of selection of the board ensures that the political associations referred to cannot and have not existed since the new system of appointment was introduced. It was also mentioned that the board is required to give reasons for its decisions and some of those reasons are not as clear as they could be. In last year's annual report the chairman of An Bord Pleanála acknowledged this criticism and undertook that that board would seek to give clearer reasons in the future. This move should be welcomed by all.

Senator Walsh mentioned the question of differentiating between genuine and vexatious appeals. We all value the openness of the Irish planning system in allowing for third party appeals. This is unique in European terms but it imposes a certain discipline on developers and planning authorities. Equally, objectors must recognise the unique position granted to them under Irish planning law and use their rights constructively at all times. We must guard against vexation and mischievous appeals which introduce unnecessary delay to the planning system. Section 14 of the 1992 Act allows the board to dismiss appeals which it considers to be vexatious or without substance or foundation and in 1996, 21 appeals were dismissed by the board for these reasons. This matter will be considered in the major review being undertaken.

Senator Gallagher mentioned the lack of enforcement and I share his concerns. Enforcement will also be carefully considered as part of the planning review. The present laws are complex and not user-friendly and I hope the enforcement provisions in the Act can be simplified when the new legislation is brought forward, arising from the input of the various interests making suggestions for the improvement of our planning system.

It has been pointed out that lack of enforcement relates to a lack of resources at local authority level to inspect developments and take action when that is necessary — that is often used as an excuse or an explanation. If that is one reason local authorities are not more active in this area, I hope the additional resources this Government is providing for local authorities — £125 million for discretionary spending, which will be available in 1999 — will help them to provide better resources for their planning offices. This would lead to a better planning service and more effective enforcement.

Senator Gallagher also mentioned unfinished estates. When he was in this House, Deputy Seán Ryan introduced a Private Members' Bill on that issue and during that debate it was pointed out that planning authorities now impose more stringent conditions on developers, especially in requiring them to submit adequate bonds for [82] their developments and on phasing developments for larger housing estates. The Planning Acts also contain a substantial range of enforcement powers and anyone, including tenants' associations, is entitled to take enforcement actions to ensure a planning permission is complied with.

It was pointed out at the time that while this Government is sympathetic to those changes to the Acts, they would introduce a significant new concept to planning legislation — namely, that a local authority should refuse to grant permission when it is satisfied that permissions would not be fully complied with. This has wide implications which need to be fully considered. This relates to the suggestion that the history of these developers should be taken into account in deciding planning applications. The changes proposed were legally complex and might also have raised constitutional issues; they certainly raised issues in planning and company law. These complex issues would have to be carefully examined in great detail before the suggested changes in the law would be considered. That issue will be examined in the general review of planning legislation.

Senator Coghlan said the developer should not have a free choice in picking the consultant make an environmental impact assessment. This is a wider issue than anything contained in the Bill. However, regardless of who carries out the study, the planning authority and An Bord Pleanála, should it go to the board, have the right to make their own judgment on the assessment and can employ experts to advise them on its merits or otherwise.

I note the Senator's remarks about hyperstores and superstores. His views of the 1982 directive on retail development will be borne in mind during the course of the general review.

Senator Burke said the board did not have a time limit but that is not correct. It has a statutory objective — which it takes seriously, as can be confirmed by those who have met the board — of deciding the appeal within four months. The board currently decides a large proportion of appeals within that time and this Bill will improve matters greatly — that is what it is designed to do. The time taken to decide appeals is 17 weeks, not six or nine months as mentioned by the Senator. I would be interested to know where those figures came from. Few appeals take longer than six months and those usually relate to large, complex cases; 14 appeals were on hand for more than six months at the end of 1997.

The Senator also said that An Bord Pleanála imposed substantial extra costs on local authorities. He quoted the example of Mutton Island but I am not sure what he is referring to — perhaps he could fill me in later. There is a good deal of history to that case, it has been through a number of courts and that is what has held it up.

Mr. Burke: The costs have gone up. I was not specifically referring to Mutton Island but to similar cases.

[83] Mr. Molloy: It is surprising that the Senator raised an issue in my constituency with which I am familiar. Much of the delay in the matter was caused by Ministers in the Government supported by the Senator, which went out of office last July.

Mr. J. Doyle: Another political prod.

Mr. Molloy: It was rather sad that this should have happened but we will not go back over that ground. Happily there has been a change of Government and the issue has been dealt with satisfactorily, efficiently and effectively.

Mr. Burke: The new Government made the decision? I thought it was An Bord Pleanála.

Mr. Gallagher: What about impartiality in the planning process?

Mr. Molloy: I am not trying to be political but the sad fact is that much of the delay was caused by political procrastination, which is the mildest word I could use. I thank Senators for their general welcome for the Bill.

Question put and agreed to.

Agreed to take remaining Stages today.