Many of the provisions in the Bill are non-contentious and merely repeat and consolidate the provisions of the earlier legislation, but there are a number of radical new provisions. The main areas of change are:

• There are significant provisions dealing with development plans, which will have a six-year term and will be placed on a statutory footing.
• There will be mandatory environmental protection objectives in development plans and environmental assessment of development plans. And planning authorities and An Bord Pleanala can refuse to grant permission on 'environmental grounds'.
• Measures will be introduced to streamline the planning process, with time scales and deadlines shortened in many cases.
• It is proposed to strengthen the provisions dealing with outline permission by providing that any matter that had been decided in the grant of the outline permission cannot subsequently be amended or refused at full permission stage.
• Local authorities will be obliged to follow up genuine complaints about breaches in the planning control within a given time frame and will be able to refuse planning permission to any developer who has seriously failed to comply with a previous permission.
• The right of appeal to An Bord Pleanala is to be restricted to the applicant and any person who made a submission in writing to the planning authority on payment of the appropriate fee. This is designed to prevent 'ambushes' by objectors late on in the planning process.
• The time frame for appeals to An Bord Pleanala has been reduced and the Bord is given power to dismiss appeals that it believes were made solely to delay the planning process.
• Each local authority will have to draw up a housing strategy to provide for the existing and future housing needs of its area. Up to 20% of the land to be used for residential development shall be used for social and affordable housing.
• The planning authority may attach a condition to a planning permission requiring a developer to enter into an agreement to transfer land to the authority, but compensation will only be awarded on the current use value of the land rather than the development value.
• There will be a substantial increase in fines for breaches of planning law and for unauthorised structures. Action can be taken up to seven years after an unauthorised development compared with five years at present.
• The Government can designate sites as Strategic Development Zones (SDZs) which are considered to be of significant importance to the national economy and can be offered to internationally mobile comp-anies. Once individual applications comply with the 'planning scheme', they will obtain permission in what is essentially a fast-tracking process and no appeal would be allowed.
• Speedier procedures for the confirmation of compulsory purchase orders will be introduced and the time limits for these reduced.
• A new system of licensing by local authorities will be introduced for outdoor events such as pop concerts, removing them from the planning system.

The Bill attempts to address many of the shortcomings in the current planning process and introduces radical changes to the planning regime. Part V of the Bill, which deals with housing supply, is easily the most controversial area and will probably be subjected to a constitutional challenge as an infringement of property rights.

For further information please contact the Property Department.

The Companies (Amendment) (No 2) Act, 1999 introduced a significant number of changes into Irish company law, though some of these have not yet been brought into force. These changes include:

• Any company to be incorporated in Ireland must carry on an activity here.
• A requirement that every company has a director who is resident in this country.
• An exemption from the requirement for certain private limited companies to have audited accounts.
• The introduction of a stricter regime in relation to the striking-off of companies from the Register of Companies.
• Amendments to the law of examinership.

Companies carrying on activities in Ireland

Under section 42 of the Act, a company shall not be formed and registered under the Companies Acts, 1963 to 1999 unless it appears to the Register of Companies that the company, when registered, will carry on an activity (mentioned in its memorandum of association) in this State. This is designed to prevent the use of Irish-registered companies for exclusively foreign activities without any connection to this country and it is intended to kill the concept of shelf companies. This section has not yet come into force.

Resident director

Under section 43, every company will now be required to maintain an Irish-resident director. This will provide a 'mark' in the State for the purposes of ensuring compliance with statutory requirements. This provision will apply to existing companies within 12 months after the starting date of this section. This requirement to have a resident director shall not apply to a company if it holds a £20,000 bond or if the Revenue Commissioners grant a certificate exempting it from the requirement. The number of companies of which a person may be a director is limited to 25. This particular section has not yet been brought into force.

Audit requirement

Most small private limited companies which comply with the conditions set out in the Act are entitled to avail of an exemption from the statutory audit requirement. The principal conditions are as follows:

• The turnover of the company must not exceed £250,000.
• The balance sheet total must not exceed £1,500,000.
• The number of people employed does not exceed 50.
• The company is not a bank or insurance company.
• The company is not part of a group of companies.
• The company is up to date with its filing requirements.
• It is not one of a list of companies specified by the Act.

The exemption is not retrospective and it will only apply to a company with a financial year that begins on or after the starting date of the section. If the directors are satisfied that the conditions set out in the Act are met, and the board of the company resolves to avail itself of this exemption, then the company shall also be exempt from the requirements to appoint an auditor. The majority of these provisions came into force in February.

Strike-off of companies

There are a number of new provisions in relation to the strike-off of companies, including:

• Failure to file an annual return for one year will be enough for the Register of Companies to initiate a strike-off procedure.
• The liability of every director, officer and member of the company shall continue and may be enforced as if the company has not been dissolved.
• More creditor-friendly provi-sions are provided for, including the possibility of a court order declaring an officer liable for the whole or part of the debtor liability.
• The court may order the officers to file annual returns and a section 882 statement in a creditor's application.

These provisions were brought into force on 23 March, 2000

Examinership

The Act makes a number of amendments to the law of examinership. The principal amendment is that it will be necessary to satisfy the court that there is a 'reasonable prospect of survival' (not just a 'prospect of survival') in order to appoint an examiner to a company. These amendments came into effect in February.

For further information please contact Emmet Scully.

Computer misuse is a growing problem these days and results from our increasing reliance on information technology. The recent and well-publicised Melissa and Papa viruses highlighted the dangers posed by computer misuse and the damage that it can cause. In Ireland, the Criminal Damage Act, 1991 was introduced to combat such threats.

The Act creates several criminal offences in relation to computers, though nowhere in the Act is 'computer' defined - an approach also adopted in the corresponding UK legislation. 'Data' is defined as 'information in a form in which it can be accessed by means of a computer and includes a program'.

Damage to data is defined as including the addition, alteration, corruption, erasure or movement of data or any act that contributes to causing any of these. It also covers acts of omission causing such damage.

Section 2(1) of the Act makes it an offence for anyone to damage property belonging to another or to be reckless as to whether such property would be damaged. It is possible that computer hackers might claim that any damage they cause is unintentional, but it is still likely that their actions would be viewed as reckless for entering a computer system without consent. This arguably comes within the meaning of 'reckless' in the Act.

Section 5 prohibits the operation of a computer, without lawful excuse, with the intent to access data - even if no data is actually accessed. Viruses also come under this section. While it might be difficult to prove that a virus in a computer system caused any real damage, it could also be argued that the mere introduction of a virus is an offence since the Act defines 'damage' as including 'addition to' data.

For further information please contact Eoin Cunneen.

Unfair dismissals legislation has been on the statute books for 23 years, but nearly two out of three employers are still dismissing staff unfairly. The most common reason for finding that a dismissal was unfair is that the employer did not follow fair procedures.

In reaching a decision to dismiss an employee, the employer becomes the judge, jury and executioner. Not surprisingly, then, the law requires the employer to act in a 'fair and reasonable manner, affording the employee natural justice'. If an employee initiates a claim for unfair dismissal, the onus is on the employer to prove, on the balance of probabilities, that the decision to dismiss was:

i) Valid in law

ii) Proportionate to the mis-conduct of the employee, and

iii) That fair procedures were followed, and that there was sufficient evidence justifying the dismissal.

Dismissals procedure

A fair dismissals procedure will provide for a series of progressive steps.

Verbal warning. There is no particular format set out for a warning, but it should be clear and unequivocal. The employee is fully advised of the complaint and told that if an infraction occurs again, within a specified period, a written warning or other disciplinary action will follow. The verbal warning should be recorded in the employee's personnel file.

Written warning. The employee should be told that the conduct is not acceptable and that if an infraction occurs again, within a specified period, a second written warning or more severe disciplinary action will follow.

Final written warning. This letter should refer to previous infractions and point out that further offences will lead to dismissal.

Dismissal. The letter of dismissal should refer to all previous offences and to the employer's investigation, or to the reasonable opportunities afforded to the employee to correct his behaviour prior to the dismissal. When deciding to discipline or dismiss, the employer must take into account the following principles:

• Employees must be allowed to state their case. An accused employee must be given the opportunity and means to defend himself. Therefore, an accused employee must be fully informed of all allegations made against him and given the opportunity to examine those making the allegations and to refute such allegations.
• Employees have the right to be represented at each stage of the disciplinary procedures, except possibly where oral warnings are concerned, and the employee should be advised of this right.
• Where the case against an employee can only be inferred, this may require the employer to conduct a detailed investigation and the employee should be put on proof of all his statements.
• With the exception of cases of gross misconduct, the employer should be reasonable in the disciplinary procedures he adopts. This may oblige the employer to give the employee reasonable opportunities to rectify his actions, or could involve other appropriate disciplinary action short of dismissal.
• Disciplinary procedures should be in writing and presented in a format and language which is easily understood. Copies of the procedures should be given to all employees, and disciplinary measures should be applied in a consistent manner to all employees.

It is crucial that the employer should be seen to have an open mind until he has heard all of the evidence and explanations for the alleged wrongdoing. Therefore, anything that is said to the employee or recorded in writing should not show pre-judgment or predetermination of the case.

A misphrased word at the initial stages of disciplinary procedures might lead the Employment Appeals Tribunal (EAT) to believe that the employer had already made up his mind before considering all of the evidence. If this occurs, the focus of the EAT or Labour Court can change from the wrongdoing of the employee to the mistake or flaw in the employer's decision-making process.

For further information please contact Michael Kavanagh.

It is not uncommon for there to be some confusion about the protection given by various intellectual property rights. This article highlights the fundamental characteristics of two such rights - trade marks and patents.

A trade mark is a sign that can be represented graphically which distinguishes the goods or services of one business from those of another. It should not describe the goods or services to which it relates.

A trade mark may be registered either nationally or as a Community trade mark. While there are no pre-application requirements, it is imperative to carry out a search in the relevant trade mark registers to check for conflicting trade marks. You should register your mark in all the classes of goods or services that are offered under that trade mark, either now or anticipated in the future. A trade mark should be registered as soon as possible.

A patent is a monopoly granted to protect the exploitation of an invention for a term of 20 years, though you can apply for a short-term patent of ten years. An invention is patentable if it has an industrial application, is new and involves an inventive step (there are some exceptions to this general rule). You can apply for a national or European patent. If you believe you may be able to patent an invention, you should not reveal, or disclose information about, your invention to anyone and should immediately seek legal advice.

For further information please contact Eoin Cunneen.

In January, the London Stock Exchange published Amendment 14 to its Listing Rules. As the Irish Stock Exchange has adopted the London Listing Rules, the amendments apply equally to companies listed on the Irish and London stock exchanges.

One of the principal changes is designed to cater for high-growth companies with an innovative product or service by allowing them to obtain a listing at an early stage in their development. This is part of the London Stock Exchange's 'techmark' initiative, aimed at meeting the unique requirements of technology companies, including those already listed and those considering a flotation. This market went live last November, with over 180 companies from across the main market. It is designed to give a profile to innovative and high tech companies and to make them more easily accessible to investors who might otherwise seek to concentrate on companies with a more traditional listing.

Amendment 14 introduces a new concessionary route to listing for innovative high-growth-potential companies without the normal three-year trading record. In order to take advantage of this, such companies must fulfil certain requirements:

• The company must have a minimum stg£50 million market capitalisation at the time of listing
• It must demonstrate its ability to attract funds from sophisticated investors, and
• It is obliged to provide quarterly financial reports
• It is obliged to sell on flotation at least stg£20 million worth of either new or existing shares.

Amendment 14 has also introduced several other changes to the Listing Rules, some of which are described below.

Directors

Under the Model Code, a director is prohibited from dealing in any securities of listed companies at any time when he is in possession of unpublished price-sensitive infor-mation. Amendment 14 has made a number of changes to the Model Code, including:

a) The payment of directors' remuneration in shares has been exempted from the code in certain circumstances

b) The acquisition of qualification shares by directors is allowed if the final date for acquiring such shares falls within the prohibited period and the director could not reasonably have been expected to acquire the shares earlier.

Financial information

a) Preliminary Statement of Annual Results: this statement must be notified to the Company Announcements Office within 120 days of the end of the financial period to which it relates. It must include a balance sheet, profit and loss account and cash flow statement.

b) Half-Yearly Reports: these must be notified to the Company Announcements Office within 90 days of the end of the period to which they relate and must contain a balance sheet, profit and loss account and cash flow statement.

For further information please contact Emmet Scully.