Michael Finneran (Roscommon-South Leitrim, Fianna Fail)

Section 20 amends section 35 of the Planning and Development Act 2000 which deals with the grounds on which planning permission can be refused on the basis of past performance of a developer.

Amendment No. 47 concerns the insertion of the word "connected". The current provision allows for a planning authority, when deciding whether it is appropriate that permission should be refused on the basis of past performance of a developer, to have regard to any information available to it concerning the development being carried out by a person to whom the section applies, pursuant to permission granted to the applicant or to any other person. To insert the word "connected" would mean the planning authority could only have regard to the development being carried out pursuant to the permission granted to the applicant or the person connected to the applicant. It would mean the planning authority could not have regard to the development carried out pursuant to the permission granted to another person other than a connected person. The planning authority could not, therefore, have regard to the development carried out by the applicant pursuant to a permission granted to a person for whom the applicant had bought the land or the premises concerned unless this person was connected to the applicant. I am sure it was not the Senator's intention to limit the scope of the provision in this way. Accordingly, I cannot accept the amendment.

Amendment No. 48 concerns the insertion of the words "body corporate". I recognise the intent of Senator Coffey in regard to this amendment and while I am willing to reconsider it, I must first take legal advice on the matter.

Amendment No. 49 concerns the deletion of the word "any" from the provision that a planning authority may, in deciding whether it is appropriate that permission should be refused on the basis of past performance of a developer, have regard to any information concerning a conviction for an offence. I am unclear as to what would be the effect of the deletion of the word "any" but I am willing to have the matter examined from a legal perspective and come back to the House on it.

Amendment No. 50 concerns the deletion of the word "substantial" from the provision which allows a planning authority to refuse permission, subject to certain conditions, including where a developer has in the past carried out a "substantial unauthorised development". I am not in favour of removing the word "substantial". It must be borne in mind that the term "unauthorised development" comprises any development, regardless of how minor, which required permission and did not obtain it such as a garden wall which is slightly higher than two metres. "Unauthorised development" also includes any development which deviated from the planning permission, even in a minor way owing to an error on the part of the recipient of the permission. It is reasonable that consideration of refusal of permission for past unauthorised development be confined to cases of "substantial unauthorised development".

Amendment No. 51 proposes to insert a further ground for refusal of permission, namely, the developer has failed to complete a development. Under the Planning and Development Act 2000, planning permission may be refused to a developer who has substantially failed to comply with a previous permission. It is generally a condition of every planning permission that a development be completed in accordance with the plans and drawings submitted by the applicant. Such a condition and all other conditions of permission must be complied with, including conditions in regard to the standard of footpaths, public lighting and so on which the developer is obliged to meet. Accordingly, the proposed amendment is not necessary. Where a development is left substantially unfinished, this would be substantial non-compliance with permission by a developer which is already a grounds for refusal of permission.

The provisions in regard to the refusal of permission for past non-compliance permit refusal only where the planning authority forms the opinion that because of past non-compliance there is a real and substantial risk that a future planning permission would not be complied with. We may now be faced with the situation where developers fail to complete developments not because of a disregard of planning law but because they are bankrupt. It is questionable whether such non-completion would entitle a planning authority to form the opinion in some future, I hope entirely changed, circumstances that such developers are unlikely to comply with future permissions.

I am willing to re-examine amendment No. 52 but will also have to take legal advice on the matter.