Michael McDowell (Independent) | Oireachtas source

I just want to point out that section 11(1) provides that a declaration that something is or is not an unauthorised user is conclusive of the matter stated therein in proceedings brought by an enforcement authority only against the person who requested the relevant declaration. There are two exceptions to that. One is where that person knowingly misled the planning authority, or the commission, which is a renamed An Bord Pleanála, by misleading it that the misleading information would have meant that the declaration would not be made. The second exception is if the person withheld information from the planning authority, or the commission, that the person knew to be material to the question as to whether or not there was a development or exempted development and the planning authority would, had it been aware of the information that was withheld, not have decided to issue the declaration.

Section 11(2), and this is very important, states that "a relevant declaration shall not be admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which the relevant declaration was made", subject to subsection (1). Nobody can rely on it in any proceeding and cannot produce it in any proceeding other than a subsection (1) situation where there is a prosecution against the person who obtained the declaration, or who requested it. Therefore, a third party who has bought a business, enterprise or property from a person who obtained such a declaration is not entitled to produce the certificate in court. It is not admissible. That is an extraordinary situation that a person can buy a business that a declaration has issued in the past saying it is exempt development or it is not development at all. This would apply to something like an intensification of user situation or, say, an extension of a quarry. The person would have bought it and the vendor who sold them the factory, quarry, land, building or whatever else it is would have produced, in order to show compliance with the planning law, a certificate of exemption issued by the local authority or by the commission and that the person cannot produce it in court if someone brings a proceeding against them, claiming they are carrying on an authorised use of land or that the use constitutes a development when it was stated not to do. That is what worries me about this.

The ban on its admissibility is in any proceedings relating to the act, the operation or change in use. It refers to relevant proceedings as defined in subsection (3). Relevant declaration applies in that respect as well. Proceedings under sections 341, 344 or 345 are covered in respect of the person who applied for the relevant declaration but the provisions of subsection (1) do not apply in proceedings against anybody else. Is that remotely fair?

It is in that context that I draw the House’s attention to section 12. Section 12(1) states that a similar provision of the Act of 2000 shall continue and have effect as if made under section 10 but then the next subsection is really worrying. It states, notwithstanding the repeal of that section of the Act of 2000, "The Act of 2000 shall, subject to Part 17, continue to apply and have effect in relation to a request, application or appeal under that section made before that repeal."

McDowell, Michael.

What we are introducing here, after this Bill comes into operation, is a capacity to, effectively, deal with a situation that happened prior to the enactment of this legislation. It is a deeply worrying provision because no protection whatsoever is made for innocent third parties who have acted to their prejudice by purchasing business, land, operations or whatever in good faith on foot of a declaration that is later challenged by any third party or a local authority on the grounds that it was obtained by withholding information or giving misleading information.

I am particularly concerned with a situation concerning withholding information. Somebody could easily just not mention something to a local authority in their application, conceal it in that way and get a declaration. It would appear, on the face of it, to be entirely valid to a bona fide purchaser for value, without notice, of any withholding of any relevant information to mean that the current activity carried on at that place was entirely lawful.

The problem with section 11(2) is that it states a relevant declaration will not be admissible in any court if the purchaser is subsequently challenged as to whether a development was unauthorised or not. I do not see why this subsection is so wide in its application. I do not see why somebody who acted entirely innocently, and totally lawfully as far as he or she was concerned, and took every step to examine the certificate which stated the activity he or she was buying into was exempt development should suddenly be told that he or she cannot produce the certificate at all in any court to defend himself or herself. This is the point I am making.

The Minister of State seemed to nod sympathetically last night when I mentioned that he should deal with this on Report Stage, but I am really worried about it in its present form now because things get nodded through in a guillotine situation and then there is no recourse on the part of the Members of this House if there is no response at a later stage. I am opposed to this section.