Joanna Tuffy (Dublin Mid West, Labour)

I move amendment No. 7:

In page 11, between lines 2 and 3, to insert the following:

7.—Section 9 of the Principal Act is amended—

(a) in subsection (4) by the deletion of "have regard to" and the substitution therefor of "take into account", and

(b) in subsection (5) by the deletion of "substantial" and the substitution therefor of "material".".

We are dealing with section 9 of the principal Act and how it refers to "have regard to" in one subsection and in another section it has the term "substantial". With "have regard to" we propose to substitute "take into account" and with "substantial" we propose to substitute "material". I am moving the amendment on foot of representations made by one of the Minister of State's former colleagues, the former Deputy Roger Garland. He brought to my attention a court case, McEvoy v. Meath County Council, where the wording "shall have regard to" was considered.

He advises me that the High Court spent approximately two weeks deciding what the phrase meant and in finding for the defendant it stated the council, having considered the guidelines, was entitled to ignore most suggestions. Effectively, the phrase as it stands has very little meaning.

I am not hung up on our amendment but it does raise the issue. The original section 9 in the principal Act uses different phrases in different subsections. In section 9 of the 2000 principal Act phrases used include "shall have regard to" in subsection (4), "shall take into account" in subsection (5) and "shall, in so far as is practicable, be consistent with" in subsection (6). It is a valid issue as to how much weight "shall have regard to" carries. We cannot stop people from voting the way they want and we cannot legislate for people making their own mind up in a democracy, yet bad decisions have been made and we should address the issue.

The Labour Party agrees in principle that the issue should be considered but we want to protect local democracy. Any action should not interfere with local democracy and there may be other ways to proceed. We have had a construction bubble, bad planning decisions, excessive zonings, etc., so there should have been a Green Paper and White Paper in the planning area. We must ensure local democracy brings about the best planning.

The Government and the Green Party in particular is trying to fix these problems but their actions may not work and may interfere with local democracy. If the Labour Party was in Government, we would consider the possibility of appeal for rezoning decisions to An Bord Pleanála. That may be a solution to bad planning decisions. For example, a strategic development zone planning scheme could be appealed, with either developers or the public making the appeal.

There is a need to address the problem of councils making the wrong decisions but, at the same time, we either have democracy or we do not. We must allow the people to make up their own minds. There is an idea that a magic phrase can be used to make councillors think in a particular way but that is a nonsense. Democracy means a person can think one way or another and make a choice of "Yes" or "No". We cannot get into people's brains and make them decide in a particular way.

I am raising the point but I do not necessarily think there is a set of words that will do the trick. On planning in general we should consider the issues more deeply than is evident in this Bill.

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