Lorraine Higgins (Labour)
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I welcome the Minister of State and thank her for taking this matter on the Adjournment. I request that she clarify the legal position on planning conditions otherwise known as enurement clauses which are imposed by some local authorities and have the effect of restricting the sale of a dwelling house for a period of time. A significant number of people in my constituency in places such as Kinvara, Ballindereen, Athenry, Loughrea and Craughwell have had such clauses attached to their planning applications. The clauses specify that applicants must come from the area in which they are seeking permission to build; that use of the proposed house is restricted to the applicant and the applicant's family, heirs, executors and administrators; that persons must be involved in agricultural or related activities; and that the applicants must satisfy a housing need stipulation.

Very often enurement clauses can last for a period of seven or ten years. However, the draconian effect of such clauses can be clearly seen in what Galway County Council did in 2007 when it decided that a 15 year enurement clause would attach to all planning permissions granted in Connemara. While I accept that the purpose of an enurement clause is to enable the planning authority to grant permission for residential developments in controlled areas, these clauses are, in effect, controlling to whom the property owner may sell a property. In the circumstances, we must acknowledge that this is essentially a discriminatory practice. Enurement clauses appear to be in breach of the right to property, as outlined in chapter 2 of the Charter of Fundamental Rights of the European Union, the free movement of people and other relevant EU legal measures.

We must be very careful about breaching people's rights, in particular, their constitutional rights. It is essential that we implement practical national measures in order that citizens can rely on them and be allowed to enjoy the full benefits of their property rights. With this in mind, there must be some flexibility with regard to these clauses. We must be mindful that these are different times from those during the boom when these clauses were first introduced. People have become unemployed and need to move house to follow employment opportunities. Some are in negative equity and seeking to limit their losses. At best, the people concerned are prevented from selling their houses in the wider marketplace and, at worst, these clauses are preventing people from moving on with their lives. This is a very important issue, on which I would appreciate a response regarding the plans the Government may have to address the legal anomalies.

Jan O'Sullivan (Limerick City, Labour)
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I thank the Senator for raising this issue. The sustainable rural housing guidelines for planning authorities which were published in April 2005 are designed to achieve a balance between a good planning framework for rural housing and the local housing needs of those who are part of or have links with local rural communities. The guidelines elaborate on and consolidate the approach on rural housing in the national spatial strategy 2002-20 which, inter alia, promotes sustainable rural settlement as a key component of delivering more balanced regional development.

Section 39 of the Planning and Development Act 2000 provides that a condition attached to a grant of planning permission for a house may specify that the house must be occupied by persons of a particular class or description, that is, an occupancy condition, with provision to that effect to be incorporated in an agreement under section 47 of the Act. The guidelines set out how planning authorities should frame their development plan policies for the different types of rural areas within the development plan area such as rural areas close to large towns and cities or those suffering from population decline. The guidelines make it clear that occupancy conditions are only appropriate in certain cases such as permissions being granted in areas close to the larger cities and towns which are under strong pressure for urban-generated development and permissions being granted to a permanent resident in an area in which there is an over-concentration of holiday or second-home development. The conditions also normally specify that planning authorities can give consent to the occupation of the dwelling by a different person with the same category of need as the applicant.

The approach set out in the sustainable rural housing guidelines for planning authorities on the use of occupancy or residency clauses remains valid. I am satisfied that the guidelines are being implemented effectively and fairly. I will continue to keep them under review in this regard. I will certainly take on board the points raised by the Senator, but it is really about achieving a balance in areas under particular pressure in certain parts of the country. I again thank the Senator for raising the issue.

Lorraine Higgins (Labour)
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I understand the effect of these clauses in that we must strike a balance and address some sensitive planning issues in the countryside, in particular. There is an overriding concern that there has been a clear breach of people's property rights which are inalienable, which is why I have brought the matter before the House. I would appreciate it if some further research could be done on it.

As stated earlier, people have lost their jobs and they wish to seek employment opportunities elsewhere but they are prohibited from selling their properties as a result of inurement clauses being in effect for periods of seven, ten or 15 years. That certainly limits the market. In addition, there are people whose mortgages are in a great deal of distress and who find themselves in the same situation as those others to whom I refer. A slightly anomaly exists because mortgage companies or banking institutions which repossess houses appear to be completely oblivious to any inurement clauses and they seem to have free rein to resell the homes in question. People who are trying to sell their properties of their own volition face a difficulty because of the existence of valid inurement clauses. There appears to be an inequitable application of the law in this regard. I would appreciate it if some further developments were forthcoming in this area and if some of the policies relating to inurement clauses could be reconsidered in light of current circumstances.