Michael McDowell (Independent) | Oireachtas source

I have problems with section 11 which I think the Minister of State should take on board and reconsider this provision. I say that because we are on Committee Stage. There may be Report Stage and the whole Bill has to go back to the Dáil. There is time and no urgency to say this section cannot be looked at. This section reads:

A relevant declaration shall be conclusive evidence of the matters stated therein in ... proceedings brought by an enforcement authority ... against a person who requested the relevant declaration under section 10, unless ... it is proved that ... [he] knowingly provided false or misleading information to the planning authority or the Commission ... [and that] the planning authority or the Commission, as the case may be, would not have made the ... [decision] had it been aware at the time ... that the information was ... misleading, or [second, that] it is proved that ... the person withheld information from the planning authority or the Commission, as the case may be, that he or she knew to be material to the question as to whether or not the act, operation or change in use concerned was development or exempted development, and ... the planning authority ... would not have made the ... [decision if that] information [had] not been ... withheld.

Just think about this for a second. That is all very well, but you have to look at what follows it. The relevant declaration is the declaration that a change of use is not development or is exempted development. Relevant proceedings are proceedings for an offence under sections 341, 344 or 345. That is fine, but supposing somebody gets a declaration having withheld information which it is later argued would have tipped the decision the other way, and a bona fide purchaser for value buys the development with the benefit of that declaration not knowing that the person who obtained the declaration had withheld information which might have tipped the issue. The purchaser had no reason to believe it and paid good money to buy the farm, quarry, building or whatever in good faith but is then told that what happens is the relevant declaration shall not be admissible in any proceedings other than a prosecution against the person who originally withheld the information. What about somebody who never withheld any information and bought a business, believing it to be bona fide, who understood, when his solicitors asked for evidence, that it was in conformity with the planning Acts, which evidence was produced, who paid good money for that business, and who then finds himself or herself in the situation where no prosecution is brought against the original person but he or she is now faced with a planning injunction or enforcement notice to say the whole thing is void, the declaration is void and he or she must close down the business immediately? That is a serious thing to do to somebody who has paid good money in good faith to buy a business with the benefit of such a declaration. I do not see a way out of this.

Section 12, which we are not yet discussing, states that this applies retrospectively. One of these declarations, subject to this right to revoke it, applies to declarations that have already been granted before we pass this Bill. Somebody afterwards is then told that it is all void, because the guy who sold them the business withheld information and the planning authority would not have made that decision. Some crowd, I do not know who - maybe some concerned locals, An Taisce or somebody else - says it should never have been given to that person's predecessor in title and the person must therefore discontinue that business.

I know we are coming up to 9.30 p.m., so for brevity's sake, I believe the Minister of State should consider this issue. It is fundamentally unfair to say to an innocent person that they can have their business or property wiped out because the guy who got a declaration on which they relied in good faith and for which they paid him good money withheld some information they had no idea he had withheld.

That is all I have got to say. I am against this section because I do not think it provides sufficient safeguards for people who, in good faith and without notice of any defect in a declaration, have laid out good money and capital to buy property and who effectively have the rug pulled from under them simply because the predecessor in title withheld information from the planning authority in circumstances where the purchaser had no idea that had happened. I am against this section, and I ask the Minister of State to take on board what I am saying and, between now and Report Stage, to do something to protect innocent people from the revocation of one of these declarations.