Dick Roche (Wicklow, Fianna Fail)

I am pleased to speak to the House on this Bill and on the important issue of the completion of housing estates. I have already extended to Deputy Gilmore my personal sympathy with the objectives of the Bill.

The primary responsibility to build good developments and finish them to a high standard rests with developers. Builders are building and selling record numbers of houses — nearly 80,000 last year alone. They are selling a product, the most important that people will possess, and it is incumbent on them to make that product the best it can be. As in every walk of life, builders and developers range in terms of performance. Some are excellent while others fall far short of excellence, and this Bill focuses on the latter.

People buying their homes are making too important a purchase to leave it up to the industry alone to set standards. Over the past few years this Government has brought forward measures that will ensure that people do not have to put up with the misery of living in a half finished estate. We are willing to consider any reasonable measure that will effect further improvements, including this Bill.

An important aspect of the measures which we have introduced is that they do not put the burden on individual house purchasers to go to court to ensure that estates are finished. Instead, they ensure that house purchasers can call upon public authorities to help them when they need help. I want to touch on some of these measures before discussing in detail the Bill proposed by Deputy Gilmore. We have widened and strengthened the powers of local authorities in dealing with unfinished estates. Local authorities were expressly given powers to attach specific conditions about finishing estates. Developers can also be required to ensure that estates are managed or maintained until they are taken in charge.

Of course, attaching conditions will not help unless they are enforced. Here too, the Government has moved to give local authorities a full range of powers to deliver completion of housing estates. There was a considerable strengthening of enforcement provisions in the planning Act 2000. A major concern of the review of the whole planning code which took place in the preparation of the Planning and Development Act 2000 was to promote a culture of compliance with planning law, backed by a considerably strengthened enforcement regime. The introduction of a culture of enforcement is critical to ensure that the planning control system works properly and for the benefit of the whole community.

The changes which were introduced to the enforcement regime in the 2000 Act simplify existing statutory procedures and strengthen the powers available to planning authorities. These changes included fines that were greatly increased, with a maximum penalty on conviction on indictment of €12.7 million and two years imprisonment. Planning authorities now charge for the cost of taking enforcement action and are entitled to retain fines imposed by courts for planning offences to help finance more active planning control. The period within which enforcement action may be taken has been extended from five to seven years. An application for retention, or even a grant of retention permission, is no longer a valid defence to enforcement action and fees for an application for retention permission were increased. If people attempt to hide behind a corporate identity, this can be prevented.

The Government also introduced the provision on which this Bill is based. In law, planning authorities can refuse to grant planning permission, subject to the consent of the High Court, to any developer who has seriously failed to comply with a previous permission. I will go into more depth on the implications of the proposed changes to that provision shortly. Some planning authorities have responded to these provisions and have begun to resource their enforcement sectors and take a proactive approach to this area. That was exactly the result the 2000 Act was aimed at and I welcome that development. I want to see better performance in this area across the country.

Apart from enforcement of planning control in general, I wish to say something about the specific measures put in place by the Government to address the matter of the completion of housing estates. The 2000 Act contained a significant new policy change on the responsibility of local authorities to take in charge estates. The way in which this policy has been introduced has given substantial incentive to developers to finish estates properly.

Where an estate has been completed to the satisfaction of the planning authority, it must, if requested to do so by the developer or by the majority of the qualified electors who are owners or occupiers of the houses involved, initiate the procedures to take the estate in charge. This gives an incentive to the developer to finish the estate properly and without undue delay. The decision on whether to take the estate in charge is ultimately one for the elected members, an important responsibility for them.

Where estates have not been completed to the satisfaction of the planning authority and the authority has not taken enforcement proceedings within seven years, the Act also provides that the planning authority must, if requested to do so by the majority of the residents, take the estate in charge. The section also provides that the provision in section 11 of the Roads Act requiring the authority to consider the financial implications of taking the estate in charge can be disregarded. This provision also clearly incentivises planning authorities to ensure that estates are fully completed by developers in compliance with their planning permission. Where authorities fail to do so, they may face the problem of financing completion of the estate. Planning authorities can of course seek bonds from developers that can be offset against these costs but it is still a major incentive for local authorities to move to address failures by developers before they develop into major problems. This provision applies to all estates that have received planning permission under the modem planning code. As I said, I have sympathy for the aims of the Bill but there are issues that must be teased out on Committee Stage.

A significant new enforcement in the planning Act 2000 was the provision, contained in section 35, to permit authorities to refuse planning permission to an applicant who is not in substantial compliance with a previous permission. Section 35 of the Act provides that where a planning authority is satisfied that a person or company to whom the section applies is not in substantial compliance with a previous permission, it may form the opinion that there is a real and substantial risk that the development would not be completed in accordance with such permission if granted and that the planning permission should not, accordingly, be granted to the applicant. Where the planning authority forms this opinion it must apply to the High Court for an authorisation to refuse planning permission for a new development. This is the core issue in Deputy Gilmore's Bill.

Obviously, we were concerned to ensure that developers would not try to avoid this provision by setting up as a new company. Section 35 of the Act applies to any related company or company under the same control which carried out the previous non-compliant development. This provision obviously does not solve all the problems of unfinished estates but it is a useful additional weapon in the planning authority's armoury where it is trying to come to grips with someone who persistently fails to finish developments.

Section 2 of the Bill would amend the above provisions by providing that where the planning authority forms the opinion that there is a substantial risk of non-compliance with a planning permission and that the planning permission should not, accordingly, be granted, it must serve a notice on the applicant of its decision to refuse permission. The notice will take effect within 21 days unless the applicant applies to the High Court for an order setting aside the notice.

The effect of this section is to provide that the planning authority may refuse permission, subject to the applicant's right of appeal to the High Court. This reverses the current position whereby the planning authority must apply to the High Court. I am sympathetic to the attempt in this Bill to place the onus on applicants, rather than on the planning authority, to apply to the High Court in the case of a refusal of planning permission because of a substantial risk of non-compliance. This was the effect of the provision included in the original draft of the Planning and Development Act 2000 when it was still in Bill form. However, the Attorney General's office identified possible difficulties with this provision and, following consultation with that office, the provision was modified to the current section 35. I have already mentioned to Deputy Gilmore my personal views on the Bill but it is important to give some further and deeper consideration to these issues.

Giving a planning authority power to refuse planning permission based on previous non-compliance could possibly be construed as an attack on constitutionally protected private property and an attack on the right to earn a living. After all, we are talking about refusing someone planning permission, who may never have had an enforcement action taken against them. While I am sympathetic to this idea, it needs some further thought. There may also be an issue as to whether this procedure could constitute the administration of justice by a planning authority, which would be unconstitutional. I certainly will have to obtain further legal advice on this matter before going further with the Bill and I suggest that Deputy Gilmore does so, although he has already taken legal advice on these issues.

I am not entirely convinced that the proposed amendment will effectively address the matter of unfinished estates. The concern of residents in housing estates is that those estates be finished in accordance with the terms of the planning permission and the 2000 Act contains many provisions to ensure that this will happen. We need to be looking at how to make planning authorities more effective in using the powers they already have. That will be a major focus of mine over the coming months.

I have even more concerns in relation to section 3 of the Bill, which purports to give a right of action to any person who has acquired an interest in a development and who suffers loss or damage due to its non-completion in accordance with the planning permission, against the person who was granted planning permission for the development, and all other persons involved in the direction, management or funding of the development.

The person who obtained planning permission could subsequently sell the land to which the permission attaches to another person. In such a case it would obviously not be right that the person who obtained the permission would owe any duty of care in relation to the completion of the development, provided this device was not used as a way of avoiding responsibility. I am advised also that there are doubts about the inclusion of the words, "all other persons involved in the direction, management, or funding of the development", as these would appear to include not only the developer but any company that provides management and financing for the development, most notably banks which may provide loans. I do not think this was Deputy Gilmore's intention but it could be an unintended effect of the current wording.

Also, I am not entirely convinced that the amendment would have major benefits for residents in unfinished housing estates. Such residents would wish to see the current provisions in regard to the completion of estates being fully utilised by planning authorities in the first instance, rather than to obtain the right to take court actions themselves. That process can be stressful, expensive and time consuming.

Notwithstanding these reservations I am not opposing the Bill. Everyone in the House is sympathetic to its aims. The major responsibility for completing estates should primarily rest on the builder and the building industry needs to promote the highest standards for its members when completing new estates. Many builders build good estates and behave honourably, but some, unfortunately, do not. Local authorities need to be equipped with a range of mechanisms to ensure the highest standards when completing new estates. They need to be resourced to do so, and their performance needs to be measured so that all will achieve a high standard. This is one of the areas I am looking at specifically. I do not believe the primary responsibility should be laid on individual house purchasers to get estates finished and, to be fair, I do not think that is Deputy Gilmore's intention either.

The aims of the Bill may well be noble but good intentions are not enough in themselves. Before putting any draft statute through the Oireachtas it is imperative that the Bill be constitutional in every respect and we all accept that view. While I have no question whatsoever as to the good intentions of the Bill I advise the Opposition, and in particular Deputy Gilmore, to give some further consideration to the implications of the proposals. I intend to consult the Attorney General on the issues it contains due to the significant changes that will be required in current law.

In due course, however, we can look at all of these issues on Committee Stage and this could well be a case where the House bringing all its talents together could address a scourge that has been with us for far too long. I congratulate Deputy Gilmore on tabling the Bill. He is dealing with an area which is close and dear to my heart, that of the proper completion of housing estates.

As Deputy McManus said both she and I represent a constituency where in the past we have had more than our fair share of examples of bad practice by builders and developers. The statutory changes introduced in the Planning and Development Act 2000 were intended to move in the same direction as this Bill. Significant additional arms have been given to local authorities to improve the position. I am sympathetic and willing to look at any suggestion to introduce a further improvement.

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