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COMMITTEE OF PUBLIC ACCOUNTS debate -
Thursday, 14 Oct 2004

2003 Annual Report of the Comptroller and Auditor General and Appropriation Accounts.

Vote 30 — Communications, Marine and Natural Resources.

Chapter 10.1 — Development of Marinas.

Mr. B. Tuohy (Secretary General, Department of Communications, Marine and Natural Resources) called and examined.

We are in public session dealing with the annual report of the Comptroller and Auditor General and the appropriation accounts of the Department of Communications, Marine and Natural Resources, Vote 30, chapter 10.1 regarding the development of marinas.

Witnesses should be aware that they do not enjoy absolute privilege and should be apprised as follows. Witnesses' attention is drawn to the fact that as and from 2 August 1998, section 10 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 grants certain rights to persons who are identified in the course of the committee's proceedings. These rights include: the right to give evidence, the right to produce or send documents to the committee, the right to appear before the committee either in person or through a representative, the right to make a written and oral submission and the right to request the committee to direct the attendance of witnesses and the production of documents and the right to cross-examine witnesses.

For the most part, these rights may only be exercised with the consent of the committee. Persons being invited before the committee are made aware of these rights and any person identified in the course of proceedings who is not present may have to be made aware of these rights and provided with a transcript of the relevant part of the committee's proceedings, if the committee considers it appropriate in the interests of justice. Notwithstanding this provision in legislation, I should remind members of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official either by name or in such as way as to make him or her identifiable. Members are also reminded of the provisions in Standing Order 156 that the committee shall also refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policies.

We have before us the Secretary General of the Department of Communications, Marine and Natural Resources, Mr. Brendan Tuohy. I invite Mr. Tuohy to introduce his officials.

Mr. Brendan Tuohy

Thank you, Mr. Chairman. With me are Mr. Michael Guilfoyle, assistant secretary, Ms Kilda Taylor, assistant principal, inland fisheries; and Mr. George O'Doherty and Mr. Frank Sheridan from the inland fisheries division. Later on, if the Chairman wishes to cover other areas, I will introduce other officials.

I invite the officials of the Department of Finance to introduce themselves.

Mr. Paul Byrne

I am a principal officer in the public expenditure division.

Mr. David Hurley

I am a principal officer dealing with the administrative budget of the Department.

I invite Mr. Fergus Glavey to introduce chapter 10.1 of the Vote.

Mr. Fergus Glavey

Paragraph 10.1 of the report of the Comptroller and Auditor General reads:

10.1 Development of Marinas

Funding Announcement

Funding of €5.72m for the provision of marinas, at Kenmare (€0.75m), Caherciveen (€2.54m), Roundstone (€1.16m) and Rosses Point (€1.27m), was announced as a Budget Day adjustment in December 2000. This funding was to be in addition to the €25m provided for marine tourism under the National Development Plan (NDP) 2000-2006. The Minister for Communications, Marine and Natural Resources (the Minister) directed that the projects

be progressed outside the project selection and decision making procedures provided for in the NDP Programme Complement for Marine Tourism and Leisure, because the latter had not commenced

be assessed by the Department of Communications, Marine and Natural Resources (the Department)in accordance with objective criteria laid down in the above-mentioned Programme Complement, and

be treated as priorities.

The National Development Plan (NDP)

At the time of the funding announcement, the relevant grant scheme under the NDP Programme Complement for Marine Tourism and Leisure had not yet been introduced. The scheme did not come into operation until February 2002. It was suspended in December 2002, without any payments having been made.

The objective criteria governing projects of this nature outlined by the Department in the draft scheme were as follows:

Long-term viability or value of project

Value for money of project

Tourism value (numbers, seasonality, spread of product)

Compatibility with protection of environment/heritage

Impact on quality of resources (including water quality)

Contribution to rural development

Contribution to community development

Impact on those in, or at risk of falling into, poverty

Impact on equality of opportunity

Long-term management capability

Links with other tourism or development projects and activities

Marketing arrangements

Strategic value for regional development

Department of Finance

Sanctions

On 18 January 2001, the Department of Finance noted the proposal that these four projects be subject to assessment for suitability for aid in accordance with a scheme based on the objective criteria as set out in the NDP Programme Complement for Marine Tourism and Leisure. The Department of Finance stipulated that the views of the Department of Arts, Sport and Tourism, and Bord Fáilte, should be fully taken into account in assessing the suitability of each of the projects for assistance.

On 28 August 2001, it further directed that assistance for the projects should be by way of repayable grant.

Further individual sanctions issued in respect of Kenmare and Caherciveen as follows:

Kenmare

The Department was to finalise appropriate detailed operational procedures and the promoters were to comply with all necessary statutory requirements.

Caherciveen

The Department was to be satisfied that the proposal met the Department's own objective criteria. The application of grant assistance to the project was to be on the same basis as that applying to all applicants under the NDP Programme Complement for Marine Tourism and Leisure.

Guidelines for the Appraisal and Management of Capital Expenditure Proposals

The Department of Finance stipulates that the project appraisal and sanctioning requirements of the above guidelines, issued in 1994, should be applied to all forms of capital expenditure, including capital grants. The guidelines identify and advise on the four stages of project evaluation and management as follows:

Appraisal

Planning

Implementation

Post-Project Review

The guidelines stress that all involved in the appraisal and management of expenditure proposals should guard against the danger of giving a project, when first mooted, a degree of premature commitment.

Expenditure

Expenditure incurred to 31 December 2003 comprised the full grant of €2.54m in respect of Caherciveen marina and €332,312 in respect of the development at Kenmare. Provision for payment of the balance for Kenmare, together with the grants approved for Roundstone and Rosses Point, has been made in the 2004 estimate for the Vote.

Audit Findings

Kenmare

Background

On 7 November 2000, the Department received an application for funding of €666,613 in respect of the development of a marina and maritime leisure and training facilities at Derreenacallaha, Kenmare. The estimated cost of the development was €1,514,162. The application was made in the name of an individual and specified that the project would be developed and operated by a named company.

On 6 December 2000, the Minister issued a letter to the promoter's financial advisers noting his agreement to grant-aid the project. Concern was expressed within the Department that the letter constituted a letter of comfort that could be interpreted as creating unwarranted expectations and a possible basis for a future claim against the Department. There was concern that the letter could constitute an irreversible commitment to funding in advance of consideration.

A revised application for €752,550, towards total costs of €1,665,540, was received on 30 December 2000. The project comprised a sail/canoe training school and ancillary services, including the provision of a pier and slipway. The amount applied for represented 45.2% of the total cost, as against the maximum grant level of 40% allowed in respect of private projects under the draft scheme. It also included €73,010 in respect of marketing, which is an ineligible category of expenditure under the scheme. No formal business plan accompanied the application.

Project Assessment in the Department

On 18 January 2001, in carrying out its assessment of the project, the Marine Leisure and Research Division noted

That its assessment took place in the light of the Minister's letter of 6 December, signalling his agreement to grant-aid the project, and his direction that this, and the other three projects, be afforded priority treatment.

That the decision making process employed differed from the proposed Marine Tourism Grant Scheme, in that there was no Project Assessment Committee and no Selection Board.

That the lack of a rating system with which to compare the relative merits of competing schemes was unsatisfactory, given the procedures that other applicants would have to follow whenever the Marine Tourism Grant Scheme was introduced.

That the amount applied for was at a rate (45.2%) of aid that exceeded the maximum rate (40%) that would apply for private projects under the forthcoming NDP Programme Complement for Marine Tourism and Leisure.

That difficulties existed in relation to the foreshore lease.

The Division did not undertake any assessment of the overall viability of the project and made no recommendation regarding approval.

Grant assistance up to a maximum of €752,550 was approved by the Minister on 24 January 2001, subject to a number of conditions, including evidence of planning and foreshore permissions having been obtained, production of a tax-clearance certificate and demonstration that the project would be viable for a reasonable time period after construction. No time limit was set for the completion of the project. The letter of approval was signed by a Department official, on the direction of the Minister. The promoter confirmed acceptance of the conditions on 28 February 2001.

Post grant-approval developments

A draw down request for €332,312 was approved and payment made in December 2001. Copies of relevant planning approvals were enclosed with the request.

The Department became aware, in 2002, that work on the site had seemingly stopped, and, on two occasions, requested an update from the promoter. Both requests went unanswered and a site visit by one of the Department's engineers was arranged in December 2002. The engineer found that, while the building appeared structurally complete, it was in contravention of planning approval.

The Department put a stop on any further grant payment, pending resolution of the planning issues. In November 2003, the grantee withdrew a revised planning application and Kerry Co. Council issued an enforcement notice to remove any unauthorised buildings.

In February 2004, the grantee informed the Department that the buildings had been demolished and that it was intended to rebuild to the originally approved design. Notice was also given that it was intended to apply for further draw down of the originally approved grant. The Department sought legal advice in respect of the courses of action available to it.

Caherciveen

Background

An application for funding and associated business plan in respect of a 93-berth marina at Caherciveen was submitted by the promoters in June 2000. The estimated cost of the project was €3.5m, excluding VAT, to be funded by the Department (€2.58m), by Kerry Co. Council (€275,000), by South Kerry Development Partnership Ltd (€64,000) and income of €588,000 from the advance sale of berths. The Minister, in a letter to the Minister for Justice, Equality and Law Reform on 14 December 2000, signalled agreement in principle to the approval of grant-aid.

The application was considered by the Department at the direction of the Minister. Officials pointed out

The high level of Departmental funding requested (75% as against a maximum of 50% allowed in respect of community or public projectsunder the draft scheme).

The fact that some elements of the project would not qualify for assistance under the scheme.

That some expenditure had already been incurred, thus rendering it ineligible for grant assistance.

Bord Fáilte had serious concerns that an adequate payback in terms of tourism benefits could not be realised at that level of public cost — 75% grant contribution. That agency also advised that a mechanism needed to be found to generate more of the investment from the most immediate likely beneficiaries. Department papers also indicate that a previous Tourism Grant approval in respect of the project had been withdrawn by Bord Fáilte in 1999.

As the funding and backing of Kerry Co. Council and South Kerry Development Association was not forthcoming, the project was reduced in scale and split into two phases. By postponing construction of onshore facilities, the capital costs were scaled down to €3.1m excluding VAT. The promoters then agreed a fixed price contract, in advance of formal grant approval from the Department.

Project Assessment in the Department

The Marine Leisure and Research Division carried out an assessment of the revised business plan in April 2001. The Department's engineers believed that the viability of the project would have been maximised by proceeding with the original plan in its entirety. They did, however, consider it feasible to proceed from a technical point of view with the separate phases. They recommended amendment of the foreshore licence, a proper site investigation, and that dredging work be better quantified than outlined in the plan. The engineers also expressed a view that the estimated costs seemed quite tight, not allowing for cost overruns which could be anticipated with such a project.

The Department's Marine Leisure and Research Division's assessment concluded that

The promoters were unable to fulfil three of the principal conditions set down by the Minister in signalling agreement in principle on 14 December 2000. These were that Kerry Co. Council would underwrite the entire project, and that agreed contributions would be received from the Council and South Kerry Development Partnership Ltd.

The long-term financial viability of the project was questionable, without a clear indication of when the on-shore facilities would be developed and how they would be funded.

Income projections were insufficient, with doubts being expressed over whether the revenue generated from as yet unsold berths would be sufficient to sustain the maintenance and running costs of the marina.

Doubts existed over the necessary management personnel, infrastructure and training arrangements being in place.

The Department would not be justified in bowing to pressure for an early decision, so that a contract could be signed.

It could not recommend that such a course of action would be justified in replacing what should be normal practice in assessing infrastructural projects involving proper evaluation and analysis of all the issues followed by good design, pricing, evaluation of tenders, review of funding and management of the final agreed project.

For those reasons, the Division was unable to offer its approval of the business plan or issue a sanction for funding, as requested by the promoters.

Financial advisers engaged by the Department highlighted more serious concerns regarding the viability of the project and expressed strong reservations about the manner in which the estimated capital funding was put together

The promoters had failed to raise any capital funding, the only contribution being from the pre-sale of berths — funds that should be used to meet operational costs.

The Department was providing between 85% and 100% of the capital costs, depending on how the estimates were interpreted. This is because of the fact that 11% of the total estimate consists of refunds of VAT already accounted for in the moneys paid from the Department's grant in respect of construction, contingency, professional fees and pontoons. The maximum grant aid for such a project under the then proposed Marine Tourism Grant Scheme was 50%.

Available finances did not provide for a contingency fund to account for cost overruns or revenue shortfalls. These latter were likely, as the development of on-shore facilities had been postponed.

Kerry Co. Council concerns

Kerry Co. Council had very strong reservations about the revised business plan for the project and in particular

Expressed concern over the ability of a non-professional group, the project promoters, to successfully see the project to conclusion within budget.

Expressed particular unhappiness at the pressure being put on it to take on a role in the project, together with significant responsibilities and liabilities, both real and potential.

Was not prepared to recommend that it guaranteed the project or any of the capital costs involved.

Developments

A consultation process then ensued, involving the Department, Kerry Co. Council and the promoters. Changes to the business plan were agreed. The changes included

The formation of a steering group to advise the promoters on matters relating to the construction of the marina. The group was to comprise representatives of the Department, Kerry Co. Council and the promoters.

The promoters underwriting the moneys due from the sale of berths.

The appointment of a quantity surveyor and a financial controller.

Kerry Co. Council to provide a total of €95,230 over 5 years.

Kerry Co. Council to provide engineering assistance and advice.

Full details of the revised business plan to be agreed between Kerry Co. Council and the promoters.

Department papers indicate that, in May 2001, Kerry Co. Council confirmed that all actions required of the promoters had been undertaken and that it was now happy to back the project. The Department regarded this as a major step in providing the assurances required regarding the viable planning and development of the project. The Department still considered that the finances for the project remained tight. However, the Department accepted that structures for the project had been put on a stronger footing, that the promoters had shown the viability of the project from a financial viewpoint, and that they had sufficient resources to meet the maintenance and running costs for a reasonable period of time after completion. The final proposal comprised 38 berths designated for tourism and 55 berths to be leased privately.

The Minister approved a grant of €2.54 million on 7 June 2001, the letter of approval being signed by a Department official, on the direction of the Minister. It contained conditions reflecting the standards outlined in the Marine Tourism Grant Scheme as well as conditions specific to the project and which reflected Kerry Co. Council's own conditions for the project. The conditions were accepted by the promoters on 11 June 2001.

The Department appointed a consulting engineer as its representative on the steering group. In December 2002, the engineer certified that the marina had been operational since August 2002, that its operation had been satisfactory and its technical performance acceptable. The engineer also expected that the outcome of the final account, then being completed, would be acceptable, and he confirmed, to the best of his knowledge, compliance with the grant conditions as set out by the Department in its letter of offer. Final payment of the grant was made in December 2002.

The Department has undertaken to carry out a post-project review in Autumn 2004. The review is to establish whether the project represents a good value for money investment, and will cover operations, financial and marketing aspects, as well as providing an assessment of economic impact.

Roundstone

In July 2000, Roundstone Development Council submitted a proposal for the development of a 20-berth marina at a cost of €521,000. The applicants submitted a brief summary with revised costings of €930,972 in December 2000 and the Minister agreed, in principle, partial funding for the revised project on 25 January 2001. In July 2001 the applicants made another revised submission for a 34-berth marina at an estimated cost of €1,446,868. Approval in principle for a grant of €1.16m was given in July 2002, by which time the development was expected to cost €1.75m.

The promoters were invited to demonstrate the financial viability of the project and acquire planning permission and a foreshore licence. Since then, a revised proposal submitted to the Department in January 2004 indicates that the estimated cost of the project has risen to €2,660,000. The promoters sought a revised grant of €1,910,000. In the revised proposal, 25 of the 34 berths are reserved for private use and 9 for tourism purposes. Assessment of the revised proposal has not been completed by the Department, which is still in the course of evaluating the financial viability, qualifying expenditure, level of State grant as a proportion of total cost, status of promoters and their ability to underwrite the project. The Minister, on 18 May 2004, approved a further €530,000 in grant assistance, subject to the promoters satisfying a number of conditions.

Rosses Point

The first formal application for funding of a 42-berth marina was received in February 2001. Grant assistance of €1.27m in respect of the project was approved in June 2001. The promoters, Sligo Co. Council, estimated the cost of the project to be €1.75m. By April 2002, the cost of the project had risen to €2.62m for a 47-berth marina, which was at that stage regarded by the applicant's consultant marine engineers as the smallest viable size. Financial difficulties resulted in the project being divided into two phases. A revised application was submitted in respect of Phase 1, the construction of a 27-berth marina, costing €1.73m. It was envisaged that 12 berths be reserved for tourism purposes, the remainder being let for private use.

As Sligo Co. Council had given no indication of how Phase 2 would be funded, the application was assessed for viability as a stand-alone option. The Department's Engineering Division's report highlighted technical and safety issues, with consequent potential liabilities for the Minister. These issues were later addressed to the Department's satisfaction. The financial assessment concluded that the marina was not financially viable, unless spin-off activities could be quantified. The application of Capital Investment Appraisal Technique showed a very poor return on investment, with a negative discounted cash-flow projection and a payback period of 106 years.

By June 2003, the estimated cost had risen to €2.2m. A revised financial appraisal was submitted by the promoters in September 2003. As a result of evaluations carried out within the Department, doubts have been expressed regarding the financial and technical viability of the scaled down marina as follows

The Finance Unit questioned the concept of the proposed management company being one that is limited by guarantee, which would limit Sligo Co. Council's liability and, effectively, mean that it would not be underwriting the project.

The Finance Unit also found that the business plan submitted contained an incomplete balance sheet, indicated a very tight margin between profit and loss, and suggested inevitable liquidity problems.

The Internal Audit Unit expressed concerns about the plan and was of the opinion that the sale of berths to members of the local yacht club represented a very good deal for the purchasers.

Little progress has been made during 2004 and the schedule that had been set out for completion has not been adhered to. Problems also exist regarding the foreshore lease. Sligo Co. Council, who applied for the grant, intend setting up a management company to run the marina. A Deed of Covenant is currently being prepared. Agreement has not yet been reached with regard to an undertaking by Sligo Co. Council that it will support the operation of the project for a 10-year period.

Audit Concerns

The unorthodox way in which these four projects have developed prompted me to make inquiries of the Accounting Officer.

Accounting Officer's Response

General

The Department had no role in the initiative taken by the promoters to develop these projects nor did the Department at any time seek to become involved in the projects. The Department's role in allocating grant funding for these projects arose from a Budget Day adjustment in 2000 agreed by Ministers, which set out the individual amounts to be allocated to each of the four projects.

The Marine Tourism Grant Scheme

As was made clear at the Budget Day announcement in December 2000, these four projects were to be progressed outside the project selection and assessment procedures provided for in the NDP Programme Complement for the Marine Tourism Grant Scheme, which, at that time, was in draft form only and had neither been finalised nor approved.

The criteria, which were laid down in the draft Marine Tourism Grant Scheme, were outlined to the applicants for the four projects and they were required to demonstrate that their projects satisfied these criteria. All applications did address the criteria as outlined. However, the Department's rating of the extent to which the criteria were satisfied could not be fully in line with the rating and assessment procedures that would have been put in place under the scheme. Had such a rating scheme existed, it would also have proved difficult to rescind approval already given in principle if the projects had not achieved a sufficiently high score to qualify for grant assistance.

The application of grant assistance could not be on the same basis as that which would have applied under the scheme, insofar as the selection process was not competitive and the procedures for assessment were not in place. However, the Department insisted on the conditions for the grants being met and these conditions mirrored precisely the criteria being laid down for the scheme.

The Marine Tourism Grant Scheme was a sub-measure of the Tourism Measure and formed part of the two operational programmes of the National Development Plan 2000-2006. Under the scheme, a total of €25.4 million was allocated to marine tourism and targeted particularly at improving marine access infrastructure such as marinas, berths and slipways. The delay in launching the scheme arose from the protracted process of obtaining State Aid approval for the overall Tourism Measure, of which the Marine Tourism Grant Scheme was one sub-measure. State Aid approval for the Measure was not received until November 2001. The first call for applications was made in late December 2001 with a closing date of March 2002. Operational guidelines were published on 4 February 2002. Following the call, over 60 applications were received, of which 15 eligible projects were identified as being suitable for a detailed assessment. These projects were to have been assessed in detail by consultants in consultation with a Project Assessment Committee and recommendations sent forward to the Tourism.

Product Selection Board who were to have made the final decision on which projects would receive funding. The detailed assessments were not carried out, however, as it became evident that the funding for the Scheme would not be available in 2003 and could not be guaranteed in the following years. The scheme was suspended in December 2002 and no projects have been approved for funding.

The mid-term review of the National Development Plan recommended that the funding allocated to the Marine Tourism Grant Scheme be reallocated to other priorities. In the light of this recommendation, and the lack of any funding in 2004, it has been agreed with the Regional Assemblies that the scheme could be sent to the Monitoring Committee for formal closure in Autumn 2004.

Involvement of Other Public Bodies

The requirement to seek the views of the Department of Arts, Sport and Tourism and Bord Fáilte was contained in a letter from the Department of Finance, dated 18 January 2001, which was issued in response to a specific request to sanction payment of the grant to the Kenmare project. Bord Fáilte issued a BES certificate in respect of the Kenmare project, which meant that the project met with the Board's product standards requirement and was placed on the appropriate Bord Fáilte register of approved tourist products. Bord Fáilte's favourable opinion of the project was also confirmed by a phone call from the Department.

In the case of the Caherciveen project, Department of Finance sanction for payment of the grant was issued in a letter dated 28 August 2001. It made no reference to seeking the views of the Department of Arts, Sport and Tourism, and Bord Fáilte, or to the earlier Department of Finance sanction letter. However, it is accepted that the earlier letter, dated 18 January 2001, did include this requirement for all four projects. The Department, however, confirmed with both Bord Fáilte and the Department of Arts, Sport and Tourism that an offer of a grant of €952,000 (based on an overall estimated project cost of €2.06m) had been approved in principle in November 1999 for this project but had been withdrawn by the Tourism Operational Programme Advisory Board as a number of details were not supplied by the promoters within the required timescale. Bord Fáilte and the Department of Arts, Sport and Tourism both confirmed that while they had given no commitment to the promoters with regard to funding, they indicated that they would welcome the project being submitted anew when the new Operational Programme was in place later in 2000.

While no specific declaration that the projects were not in receipt of other State funding was sought, details of the full funding arrangements for each of the projects was supplied. These gave a breakdown of all sources of funding for each of the projects, including how the applicants were to meet their share of the project costs.

The Department of Finance guidelines assume that no decision has been made to support a project in principle in advance of the appraisal being undertaken. As this was not the case in relation to these four projects, the guidelines could not be applied in their entirety. The Department did, however, apply the guidelines in as far as possible, particularly in relation to the financial assessment of the projects at Caherciveen, Roundstone and Rosses Point. The applicants have been required to present profit and loss and balance sheet projections and to apply sensitivity analysis to their business plans, as specified in the Department of Finance guidelines. The business plans for Caherciveen, Roundstone and Rosses Point have also been assessed by qualified accountants on behalf of the Department.

EU State Aid Regulations

The amount of the Budget Day announcements did not appear to take into account the limits allowed under State Aid rules that would have applied under the Marine Tourism Grant Scheme. The level of grant approved for Kenmare was only marginally over the limit. In the case of Caherciveen, the original plans were scaled back because the applicants could not raise sufficient funds. This meant that the Department's grant constituted a larger proportion of the revised project costs, representing an 83% grant to cost ratio as against the maximum of 50% permissible. Department concerns about the level of grant being considered were included in the submissions for approval of the grant to the Minister. There is a question over the status of the Roundstone project and the amount of grant aid proposed may exceed the State Aid ceiling depending on how the project is categorised. The amount of grant aid proposed for the project at Rosses Point is within the State Aid limits.

Kenmare

The Kenmare project may not have qualified for grant aid under the terms of the Marine Tourism Grant Scheme. However, it was selected by Ministers as a flagship marine leisure project outside the scheme, and therefore the strict eligibility criteria under the scheme did not apply.

The Department was under pressure to expedite payment of these grants. Payment of the first instalment of this grant was made on the basis of invoices in respect of matured liabilities and copies of the planning permission and foreshore lease that had been obtained. The Department accepted, in good faith, that the transmission of the planning documents with the application for payment constituted a clear implication that the work was in accordance with these conditions. Certification of construction in accordance with statutory conditions will be required in the event that it is completed as originally intended.

It was envisaged that security for the grants by way of a Deed of Covenant would be put in place, but payment was made in advance of the legal documents being drawn up and agreed. The Minister has directed that the Chief State Solicitor's Office (CSSO) be instructed to seek to put in place the necessary legal formalities to regularise the position with regard to the Kenmare project, including the putting in place of a Deed of Covenant and a Charge on the facility to protect the State's investment. The Deed will include clauses to address recalling the grant moneys in the event of breaches of the conditions laid down. It is considered that greater value would be derived for the State if the project were completed in line with the original planning conditions, rather than running the risk of nugatory expenditure.

The foreshore lease was granted to an individual who is Director and Secretary of the company which is the legal entity to which the grant was paid. The distinction between the two legal entities is a technicality which was not fully appreciated within the Department until it was highlighted as an issue by the CSSO. The CSSO has advised that this anomaly can be regularised and has been instructed to deal with the individual's solicitors on this matter.

Compliance with procurement procedures was not included as a condition for grant approval, and evidence of compliance with these procedures was consequently not sought. It is not evident what form of procurement procedure was employed.

Caherciveen

The eligibility conditions of the Marine Tourism Grant Scheme did not strictly apply in the case of this project, as it did not form part of the scheme. It was, however, laid down in the grant award letter that invoices or certified payments for works carried out prior to the date of grant allocation would not be accepted for payment purposes. As the non-marina elements originally envisaged were not included in the revised plan, all grant moneys paid were in respect of the core marina infrastructure and were verified by the Steering Committee established by the Department and Kerry Co. Council to oversee construction of the marina.

It was made clear in relation to payment for the Caherciveen project that the payment was by way of a repayable grant, and it was indicated that the Department would be putting the necessary security arrangements in place. This matter will be addressed in the Deed of Covenant, which will include clauses providing for repayment of the grants if any conditions are breached.

In the grant award letter for the Caherciveen project it was made clear that the grant was being made for the proposed marina development at Caherciveen. It was also stipulated that Kerry Co. Council would provide financial support for the operation and maintenance of the marina for the first five years. These items are also explicitly addressed in the Deed of Covenant that has been drafted by the CSSO for Caherciveen.

Correspondence and details of tenders received in the case of Caherciveen indicate that the lowest tender was accepted.

Roundstone and Rosses Point

Both of these projects have still to satisfy the Department's conditions for funding approval. In the case of Roundstone, the estimated costs increased and a revised business plan was submitted to the Department in May 2004. The plan is still under consideration from a financial and technical point of view. A Dumping at Sea Licence has also yet to be approved, and any final funding decision will be contingent on the Licence being issued.

The Rosses Point project has not yet secured its foreshore lease, which is also essential before funding approval can be given. A difficulty has also arisen with the requirement for Sligo Co. Council to take responsibility for maintaining sufficient working capital to operate the marina over a 10 year period. This has also yet to be resolved.

While the grant funding for these projects is identified in the Department's Vote for 2004, it is a matter of concern that neither of these projects is in a position to commence.

This chapter deals with the evolution of four projects intended to improve the infrastructure for marine tourism in the west and south west. To date, the Department has grant-aided two of the projects, those in Kenmare and Caherciveen to a total of €2.87 million. Two other projects, mooted for Roundstone and Rosses Point have not so far received funds from the Department. However, money is earmarked for both in the Department's 2004 Estimate and both have received some degree of approval in principle subject to conditions. The National Development Plan 2000 — 2006 and, in particular, that part of the programme known as the programme complement for marine tourism and leisure, provides the backdrop against which these four projects have been dealt with by the Department.

Within this programme, the Department had planned to fund marine tourism to the tune of €25 million through a variety of schemes, each with its own criteria and conditions. However, on budget day 2000, an additional €5.7 million was specifically earmarked for the four projects in question. The allocation amounted to €750,000 for Kenmare, €2.4 million for Caherciveen, €1.16 million for Roundstone and €1.27 million for Rosses Point. This conditioned all that followed.

All four projects gave rise to audit concerns because of the unorthodox way in which they have developed. Some of these concerns related to more than one of the projects. For example, compliance with the norms for the appraisal and management of capital expenditure proposals, compliance with EU State aid regulations, gaps in the business plans underpinning the proposals and issues associated with the legal ownership of the facilities and responsibility for their long term management.

Other concerns related to particular projects. For example, in respect of Kenmare, planning issues, including the absence of a deed of covenant to protect the State's investment, were of concern. In Caherciveen a concern was the high proportion of funding sought and granted and initial county council concerns. However, it should be said in respect of this project that many difficulties were overcome. The project is up and running and a Department-appointed engineer has certified that the marina has been operational since August 2002. It should also be noted that a post-project review is scheduled for later this year. I hope this will flesh out the lessons for the future regarding similar projects.

In regard to Roundstone, the significant variations in the estimates of the cost and scale of this project are noteworthy. These went from approximately €500,000 for a 20 berth facility in July 2000 to €1.4 million for a 34 berth facility one year later, to a January 2004 estimate of €2.7 million. The Rosses Point project has also varied significantly over time as regards scale and cost in ways which give rise to doubts about its viability. Estimated costs ranged from €1.75 million for a 42 berth facility in June 2001 through €2.62 million for a 47 berth facility in April 2002 to €2.2 million for a reduced phase one 27 berth facility in June 2003. However, it should be noted that no expenditure from the Vote has occurred in respect of either Roundstone or Rosses Point at the time the audit was completed. The audit sought to establish the extent to which the Department followed the guidelines for the appraisal and management of capital expenditure laid down by the Department of Finance and the steps taken generally by the Department to manage taxpayers' money in a prudent manner. The chapter sets out our findings in respect of each project and concludes with the Accounting Officer's response to our inquiries in each case.

I invite Mr. Tuohy to make his opening statement.

Mr. Tuohy

I will go through it fairly quickly since members probably have a copy. I last spoke on this subject at the request of the Joint Committee on Communications, Marine and Natural Resources on 20 July 2004. At that meeting I made a comprehensive statement on the planning, legal and process issues regarding marine leisure projects at Caherciveen, Roundstone, Kenmare and Rosses Point. The report of the Comptroller and Auditor General highlights the way in which these projects were placed on the Department's agenda and the difficulties the Department has had in advancing them. While the report deals primarily with the two projects at Kenmare and Caherciveen where expenditure has been incurred, it also addresses the two projects at Rosses Point and Roundstone which have been approved in principle but in respect of which no payment has yet been made.

In response to the report of the Comptroller and Auditor General I will endeavour to set out clearly the present status of the projects. I will also deal with the processing by the Department of the applications for grant assistance by their respective promoters. I will now describe the project inception.

The crucial date regarding the projects' placement on the Department's agenda was budget day, 6 December 2000. The Budget Statement of that day allocated €5.7 million to the four projects. At that time the Department was developing a competitive scheme under the tourism measure of the National Development Plan 2000 to 2006 that would be open to marine infrastructural project promoters nationally. The scheme, known as the marine tourism grants scheme, was one of five sub-measures of the tourism measure and to be operated on an open, competitive and objective basis.

The aim of the process was to select from an inevitably wide range of applicants those that would best serve the public policy objectives of the tourism measure which were to develop the tourism product in a sustainable way that would widen the spatial spread of tourism; divert pressure from highly developed areas and increase underperforming regions' share of overseas tourism revenue. That meant that fully developed proposals, demonstrated to be viable, accurately costed and clearly articulated to contribute to those tourism objectives, would compete within an objective process, with only some projects surviving the rigorous selection process.

It is important for the committee to understand that the Department was in the early stages of putting together such a competitive scheme when it was asked to grant €5.7 million in assistance to the four projects in question. Because state aid clearance was required from the European Commission, the operational guidelines for the scheme were not published until February 2002. The scheme was suspended for budgetary reasons in December that year.

The task given to the Department was at variance with that which it had envisaged for itself within the structures and selection processes of the marine tourism sub-measure. It is worth noting those fundamental differences as they go to the heart of many of the process issues and some of the legal and planning issues in making progress on the four projects. The major differences were as follows. First, successful projects under the sub-measure would have undergone a searching, competitive process which would have produced a clear rationale for State assistance; the criteria for selection of the four projects for inclusion in the budget day announcement of assistance were not known or, if they were known elsewhere, were not communicated to the Department's officials.

Second, the competitive selection process required fully developed proposals, including relevant planning permission and foreshore lease or licence, allowing for comparative ranking and selection of high value projects; virtually no relevant information on the viability or tourism value of the projects was made available to the Department at the time assistance was announced in December 2000.

Third, no commitment or other indication of support could or would have been made to promoters under the competitive scheme until they had been identified as successful following searching evaluation; in contrast, commitments were made to those four projects when only incomplete information on them was available.

Fourth, the NDP scheme would have had bounded time periods for submission and completion of fully developed schemes; the processing of the four marinas was not so bound, the result being that important issues are still the subject of dialogue between the Department and the project promoters over three and a half years after the announcement of assistance.

Fifth, the selection, evaluation and decision-making processes envisaged under the NDP sub-measure were to be objective and independent; the four projects, on the other hand, were subject to very close interest and ministerial direction at all stages of the management process.

These fundamental differences presented the Department with considerable difficulties in making progress on the four projects. It was made absolutely clear to the Department that there was a very strong wish that they should progress; any difficulties arising for the Department were to be seen in the context of seeing the projects progress as rapidly as possible. The Department proposed and it was accepted that they should be appraised in accordance with the criteria for marine access infrastructure under what at the time was the upcoming scheme. In the event, that proved impossible and illusory because of the fundamental differences between the NDP processes and the four projects outlined.

In addition, for the following reasons, it was not possible to apply the criteria. First, the detailed criteria for the NDP scheme had not been worked out at the time as state aid approval for the scheme had not yet been granted. Second, pre-selection had already occurred, thus negating one of the key aspects of the scheme, namely, that it be a competitive based process with clear criteria to be measured against and a comparative ranking of projects. Departmental officials were being asked to retro-fit some of the selection criteria to projects that had effectively already been selected, even though little was known about them at the time of selection.

Clearly, this was an impossible task. One project, the Kenmare marine leisure project, comprised a sail and canoe training school and ancillary facilities, including the provision of a pier and slipway. It was not a marina project and would have been unlikely to qualify for grant aid under the marine tourism grants scheme which was to be specifically directed at marine access infrastructure. Thus, the application of the selection criteria to the project would have been meaningless and virtually certain to rule it out. On the other hand, there was a clear and strong desire communicated to the Department for it to progress.

The Caherciveen project was for a 93 berth marina to be developed by Caherciveen Community Development Company at an estimated cost of €3.5 million. I apologise if I gave the wrong figure. While the concept had the potential to meet the eligibility criteria under the marine tourism grants scheme, it was still at an early stage of planning when selected for support. When details became available, the shortcomings in the plans for the project resulted in a scaling down but with the same grant allocation of €2.54 million. The result was an 83% grant-to-cost ratio. Both the change in the scale of the project and the level of grant aid envisaged would have presented major problems were the project being progressed through the NDP scheme as the maximum level of grant in that case could not exceed 50%. Proposals to undertake an independent evaluation of the project are under consideration. We have signed up an external consultant to do the work.

The Rosses Point and Roundstone marina projects are considerably behind the projects at Kenmare and Caherciveen. Of necessity, they been subject to particular scrutiny because of the passage of time since the strong impetus in 2000 and immediately thereafter; the publicised concerns about the Kenmare project, in particular, earlier this year; the change of Minister in 2002 and the query raised by the Comptroller and Auditor General resulting in this report.

Neither project was in any sense developed when the relevant commitments were made in 2000. The Department received a business plan in respect of the Roundstone project only this year, over three years after the initial commitment to finance it. As evidence of how embryonic and, in some ways, superficial the proposals for the marinas have been, one can state the project at Rosses Point has had to be scaled back from 47 to 27 berths, while the grant assistance offer has been maintained at €1.27 million, or 57.4% of capital costs. Forecast costs have escalated from €1.75 million to €2.66 million, with the promoters currently seeking a grant of €1.91 million, equal to 72% of total costs, compared with the original approval of €1.16 million, equal to 66% of total costs, in 2002.

If the NDP scheme was operational, it is almost certain that the escalation of costs, repeated viability issues and scaling down of the latter projects would have resulted in their not qualifying for assistance, even having regard to the narrower financial criteria. There are also major questions about whether State support for the marinas will create the public good and other public policy objectives specified in the project selection criteria and which were the intention of the tourism measure. As I said, the tourism measure was designed to develop tourism as a product and increase underdeveloped regions' share of overseas tourism revenue. In the case of the marinas, particularly those at Rosses Point and Roundstone where the main beneficiaries appear to be individuals who will occupy the majority of the berths on long-term leases, there are major questions as to whether in this case State support will be used to create a largely private, as opposed to a public, good.

Apart from their questionable tourism value, the current status of the four projects points to a range of legal and planning issues. One difficulty that has arisen is whether aid to the projects is to be regarded as state aid under Article 87 of the EC treaty and, therefore, need individual state aid approval. Whereas state aid approval was obtained from the European Commission for the marine tourism grants scheme, we have been recently advised by the Office of the Attorney General that the approval given for the scheme does not extend to the four projects selected outside the scheme. There are complex legal issues involved but one possibility is that individual state aid approval will have to be sought for the projects without certainty of success. This will undoubtedly cause further delays in progressing the projects at Roundstone and Rosses Point. It may also have implications for the grants already paid in respect of the projects at Caherciveen and Kenmare.

As regards the project at Caherciveen, the marina is operational since August 2002. All grant funds have been expended and an independent post-project review will be carried out shortly. It was intended that security for the grant aid would be provided by way of a deed of covenant but pressure to expedite payment to the promoters meant that the deed was not put in place in advance of payment. The Chief State Solicitor's office has drawn up such a deed which should be in place shortly.

As regards the project at Roundstone, the Department's advice is that this may constitute a private project which, if approved for State aid, may attract a maximum 55% level of State aid, whereas the amount of funding on which the finances of the project are based requires a 72% grant from the Department. The fact that 25 of the 34 berths are reserved for private use, leaving only nine for tourism purposes, makes the public good and tourism value of the project highly doubtful. In effect, taking the overall cost of the project and dividing by the number of berths, each berth could be assigned a cost of approximately €78,000. As proposed, 25 of the berths, at a total cost of €1.96 million, are leased to 25 individuals as net beneficiaries. The contribution to the 25 berths by the individuals who will have the use of them is €30,000 per berth. This means that the State could be seen to be subsidising each of these 25 berths in the amount of approximately €48,000. These are issues for further consideration by the Department and the Minister.

As regards the project at Kenmare, the first payment, €332,312, was made in December 2002. It was made on the basis of planning and foreshore lease approvals and invoices in respect of matured liabilities. No requests were made for further grant payments. As the committee is aware, the Department became aware that the building was in contravention of planning approval in October 2002. Steps were taken by Kerry County Council to enforce the planning permission. In February 2004 the applicants informed the Department that the illegal building had been demolished. They also stated it was intended to complete the project in line with the original planning permission and to apply for a further drawdown of the suspended grant. On foot of legal advice, the Minister has directed that the Chief State Solicitor's office be instructed to endeavour to put in place the necessary legal formalities to regularise the position. The State aid issue may also have implications for the project.

As regards the project at Rosses Point, considerable progress has been made in regard to the approval of the foreshore lease. However, because all 27 of the berths are to be let to private individuals, the tourism value of the facility is limited to the 12 berths on the floating breakwater. As with the project at Roundstone, this makes it questionable as to how the public good and tourism value criteria can be satisfactorily addressed. Taking the overall cost of the project and dividing by the number of berths, the cost per berth works out at approximately €56,000. Only 12 berths, at a cost of €681,230, are provided specifically for tourists. The total capital cost of the marina is €2.2 million. Tourism value has been enhanced to the extent that visiting boats will be permitted to raft up alongside berthed boats. It has also been agreed that North West Tourism will be asked to nominate a representative to the marina management board to represent tourist interests. However, the overall tourist value remains limited. If State approval has to be sought for this project, as for the others, this is likely to cause further delays and approval is by no means assured.

The committee will be aware that the manner in which the projects have developed, as described in the report of the Comptroller and Auditor General, has presented my Department with severe process, legal and planning difficulties, with the prospect — if not handled properly — that the State could be the subject of State aid cases involving the repayment of grant money to the State, with interest. Most but not all of these difficulties arise from the limbo within which the projects have resided, having been subjected to ministerial direction to progress them and apply the terms of the marine tourism grants scheme to the applications, yet not to rank them in comparison with other projects as to their capacity to create public policy and public good objectives and demonstrate a cost-benefit under analysis. Further decisions will be required in respect of progressing the projects at Rosses Point and Roundstone, that is, whether they should progress having regard to the limited public policy objectives they are likely to deliver and the amount of grant aid allowable under state aid rules. The other legal and planning as well as liability issues will be progressed in accordance with relevant legal and other professional advice.

May we publish the statement?

Mr. Tuohy

Sure.

Can Mr. Tuohy explain in more detail the recent legal advice obtained with regard to State aid?

Mr. Tuohy

As the committee is aware, Article 87 of the treaty deals with state aid. The whole concept is to prevent individuals and individual areas across the European Union being given extra aid over and above anybody else. There is a competition element involved. The Department went for approval on the tourism measure and the operational programme. This was approved in 2002. Subsequently, there were general State aid guidelines covering the percentages of aid available in the BMW, south and east regions. There are specific figures available for an SME: if, say, the figure is 40%, another 15% can be added bring the total to 55%.

As can be seen, there is an issue around marinas. There were a number of legal cases involved when the Attorney General's office looked into it, including cases in the Netherlands and elsewhere, where complaints had been made. There have not been complaints made about these. Marinas are seen to be in competition with others in other member states in the sense that one is trying to attract visitors and if one is getting extra aid over and above what is laid down in state aid rules, it places them at a competitive advantage.

This issue concerns tourism. Part of the rationale was to attract tourists from other countries. We have to balance this and make sure we are operating within the legal requirements for State aid. That is the issue surrounding the granting of State aid. There are two issues involved. There is the scheme which has approval but because the projects were outside the scheme, we now have to go back on each of the four to talk to the Commission about this once we have tidied up the detail of what the final level of grant aid will be.

Is there a possibility of getting a number of projects included? A sum of €25 million was originally announced for the marine tourism grants scheme, for which there were 60 applicants. Was Mr. Tuohy disappointed that the scheme was shelved, given the development of tourism facilities within the marine sector? There were 60 applicants from which 15 were chosen but there was no guarantee of funding even to those 15.

Mr. Tuohy

There are two issues involved. The scheme was announced in 2002 and there were more than 60 applicants, of which 15 were ranked. According to the criteria for the scheme, one must have planning permission and foreshore leases sorted out before one applies. That is part of the operational guidelines. In 2002 a decision was made that sufficient funding was not going to be available and the scheme was suspended in December that year. That was a budgetary decision which had nothing to do with the scheme.

The other four projects were outside the scheme and announced as flagship projects. While we were asked to apply the criteria for the scheme to them which is what we have endeavoured to do in the past few years, the legal advice is that we now have to go back to get clarification and approval from the point of view of state aid rules from Brussels they were not covered by the scheme. We are not saying that we will or will not get approval. In other words, I am putting a marker down that we do not have approval.

Yes but is there not an ambiguity? Is formal closure of the original marine tourism grants scheme not anticipated?

Mr. Tuohy

We have not actually progressed it.

We are looking at the four cases outside the scheme but the 60 that applied under the scheme were fine-tuned down to 15. Barring the controversial developments which we will discuss shortly, nothing has happened. Has this matter not been badly handled? The original concept of going ahead with tourism flagship projects has been shelved to the extent that even viable projects have not gone ahead.

Mr. Tuohy

Obviously, it was a budgetary decision not to go ahead with the scheme at the time. That does not mean, however, it cannot be reopened or a new scheme put in place. The experience of dealing with the four projects highlighted problems for us and, to be fair, the view within the Department was that we should sort them out because issues around the public good versus the private good were being raised, a matter we discussed at another committee over the summer.

There is an issue about the viability of marinas and the level of grant aid they can receive. As I said, under state aid rules, there is a certain limit. A critical mass is needed. It is a balancing act. We are sorting out the issues involved. The main scheme has been suspended. That does not mean, however, that the Minister cannot reactivate it or launch a new one.

The point I am making is that there seems to be uncertainty about a new scheme and a doubt about the four schemes for which funding has been approved. There is no clear picture as to the formation of policy in terms of the allocation of funding.

Mr. Tuohy

The scheme has been suspended. Funding has been allocated in the Estimates for this year if the projects come through and the issues are sorted out. Obviously, if they are not funded this year, we can look again at the Estimates for next year but that would have to be done at ministerial level and in co-operation with the Department of Finance. A range of issues have been raised on which we are seeking clarity. What looks like a simple scheme and a good idea at the start sometimes does not turn out that way when one goes into the detail.

I have a question for the Department of Finance about the 1994 guidelines which have been discussed at several meetings. I could refer to several instances where there was total disregard. How can the Department stand over the commitment and allocation of funds when there was total negligence in the adherence to guidelines?

Mr. Paul Byrne

A policy decision was taken at ministerial level to proceed with the projects. We operated within the context set by that policy. Once a decision was taken to proceed with the projects, the initial aspect of project appraisal — prior assessment of projects — would not have had the relevance it would have had in other circumstances. That is not to say, however, other key elements such as appropriate project management, post-hoc analysis of how projects turned out and their benefits, did not form a key part. I would not accept that the capital appraisal guidelines did not play a part in this. The relevant point is that a political decision was taken which was, essentially, that the projects should go ahead. Thereafter the other elements of the guidelines would have had total applicability.

Is Mr. Byrne saying applicability was irrelevant once the announcement was made?

Mr. Byrne

That is not what I am saying. The first and obviously important part is whether one proceeds with a project. However, there are other key and critical elements of the capital appraisal guidelines such as project management and the analysis of projects following completion which would have had a role to play in projects such as these. It would not be true to say the entire range of elements of the capital appraisal guidelines would not have applied. Clearly, the first part does not because a policy decision was taken but that is a matter for Ministers. Clearly, the other elements would have had a role to play.

How can one condone the fact that considerable moneys were advanced which were subsequently lost to the taxpayer? It would not indicate much appraisal on the two major projects to which funds were advanced.

Mr. Byrne

The Chairman is asking me to comment on whether a decision should have been taken——

Did the advance of funding need the approval of the Department of Finance?

Mr. Byrne

Formal applications were submitted by the Department of Communications, Marine and Natural Resources, or the Department of the Marine and Natural Resources as it was then known, for the projects in question. Associated with them would have been certain requirements and conditions to which the Department of Communications, Marine and Natural Resources would have undertaken to adhere. In turn, approval would have included elements of conditionality. Some of the conditions would have been that the Department had to be satisfied that the proposals met the objective criteria of the national development plan marine tourism measure and that the payment of grant assistance to the projects would be on the same basis as that applying to all applications under the marine tourism measure of the national development plan. In turn, sanction would have been based on assurances included in the original applications dealing with basic requirements that detailed costings for each element of the project would be made available along with exact details of funding sources as well as detailed engineering and business plans during and post-completion.

Within the context of the policy decision taken by Ministers to proceed with the projects, a number of safeguards and conditions would have been attached by the applicant Department and the Department of Finance in its responses.

Planning permission was not mentioned which is extraordinary given the raft of conditions attached. There was no condition that county planners should be satisfied. One development had to be demolished.

Mr. Byrne

One of the conditions would have covered the submission of detailed engineering plans and drawings for the project, details of foreshore permits, licences required and-or obtained as well as the meeting of legal or planning requirements. All of this was set out in the original letter to which we responded. I do not think it could be said people were ignoring or responding willy-nilly to an empty request.

Can Mr. Byrne explain why one development had to be demolished for non-compliance with planning permission?

Mr. Byrne

The Chairman is asking me to comment on the detailed rolling out of policy, a matter in which the Department of Finance would not be involved. Ultimately, that is a matter for the parent Department. Conditions were included. The Kenmare and Cahirciveen projects have been sanctioned. In both instances different conditions would have been attached.

Would Mr. Byrne consider that it is critical that a planning condition be met to the satisfaction of the local planners before the Department forwards the cheque?

Mr. Byrne

Any development which involves engineering construction must comply with planning requirements. That is a sine qua non with which nobody would argue.

That did not happen.

Mr. Byrne

It should have.

The Comptroller and Auditors General's report highlights the scale of what happened. To be fair to Mr. Tuohy, we are dealing with a situation retrospectively in that the Department has been reconfigured and different officials are involved. I understand from the opening statement that there is large acceptance, even within the legal parameters within which the Department must operate, that matters have gone badly off the rails and that there are severe question marks hanging over what was proposed at the other locations. However, we do not know why that is the case and I am not too sure who will be able to provide an answer in that regard. Was the Department informed prior to budget day 2000 that this decision was being made or was it news to officials on that date?

Mr. Tuohy

To my knowledge — I was not there at the time — it was news to officials; they were not consulted.

Did the Minister of the day send out letters to the promoters of the Kenmare project on that day?

Mr. Tuohy

I will check that. The date was 6 December 2000.

It would be fair to assume that departmental officials were not informed that the provision of the piers in Kenmare and Caherciveen had nothing to do with a political commitment given by the then minority Government to a Deputy in the constituency on whose support it depended.

Mr. Tuohy

The Government is entitled to make policy and officials are obliged to implement it and provide advice. When the decision was made, officials in the Department were asked to implement it. As the Deputy is aware, I am not allowed to comment on political decisions.

I am not expecting Mr. Tuohy to do so. However, I was wondering whether the Department had been informed that there was a political commitment to provide the piers because of the situation in which the Government found itself and the fact that a certain Member of the Dáil lived in close proximity to the area.

Mr. Tuohy

There is nothing on file to that effect. I am not stating discussions did not take place but, as the Deputy will appreciate, I was not in the Department at the time. A ministerial decision was taken to proceed to make the announcement. It is legitimate for Ministers to make announcements. As officials, our job is to implement policy. We were asked to apply the conditions of what was at that stage an embryonic or draft scheme because it did not have approval. We tried to apply it retrospectively. As stated with regard to the Kenmare issue to which the Deputy referred, that would not come within the marina element of the scheme. There is a sub-measure of the tourism measure that would have dealt with matters such as canoe schools, sailing schools, etc., to which it would probably have been more appropriate. We did not have control over that scheme which came within the ambit of the then Department of Tourism, Sport and Recreation. I am trying to be helpful.

I accept that and I am aware of the constraints under which Mr. Tuohy operates. There was a striking statement in his initial contribution in respect of the nature of the difficulties that arose to the effect that "the selection, evaluation and decision-making processes envisaged under the NDP sub-measure were to be objective and independent; these four projects, on the other hand, were subject to very close interest and ministerial direction at all stages of the management process". This appears to indicate that, with this particular set of projects — perhaps it applies to projects in general — it is possible for Ministers to make decisions and have them implemented, in direct variance with the guidelines in place within their Departments and also general Government guidelines.

Mr. Tuohy

We could deal with two issues in that regard. I will refer first to the specific guidelines subsequently produced which were the operational guidelines. The section on evaluation of applications stated the evaluation of projects would be carried out by a project assessment committee with the assistance of consultants who would be charged with carrying out detailed assessments in terms of financial provisions, tourism marketing and technical engineering as appropriate for the project; that the project assessment committee would include members from the then Department of Marine and Natural Resources, Bord Fáilte, the Marine Institute and the private sector; that the projects would receive a scoring in respect of each of the project selection criteria; and that the committee would, following detailed assessment and scoring, rank projects in order of merit as a basis for its recommendation to the tourism product management board. That is the independent evaluation referred to in the documentation and the operational guidelines for the scheme.

There was a series of projects proposed and, to some extent, implemented — some are ongoing — which were not part of the initial national development plan proposals. To a large extent, these do not appear to have conformed to the marine tourism grants scheme. The Kenmare project seems to have proceeded in clear contravention of planning laws. Is it the case that ministerial decisions can be made in contravention of these laws? That appears to be a direct contradiction.

Mr. Tuohy

I am not sure whether that is a statement or a question.

It is probably a statement. I will leave it in those terms.

Mr. Tuohy referred to consultants being hired or sought to produce reports in respect of each of these applications. In terms of the project at Kenmare, was a hydrological survey sought from the promoters or was one conducted by the Department?

Mr. Tuohy

I will refer first to the guidelines applied. The normal practice is that the various studies and evaluations required — Paul Byrne referred to this in respect of the capital appraisal guidelines — are carried out and that the foreshore licences are received with the application. The guidelines specifically state the latter must be the case.

On the Kenmare marina project, approval and planning permission were given. However, it was not, to my knowledge, constructed in accordance with planning permission. The application for the first phase of the grant was made by the applicants. They submitted the planning approval which they had obtained. They did not state they had not built in accordance with the planning approval. That issue was clarified at the committee's meeting in July, at which the Chairman was present.

I am not referring to the planning issue, with which I will deal. I inquired about hydrological surveys. In the context of marinas, piers and marina schools, I would have thought that the Department would have been obliged to consider the position vis-à-vis water availability and access to piers.

Mr. Tuohy

We have our own marine engineers who inspected the site subsequently. These individuals have an inspection, advisory and construction role. There is nothing on file to indicate whether hydrological or any other type of surveys of the sort to which the Deputy referred were carried out. Those responsible for the Kenmare project had planning permission to do certain works. I presume that in various consultations the foreshore lease issue would have arisen. The Department's inspectorate would have been involved in that regard.

I asked about the hydrological survey because information supplied to me from Kenmare — it probably relates to the planning objection at the time — indicates that an independent marine engineer who was not employed by the Department or the promoters carried out a survey which showed that the twin piers were dried out at certain low tide times and that usage could be severely restricted. The survey also indicated that satisfactory water depth would not be available until several hundred metres into the bay. When that kind of basic information is not assessed and decisions are made in its absence, serious questions arise.

Mr. Tuohy

I agree.

The Department with responsibility for the marine did not ask questions about water availability.

Mr. Tuohy

The Deputy raised a number of issues. I do not have in my possession the report to which he referred. I have not discussed either hydrographical or hydrological surveys with my engineering colleagues but I can obviously communicate with them when I return to the Department and check the position.

I outlined how the Kenmare marina project obtained approval. The promoters also obtained planning permission from the county council but did not build in accordance with it. Our engineer subsequently travelled to Kenmare to inspect the site. When people apply for planning permission in respect of a foreshore or any area of that nature, the Department will be involved and will provide an assessment. As the Deputy has information which I do not possess, I am not aware of the detail to which he referred.

I refer to the issue of planning permission. Mr. Tuohy stated the Kenmare developer had received planning permission from Kerry County Council but the planning process had not been exhausted because an An Bord Pleanála decision was pending. Is it Government policy to make grants available in advance of the completion of the planning process?

Mr. Tuohy

There is a timeframe from the end of planning permission approval that allows people the legitimate right to make an appeal to An Bord Pleanála. That is still part of the planning process. Planning permission was granted in February 1998 and the foreshore lease approved in May 2001. On the specifics, planning permission was granted. The developer stated when he appeared before the Oireachtas committee in July that he did not build, for different reasons, in accordance with planning permission. When the inspectors travelled down to inspect the site later that year, they found this and we stopped payments. One payment had been made but we stopped subsequent payments when we realised the project was not constructed in accordance with planning permission.

This was the first scheme of this type in which the Department was involved. There was not a history or track record similar to that of the Department of the Environment, Heritage and Local Government where inspectors are doing this work all the time. This was the first scheme of this type in which our engineering staff were involved and the division had not asked for an inspection before the first batch of money was paid because it had the documentation as it saw it regarding planning permission and so on. It was not stated in the letter that the project had not been built in accordance with planning permission. The officials in the Department acted in good faith. They had a letter outlining that planning permission had been granted and so on. They were not aware that construction had failed to take place in accordance with planning permission.

Not only did it fail to meet planning permission, it had an ephemeral relationship with the marine or a marina. It was a large building that could have been used as a guesthouse or restaurant and bore no relationship to what was proposed.

Mr. Tuohy

It is not a marina in the normal sense. It could not be made to fit within the guidelines for the system I have outlined. It is more to do with another element of the tourism sub-measure dealing with canoe and other sailing schools as I made clear in my statement. This could not be made fit within the tourism sub-measure with which we are dealing — marine access.

However, the retention was subject to the planning process and another objection to An Bord Pleanála which was upheld.

Mr. Tuohy

I gather An Bord Pleanála did not launch its investigation until after the payment of the grant was made. This came up the last time I appeared before the committee on the same day or the day before it and I clarified the situation at the time. There was a subsequent discussion in July before the recess with the Joint Committee on Communications, Marine and Natural Resources.

Mr. Tuohy referred to a decision in October 2002 but the Department still paid more than €300,000 in December 2002 after planning permission had been rejected.

Mr. Tuohy

Formal approval was given on 24 January 2001. The payment was made on 10 December that year.

Mr. Tuohy's statement gives the date as December 2002.

Mr. Tuohy

I am sorry, 2001 is correct. That is a misprint.

That was prior to the rejection. The Department with responsibility for the marine has been subject to many reconfigurations under several Administrations in recent years but there have been similar issues in the recent past surrounding the construction of marinas using public money. I refer to the Kilrush project and others on the River Shannon. Were lessons learned by the Department regarding the future construction of marinas and how they should be supported?

Mr. Tuohy

Yes, I have studied the committee's report on the Kilrush Creek marina. That was a tourism rather than a marina project, even though it involved a marina. The Comptroller and Auditor General's comment was that the project had halved in size but doubled in cost between the initial and final phases. There is also an ongoing subvention. Marinas are difficult to sustain as is highlighted again in this case. We carried out a business analysis of the project. These processes are put in place, whether it is under the capital appraisal guidelines or the operational programme, to give some level of comfort that projects are assessed to ensure they are sustainable and will not be a call on the Exchequer or taxpayer again.

Part of what we were trying to do was to retrospectively apply the guidelines to the four specific projects. It was nigh impossible because the fundamental tenet was there should be a comparative competitive process to rank them upfront. That did not take place because there were four flagship projects. The initial approval was granted without the evaluations taking place.

Mr. Tuohy has referred several times to the confusion about who is responsible in Government for marine facilities. He has mentioned the Departments of Communications, Marine and Natural Resources, Arts, Sport and Tourism and Education and Science. Will this confusion continue? Has an effort been made to rationalise who should be responsible for these decisions? If a development includes a marina, the Department of Communications, Marine and Natural Resources should be responsible.

Mr. Tuohy

Not necessarily in that it would have an involvement. These were tourism projects. This project came under a sub-measure of the tourism Vote dealing with marine. Other elements of the tourism measure deal with outdoor measures and the schools to which I referred. The objective was to increase tourist numbers. That was the reason for the support mechanism. From the Department's point of view, there was a Department with responsibility for tourism and this was its measure. The programme involved sub-measures, one of which dealt with marine tourism in which we had an involvement. It was the first time the Department had become involved.

These were the first four projects. They were not part of the scheme but the first four before it was announced. For instance, the broadband programme is part of the economic infrastructure programme driven by the Department of Enterprise, Trade and Employment, of which my Department is a subset. The forestry programme when it came under my Department was a subset of the Department of Agriculture and Food.

There is a higher level issue and then a number of sub-measures. There must be cross-departmental collaboration as that is the way government operates. We are involved in many aspects of the marine, including piers and harbours, but marina projects cut very much into the tourism agenda. The objective of the project was related to tourism.

Unfortunately, cross-departmental activity when encountered by this committee often means Departments crossing each other rather than working cohesively together.

My final question relates to the objective to increase tourism numbers. The statement indicates that in regard to the outstanding schemes, there is a likely to be a heavy subsidisation of private individuals in terms of access to berthing space in each of these areas. The figure of €48,000 per berth was mentioned. Obviously this will be a factor in the final decision on the outstanding projects. Is it fair to say that these projects cannot succeed and have not succeeded in tourism objectives, and the net affect of them has been State subsidisation of private interests?

Mr. Tuohy

There has not been State subsidisation of private interests.

There is a danger this may happen.

Mr. Tuohy

That was the issue to which I referred. I also raised the issue of public goods versus private goods. We are grappling with this issue. In order to get some level of funding upfront for the two projects, Roundstone and Rosses Point, the individuals were given the option of leasing the berths for ten years. We looked at a ten year live project. The berths would be leased for ten years and the money paid upfront. In some cases €30,000 was paid upfront, which was the capital. An annual rental continued to be paid in respect of Roundstone for the use of the berth, but this was not the case with Rosses Point. We were in discussions with them about this because the viability of the project is very important. The capital is needed upfront in order to invest and one needs the ongoing maintenance. This is why there is a difference between the projects. If there is an upfront payment but no ongoing funding, there will be no money to maintain the facility. This means revenue will be low because only berths for tourism will be left at that stage, which is not viable.

We have been totally frank in regard to the numbers. When there are small numbers of tourists — these projects come under a tourism measure — there is a problem, and one will end up funding the people who have berths. There is a ten-year lease in the case of Rosses Point and Roundstone, one of which reverts back to the company at the end of the years. There was not the same certainty in the second case but we had discussions with them. If they reverted to the individual, the first proposal was that the individuals could trade them. In that case, they would be private goods. One needs critical mass in this instance and there should be investment upfront. The developer needs to put up money. In Sligo we considered getting the local authority involved. We got the local authority involved in Cahirciveen and it is putting funding in place. As well as funding, there was an element of expertise from the local authority. When we had this discussion in July, there was a debate about whether the local authority in Sligo could or could not get involved. This has been clarified. It can get involved if it can pass a motion through the county council. We would seek a commitment on the viability of the project for ten years.

On the local authority side, presumably it would have to grapple with whether there was a danger of losing money. These projects are not big money spinners. They have a spin-off in the community, particularly from the tourism point of view, but the question is quantifying it. One can put in some figures, but the whole cost-benefit analysis or the economic analysis is not a science. There is an element of science involved. There is also an art in it.

What we have been trying to do is deal with the constraints the Oireachtas put on us by following the capital appraisal guidelines. We must follow the operational guidelines under the tourism measure. These are the ones that have State aid clearance, and this case is similar. I hope we will be in a position to go back to the Commission stating that they have complied with the guidelines. The other element relates to the viability of the project itself. In other words, will someone have to subvent it going forward? The State aid issue is very important because the level of grant aid applied for is very high. If it goes over the State aid limit, there is a problem. This is a hugely difficult balancing act.

I am taken aback by the opening statement of the Secretary General who referred to close ministerial involvement at all stages. As Accounting Officer, when did he shout stop?

Mr. Tuohy

As I explained, I did not get involved in the Department until June 2002.

When did the Accounting Officer for the Department shout stop?

Mr. Tuohy

It is clear from the files and the report of the Comptroller and Auditor General that the officials in the Department raised their concerns, but the Minister has the right to give directions. In these cases, it is quite specific in the report of the Comptroller and Auditor General that directions were given on the various approvals en route. To be fair to the officials involved — I was not there at the time but I have examined the files in detail — if they are directed to do something, they will follow that direction, because they are civil servants.

I understand that. However, the essence of the Committee of Public Accounts is to deal with the Accounting Officer who has a specific responsibility. Ministers have a responsibility and the officials who appraise projects have a responsibility. The Accounting Officer has a specific role which is separate and distinct. It is precisely that role I want to pursue. I will go back to my basic question. I understand that if an Accounting Officer is not satisfied, he or she can give his or her reasons in writing to the Minister. Is there evidence on the file that the Accounting Officer of the Department said that this should not proceed further?

Mr. Tuohy

It is not a case of saying stop. One must put one's case to the Minister.

There are two different issues. That is giving advice to the Minister. The buck stops with the Accounting Officer on Accounting Officer issues. I am not talking about officials advising the Minister and being happy or unhappy with his decision. If every decision is a ministerial decision, we would not be talking to Accounting Officers. They have specific roles. I read the report which is a catalogue of extraordinary situations. I was waiting to see where the Secretary General as Accounting Officer documented that the project should not proceed, and he received a specific direction from the Minister to reject his advice. I understand Ministers give directions, but I am talking about a specific role as Accounting Officer.

Mr. Tuohy

There is a general provision, which is a nuclear deterrent.

What is presented to the committee merited that nuclear position by an Accounting Officer. What we have been presented with today is a damning presentation of what happened. I know Ministers come and go but the public relies on senior Accounting Officers and civil servants, which is their legal right. Mr. Tuohy referred to the nuclear option, but somewhere along the line, he is expected to exercise it.

Mr. Tuohy

If Deputy Fleming refers back to the files and what I said today, I made it clear that while certain things have taken place, progress has not been made in other areas. In July, I sat in this room before committee members who were barracking me and having a go at me for not progressing fast enough. I outlined clearly to the committee that I take my role as Accounting Officer seriously. I also made it clear that I am expected by the committee and the public to follow through on any appraisal guidelines. The Deputy can read the transcript of the meeting to validate what I have said.

To go back over the issue, decisions were made and ministerial directions were given. This is on file and the Comptroller and Auditor General also made that case. We then tried to apply the guidelines retrospectively. Only two of them have been partially dealt with. They are not finished yet. The other two are being debated and discussed to see if they can be brought around to comply with these guidelines. What Members will see from this is that while the system works from the point of view of dealing with a direction to do certain things and at the same time making a case to say why one must comply with A, B, C and D, trying to retrofit them at the same time in order that they could comply is very difficult. It is squaring a circle.

Two of the projects have not been approved and one of them has been part-approved. The final payment has not been made on the latter and discussions are ongoing. We are about to start evaluating the Caherciveen project. All I can do is explain where I am at and where we are at as a Department. I can say that I am, from my own involvement and that of both the current and previous Ministers' involvement, very supportive of doing this and bringing it to a head to see what can be done with it within the existing ambit and constraints.

Mr. Glavey will clarify the matter.

Mr. Glavey

The Chairman wants me simply to clarify that the file does show quite clearly that there were ministerial directions.

I am quite clear about that. Ministerial directions to approve grants were referred to on several occasions. The Oireachtas has ample opportunities to challenge the Minister either at the various committees or in the Chamber on these issues and through several debates. The role of the Committee of Public Accounts is to specifically deal with Accounting Officers which is separate. We, as Members of the Oireachtas, can challenge issues and ministerial directives separately but our role here specifically deals with Accounting Officers. It looks as if, despite all of the reservations and grave concerns that people had, Accounting Officers did not apply the necessary brakes in these situations.

The committee would, or I would as a member of the committee, say that if situations are as bleak, as people will feel they have been presented to us, Accounting Officers should examine the powers and authorities. They should not just say that the Minister wanted it done. Accounting Officers have specific rights and legal powers. I have not seen it exercised in this case. I see the washing of hands of it by the use of the excuse that the Minister directed it. That is an insufficient excuse for an Accounting Officer and that is the essence of what I am saying.

Mr. Tuohy

I have not authorised anything in the two and half years I have been in this position. There have been no payments on the two projects in question, Roundstone and Rosses Point. Caherciveen was progressed to completion and we are now evaluating it. We stopped work on Kenmare as soon as the planning issue or problem was discovered and there was no payment made.

The Deputy raised an issue and he got to the heart of how Government operates and inter-relationships. I have two distinct roles, one as a Secretary General with responsibility to the Minister and the other is as an Accounting Officer where I am responsible directly to the Parliament.

That is why Mr. Tuohy is here today as the Accounting Officer.

Mr. Tuohy

Absolutely, and I totally accept that. In any of the situations, there is a balance between moving and doing things on policy and whatever and the responsibility I take as Accounting Officer for the propriety and regularity of the way money is spent. That balancing is done every day of the week.

This case pre-dates my involvement but I do not want to wash my hands of it. Certainly the files were quite clear to me when I went through them, and I think the Comptroller and Auditor General has vouched for this, that every effort was made by the individuals concerned, including the Secretary General at the time, to make the Minister aware of some of the problems. If the Minister then decides to go ahead and do things, that it is his prerogative at one level, but there is a facility, and the files are there, for the Comptroller and Auditor General to report back to this group and to the Oireachtas generally. That is the accountability system.

On that, is the Secretary General aware of any situation where, exercising that right, an Accounting Officer said "No" and sought a specific written direction from the Minister? Are those rights ever exercised? We could all talk about working relationships and keeping things cool but people have different jobs to do.

Mr. Tuohy

In this case the Deputy will see there were specific directions. The letters of approval were issued under the direction of the Minister. That is in every one of the cases we have talked about and I think the Comptroller and Auditor General has commented to that effect. I can be accountable when my Department and my officials do things under my direction or that of the Minister. However, if they bring the Minister's attention to something that they disagree with and he overrides them and directs them, then they are obliged to follow those directions unless the action is illegal. However, the accountable for that is a ministerial accountability.

I understand that, but the Secretary General seems to gloss over the exercising of power that an Accounting Officer has in that situation. If I were to follow the line of argument that if a Minister makes a direction, the official must follow it, what is the role of an Accounting Officer? He or she has a role.

Mr. Tuohy

In my 21 years' experience in the Civil Service, I have rarely seen situations where an Accounting Officer and a Minister had a stand-up serious debate. The procedures are very clear. The nuclear option is where the Secretary General, as the Accounting Officer, writes to the Minister and gets a direction. He then writes to the Secretary General of the Department of Finance and to the Comptroller and Auditor General to whom he also passes the file. That is what the guidelines state. To my knowledge, that option has been rarely used. It is more a threat and a systems check than anything. Most, if not all, of the Ministers I have dealt with are very reasonable people and you can sit down and deal with them. It is not necessary to take that line. The system is there to provide that protection.

The Deputy asked me whether I had to use it. I am thankful that I have never had to use it and I hope I never do. However, the system exists and there are scaled versions in the sense that, depending on the scale of the issue, one gets the direction and the Minister gives directions, that is very clear, the files are very open and the Comptroller and Auditor General reports on them. It is still a very grey area in the sense of public policy.

It is a grey area because Accounting Officers have funked using their responsibilities. The Secretary General said that it is a systems check but it has never been tested to any great extent and he has no awareness of it having been. A Secretary General could do it without falling out with his Minister. My difficulty with what I have heard today is that the Accounting Officer did not invoke his powers. Mr. Tuohy's opening statement was a display of wringing and washing of hands. He said the issue was a shambles but the Minister directed it. Mr. Tuohy's report was an awful presentation of the situation. If it was as awful as stated in his opening statement, then there is a case for Accounting Officers taking their courage in their hands prior to getting to this stage and possibly exercising the systems check that Mr. Tuohy said Accounting Officers are entitled to use. My general statement is for Accounting Officers. It is a bit late to present such a report when an Accounting Officer could have taken serious action earlier.

To be fair, Mr. Tuohy was not the Accounting Officer at the time.

No. I am not referring to Mr. Tuohy personally. I am referring to Accounting Officers in general. Does Mr. Tuohy understand what I have said as a Member of the Oireachtas?

Mr. Tuohy

I know where the Deputy stands. I want to be fair to the officials involved. The bottom line is that it is not an easy situation for any official to be in when they are getting directions and the Deputy knows that.

Mr. Tuohy

It is a very difficult situation. Civil servants have a tremendous respect for the position of the Minister and the Government. Every civil servant will endeavour to work with Ministers to do things. If there is a conflict, obviously the existing law and regulations, including the Appropriation Act, are there to protect that and to make sure that the Accounting Officer is seen to be independent in his or her exercise of that function. It is not something that is done every day.

I would like to see it being done some day. That is all I am saying. I would love to know when it will happen.

Mr. Tuohy

I can recall one instance, not involving myself thankfully, concerning a set of regulations. In the end the Government did not sign off on them because the Accounting Officer drew its attention to a potential liability. I used the phrase "a nuclear option" and I think the Deputy knows what I meant by it.

Mr. Tuohy

I accept what the Deputy has said. It is a balance between a working relationship and, what we have here, officials saying if they are given a direction, they will do something. What the Deputy is saying is that the next phase is to pass the file to the Comptroller and Auditor General. In fact, he did come in on it subsequently. One cannot physically stop the Minister from doing this.

I accept that. I accept also that an Accounting Officer who exercises his right and takes that route may not succeed in stopping the process. However, based on the one example Mr. Tuohy has given, it stopped the process. My point is that if matters were as bad as they appeared, there may have been a case. Perhaps everything is not as awful as it appears to read at this meeting. The point is people should not be afraid.

Mr. Tuohy

I think what the Deputy is saying is that individuals should feel they have the right and the support of this committee to do that.

I am saying that Accounting Officers have powers and should not be afraid to use them. I encourage them to exercise their powers.

Mr. Tuohy

I know.

Mr. Tuohy referred to the Minister's directions and the Comptroller and Auditor General's report refers to the grant approval. With regard to Caherciveen, the report states: "The Minister approved a grant of €2.54 million on 7 June 2001, the letter of approval being signed by a Department official, on the direction of the Minister." I understand the difficulty that the report states that the letter was signed by an official on the direction of the Minister, but that the Accounting Officer did not seem to be part of that process.

I have two points to make with regard to the Comptroller and Auditor General's report. I understand the difficulties involved in carrying out the assessment because decisions had already been made. It was a matter of trying to fit the criteria to the decisions after they had been made. Under the heading "Project Assessment in the Department" relating to Kenmare the report states: "The Division did not undertake any assessment of the overall viability of the project and made no recommendation regarding approval." No recommendation regarding approval was made in the case of the Kenmare marina. However, in the case of Caherciveen the report states: "For those reasons, the Division was unable to offer its approval of the business plan or issue a sanction for funding."

Can Mr. Tuohy explain the difference between these decisions? For Kenmare the Department made no recommendation regarding approval but in the case of Caherciveen it was "unable" to offer approval. I detect a subtle but significant difference between the two approaches. Can this be explained?

Mr. Tuohy

Let us go over them. The first approval on Kenmare was announced on 6 December 2000 and formal approval was granted on 24 January 2001, on the direction of the Minister. This was a little over a month later. The file shows the Department did not undertake any assessment of the overall viability of the project and made no recommendation. In other words, the Minister ultimately, as we can see from the legislation, is the authority. All we can do is provide advice. It is up to the Minister to make the call and he may or may not take on board the advice of officials. Sometimes they will not take officials' advice on board and sometimes they will. The situation is that the Department did not make any recommendation, but the Minister made a decision.

Why, if the issue was as difficult as outlined to us today, did the officials not make a negative recommendation and allow the Minister make his call afterwards?

Mr. Tuohy

If the Deputy examines the file he will see the Comptroller and Auditor General noticed that also.

Why is that not done generally?

Mr. Tuohy

Generally the situation is that officials outline the difficulties and state where problems exist. However, it is ultimately the Minister's call as to whether he accepts their advice. Perhaps it is the subtlety of the language that is used, but the words "on the direction of the Minister" mean exactly what they say. The Minister gives a direction to approve something. This goes back to the broader issue the Deputy raised earlier that I can be accountable for things I do under the direction of a Minister. However, we cannot comment collectively on policy issues. The issue is that if Ministers give directions to officials, there is political accountability for that. There is a grey area between my and the Minister's accountability. It is difficult for me to be accountable for something with which my staff has said there is a problem. That is the issue the Deputy has raised so eloquently.

There is a major conflict there with regard to policy.

I have one other issue I wish to raise. Mr. Tuohy referred in his opening statement to the issue of the number of private berths that would be available for tourism purposes. Could some of those berths not be let for tourism purposes? They may be private, but most tourism resources are provided by the private sector. I was amazed that a distinction was made and that it was considered that if a berth was private, it could not be used for tourism. Almost every hotel and bed and breakfast in the country is private. Will Mr. Tuohy explain the issue and the difference here?

Mr. Tuohy

Let us take a hypothetical situation as an example. Let us suppose we want to build a marina and we decide we want money from the various people who will be beneficiaries and that 50% of the berths will be private berths and 50% for tourism.

Explain the difference between private berths and tourist berths.

Mr. Tuohy

I will return to that in a moment. Suppose then, like in a golf club, private berth owners are asked to pay a ten-year upfront fee. At a cost of €3,000 per year, that amounts to €30,000. However the private owner then says he will not pay any rental for the next ten years, which means that in paying the €30,000 all he has done is pay his rental upfront. He owns the berth and can berth his boat on it for that time meaning the berth is not available for tourism purposes.

Can the owner not sub-let the berth since it is a berth for which he has paid?

Mr. Tuohy

It is the owner's call.

That is the point I am making. Is there not a potential for tourism where owners want to sub-let?

Mr. Tuohy

Who is the beneficiary then?

The private owner, but tourism and the country benefit.

Mr. Tuohy

Who has paid for it? Does the Deputy not see that when I give an owner a grant for a berth, I have paid 80%, 70% or 50% of the cost of the berth. The owner has paid a capital upfront cost for the lease of that for ten years or in some cases perhaps owns it fully. If he then leases that to some tourist, the money does not come to the management of the marina.

The money is coming into the general tourism project.

Mr. Tuohy

The marina must be maintained. One of the problems with marinas is the ongoing costs. If all the money is taken upfront, there is no money due in ongoing rental and the whole system collapses. The system must be maintained. State aid allows for private sector development of this type, but it is a lower grant aid. I think it is approximately 65% for a small or medium enterprise, SME, in the Border, midland and western, BMW, region whereas it is 75% for a public operation. The whole issue is that this is about a tourism measure. It is about bringing in tourists and not about giving berths to locals to berth their boats. That is a totally separate scheme.

I conclude by reverting to my opening comment. I look forward to Accounting Officers taking their courage in their hands more frequently in the interests of the taxpayer. They have a specific responsibility in that area and the world will not fall in if they choose to fulfil it.

Mr. Tuohy

I look forward to the support of this committee when I do it.

I do not intend to go back over old ground in this sorry debacle. I thought the "Yes, Minister" syndrome always worked. Obviously it did not on this occasion and the Secretary General managed to get around the Minister some way. We were extraordinarily lucky in 2000 that the Independent Member for Kerry South did not decide he wanted to build a nuclear plant or build a lighthouse out in the middle of County Kerry because it appeared he got whatever he asked for. It raises the question as to who controls the show in the case of a minority Government because that is what happened.

I will not labour the point but I cannot understand it and it comes back to what Deputy Fleming said. The Minister obviously ran with this. I do not know if it was fear that made him run but it was obviously on foot of a Government decision. I assume that is the reason the Secretaries General in the Department of Communications, Marine and Natural Resources and the Department of Finance, stayed well away from it. They knew this had to be done. This was a shotgun wedding if ever I saw one.

With regard to a small school in any part of the country looking for an extension to house a resource teacher, for instance, officials in the Department of Education and Science would spend many hours evaluating the project and that is nothing to what the Department of Finance would do; it would examine the project with a fine comb. However, in this case the Department was able to issue a cheque for a project that had to be knocked because it did not have planning permission. I do not know what sort of evaluation was carried out by the Department of Finance.

I suggest to Mr. Byrne that whatever evaluation is carried out, it is a remarkable turn of events that the Department of Finance would allow a cheque to be paid to a private developer in the County of Kerry for a project that was obviously an unauthorised development. How could that have happened? It would be a different matter if the cheque had not been issued because without the money being paid, people would feel quite lonesome, no matter what they were up to. However, if they had the money in their pocket, they would have the comfort they set out to get. Why did the Department of Finance allow the cheque to be paid?

Mr. Byrne

I have to reiterate some of my earlier comments because they are relevant to this question also. First, a policy decision was taken to proceed with these projects. That is a fact and it is the prerogative of Ministers. The second point——

Did your Minister know about it?

Mr. Byrne

There was a general announcement in the budget in December 2000——

So obviously he had to know——

Mr. Byrne

It was known that money would be provided for a bunch of projects. I stand to be corrected but I think there may have been a detailed announcement about the four projects by the Minister for Communications, Marine and Natural Resources on budget day. The Minister for Finance's Budget Statement was fairly short. It stated there would be money provided for marine leisure projects. The amount of money was mentioned and that was pretty much it.

He knew on budget day what it was intended for.

Mr. Byrne

Yes. The Department of Communications, Marine and Natural Resources subsequently formally submitted applications for the approval of two of the individual projects, the two mentioned earlier, to the Department of Finance. As I said earlier, these requests would have been accompanied by certain assurances about process and so on. The sanctions also would have entailed certain conditions.

When that file was sent to the Department of Finance——

Mr. Byrne

It would not have been a file; it would have been a request, a letter.

I assume one of the most fundamental considerations for any project such as this is that it would have full planning permission.

Mr. Byrne

At the stage at which approvals was sought, they were seeking approval for the expenditure of the money and to proceed. It would have been written into the conditions — and in fairness to the Department of Communications, Marine and Natural Resources, it would have been very conscious of this and would have listed it as one of the conditions that would be pursued. I mentioned it earlier when I cited the conditions that were attached. Planning permission was specifically mentioned, as were a number of other conditions. There would have been a very clear view that this was not simply just grand under all circumstances. People realised that certain criteria had to be adhered to and those were set out either in the letters received from the Department or in the sanctions which issued.

The Department of Finance does not hand over the cheques. The Department of Finance sanctions the project. The two projects in question were sanctioned, on the basis that there was a policy decision to proceed with them, but sanctioned with a number of conditions that I mentioned earlier. I do not think it is quite a matter of saying that the Department of Finance approved the issuing of cheques in cases where either we knew and disregarded or we should have known that there were difficulties associated with planning and so on. That simply was not the case.

I suggest that the Department of Finance should have known at least part of it. Alarm bells were ringing or should have been. If one comes back to the Secretary General for a moment, I assume your predecessor was very upset about this, according to what——

Mr. Tuohy

It might be helpful if I come in. To be fair to the Department of Finance, it would not be involved in the level of detail. Planning permission was submitted with the application, in other words, the individual and the company submitted the planning permission they had received with the application for the funding. It was taken on face value that the individual had built in accordance with the planning permission. There was not a statement submitted with it that it was not constructed in accordance with the planning permission. The cheque was released on the basis of the documents as received. Subsequently one of the inspectors inspected and found it was not built in accordance with planning permission. The local authority raised the issue first and then one of our own inspectors went down. This was the first time the Department of Communications, Marine and Natural Resources had dealt with projects of this kind. The Department of the Environment, Heritage and Local Government deals with grant applications every day of the week. The lesson we learned from that was that in future, nothing goes out until somebody goes down and checks the project. In other words, one does not just take things on face value. There is a presumption, and there was at the time, that the individual submitting the application had built in accordance with the planning permission. I do not think it an unreasonable assumption to make. To be fair to the Department of Finance, it would not have been aware of any of that situation.

I suggest to the Secretary General that even for the smallest of projects such as the essential repairs for the elderly, which might cost only €4,000 or €5,000, the county councils will send out an inspector to confirm it has planning permission and that the work has been completed, yet the Secretary General is talking about jobs costing €1 million that have not been inspected. This story gets worse as it is being told. The Secretary General is now telling the committee that the Department did not think it worth its while to send an inspector down to Kenmare to see what exactly was being built.

Mr. Tuohy

I have outlined the situation to clarify it. This was the first grant scheme of this type that the Department was doing. Under the conditions, planning permission had to be received. One of the administrators called to the site in December 2001, before the end of the year and confirmed the building was there. He was not the local engineer.

What was he doing there so?

Mr. Tuohy

He went down to see that the building was there but, to be fair to him, on the issue of planning permission, one would want to measure and make sure. The problem is that if one receives a certification from somebody saying they have complied with conditions and here is the planning permission and they go off and build not in accordance with the permission they have been given, it is very difficult and it entails a great deal of work to check that document. There is a normal element of trust among people. If society has gone to such a stage that one cannot trust the people who are submitting documentation, that is a reflection on the society. From the point of view of the Department, as a result of our experience there, the process now in place is that from now on the engineers visit sites and inspect them. A learning process was taking place as well. This was the first of these projects in the Department. To be fair to the officials in question, they had the documentation. However, they did not check whether the planning permission granted was in accordance with——

When they saw the building, they decided it was fine. I would like to take it a step further. I agree with Mr. Tuohy in one respect. I hope this debacle will not give a bad name to the future development of marinas. There is a place for marinas in the development of marine tourism, by and large. There is not much point in spending millions of euros on the waterways of Ireland if people cannot get onshore. That is what it is all about. There is not much point in having millions of gallons of water passing by remote rural communities if people cannot access towns and villages. I hope the political messing that took place will not cause an unnecessary uproar.

I hope this will not tarnish what is likely to happen when guidelines are drawn up for public good business. Marinas are terribly important in most circumstances, under proper supervision. It is important to ensure that berths are available so that private people who own boats will go to certain areas. One has to do such things if one is interested in pursuing a spatial policy that encourages people to go to under-developed regions. Such things have to be done in a very transparent way. That was not the case in this instance. I wish to consider what has been lost so far. What has actually been paid in the case of Kenmare?

Mr. Tuohy

First of all, nothing has been lost. Money has been paid and money is due. Further moneys will not be paid until everything has been sorted out — that is the point. In response to Deputy Fleming's comment earlier, I wish to state that more than €333,000 has been paid, from a total of €753,000 which had been approved. Just over €400,000 is outstanding and will not be paid until all the other issues have been sorted out. The developer said in July that he would fund any retro-fitting or necessary works to bring the thing into line with the planning permission. The Department will not pay for that. The developer made quite a clear statement.

I spoke earlier about the outstanding issues relating to State aid, which will have to be investigated, as well as the other conditions. I would not say that anything has been lost, but money has been paid. The developer will have to pay much more of the cost of the large development which is proceeding at present. The Department will have to be satisfied that all the conditions are being complied with before it pays for any more of it. It relates to the issue raised by Deputy Fleming earlier. I assure the committee that the Department took action as soon as all the problems came to light.

I apologise for leaving this meeting earlier, but I was due to speak in the Chamber. I appreciate that most of the issues have been dealt with in my absence. Deputy Connaughton's final point was that there is a great need for facilities of this nature. Marinas were probably the flavour of the month in 2000, just like golf courses a couple of years before that. I would not like the scheme to collapse. I know that it was brought to a halt in December 2002 and that approximately 60 applications have been received. Does Mr. Tuohy see any likelihood of the resumption of the project?

Mr. Tuohy

There are two issues. The NDP scheme finishes in 2006. That does not stop the Exchequer from doing things, as long as it complies with the issues I discussed earlier, such as State aid rules. First of all, we want to deal with four we have at present. The decision whether to continue the scheme in the future will be a political one, taken by the Minister. More than 15 of the original applications were ranked, in order to move on to the next phase. A budget cut was imposed on it, so no funding was available. The scheme was put in abeyance. The scheme could be reactivated or a similar one could be put in place.

Deputy Connaughton said there is a certain rationale in having marinas throughout the country because they provide access to the sea, etc. A debate has started, however, about issues such as funding and looking after marinas. What is the public good in this regard? How does tourism benefit, as opposed to individuals benefiting by having the State pay for their boats to be moored? That is a balance. Part of what we are doing is to try to clarify that. That would be a precursor when doing any new scheme.

How much of the €25.5 million that was earmarked in the original budget speech has been spent? Is some of it there? Has it been withdrawn totally?

Mr. Tuohy

The moneys we have discussed here which have been paid out amount to very little. As far as I recall, the funds were transferred to other tourism measures under the mid-term review. The money has not been lost to tourism, but it has been lost to marine tourism.

Deputy Connaughton said we have spent a great deal of money on the promotion of the waterways, fishing, yachting and the general watercourses. I would hate us to lose some impetus because of this issue. I am trying to figure out who is pushing the buttons for County Sligo. Apparently one individual looked after County Kerry. I can figure out for myself what was happening in the case of Roundstone. I am worried about County Sligo.

As the Deputy is aware, nothing has come to County Sligo, unfortunately.

Development companies were mentioned in two of the cases. Were the companies private? I appreciate that the first one involved a private individual in Kenmare.

Mr. Tuohy

Caherciveen Development Company was the development company in the area. It was concerned about creating jobs in the area, etc. A mixture of individuals and community-based——

Was it similar to the SFADCo arrangement?

Mr. Tuohy

SFADCo is a semi-State agency. The companies were not semi-State organisations, but they were community-based. In some ways, one is dealing with the issue of encouraging communities to take ownership of their future. It is about empowering them. Part of it relates to the provision of funding. The Department insisted from a management point of view that Kerry County Council should be involved in it. I think the council also insisted on that. An official acted on the management board and the advisory board on behalf of the Department. There was an issue about the capability within the system to deliver it. We will publish the evaluation of that when it has been finished.

I wish to discuss the other projects. An issue arose in Roundstone about the nature of the company — whether it was community-based or not-for-profit. It was registered as a company, but there was some issue around whether there was share capital in the company. We were clarifying an issue with our legal people and their legal people because that would have an impact on the type of body it was. The Sligo project was a joint venture on the part of the yacht club and Sligo County Council. As I said earlier, the county council will have to pass a motion to allow it to get involved in such a project, to support it and to give the Department a commitment. I gather that the county council is willing to do that after the package has been put together. There is a mixture of the different types.

Most members of the committee are involved in community development projects and matters of that nature. I do not want to see a repeat of the problems associated with projects such as the Jeanie Johnston and the Blennerville railway, which are discussed by the committee year after year. Our colleagues will speak about these projects, particularly Kenmare. They may ignore the other three projects to some extent because they are community-based. Does Mr. Tuohy believe that guidelines can be laid down for the involvement in such projects of local authorities and the groups we have mentioned? Do we need to put a new set of guidelines in place? We should not allow the local authority to become almost bankrupt. The authorities in Tralee, for example, are in big trouble because they took the initiative we have discussed. I was concerned about things done by SFACDo over the years, but it seemed at times that it had ministerial protection. It seemed to be working under guidelines by getting sanction internally. Do we need new rules that will work?

Mr. Tuohy

The operational guidelines in place are good. If implemented properly, many of them are very sensible. There are guidelines for privately funded schemes, local authority schemes and community-based schemes. Different grants in the form of State aids are allowable for different types of structures. We must be aware of State aids because of the possibility of somebody taking an action against us since we are giving a competitive advantage to an area and pulling investment out of another area. On this, one is competing with, say, private developers elsewhere in the country. There is a balance but it is covered in the guidelines. I do not think we need new guidelines but rather to ensure the existing guidelines are implemented. That is what we were trying to do on these retrospectively.

I was not referring to this initiative as such, but the general issue of participation particularly by local authorities. I am thinking of the Cork-Swansea ferry years ago where we could have been left with a bill for €500,000 that we could not recoup.

Mr. Tuohy

The Local Government Act was changed to allow them take a more developmental role. Their vires were very limited in the past but that was increased under the last Local Government Act. On foot of the Jeanie Johnston experience the Department of the Environment, Heritage and Local Government issued a circular to local authorities clarifying the position. That circular is available and we could certainly send it to the committee. That clarifies the exact issues the Deputy has raised about their involvement. In any of these things one has to balance two things: one must make sure there is a proper evaluation and that it is sustainable into the future. One of the problems when one does any kind of capital works with marinas in particular is that they have got to be maintained. If one does not allow for the ongoing maintenance and revenue to cover for that, one will end up with a problem and claims against you. They are designed to deal with that. Sometimes, unfortunately, the business analysis does not work in favour of the project without huge subvention. The huge subvention is limited by the State aid guidelines so that there is a balance.

What type of maintenance is involved in keeping a marina?

Mr. Tuohy

We have taken a ten-year life on this from the point of view of the project and if we wanted a commitment from, say, Sligo County Council — or Kerry in one case — that it would be prepared to guarantee it for ten years we would have felt we had discharged our responsibility for the capital funds. All of these projects have got to be maintained, particularly where one is dealing with the sea. If not, one will end up with not only the infrastructure getting worse but with claims against one. In regard to the Kilrush creek, which was cited as an example to us at the July meeting, when one looks at the figures it is clear there is an ongoing subvention. That was cited as a very good example but when one looks at it there is the upfront cost, the capital subvention and the ongoing subvention and I think they will have to pay for dredging in two or three years' time. One could argue that dredging is a public good. At the moment it is not, it is seen very much as something that has to be done, by either ourselves or the local authority. As more people use the marine type infrastructure environment, issues are being raised for us that did not exist previously. For a country that was surrounded by the sea we did not use it much over the years.

I am happy enough. If I heard those opposite trying to answer for some initiative they had tried and failed I would like to know we were within the guidelines and could help them rather than screw them to the wall every time they come before the committee.

I shall not go over all the grounds but I would like to look at Rosses Point where there were a couple of areas of concern. The delegation is like ourselves in that it wants to see a conclusion brought to this. One had to do with the foreshore licence. In his report, Mr. Tuohy indicated that considerable progress has been made. Is it accurate to say that agreement is virtually in place at this stage in regard to the foreshore licence for Rosses Point?

Mr. Tuohy

There is one technicality. Our view is that it could be sorted out.

In other words, from a practical point of view, the foreshore licence would not be considered in this case as a stumbling block.

Mr. Tuohy

Absolutely not. The other issue was that the harbour master had a difficulty but that has been sorted out by our marine safety people. Those were two of the issues.

The other issue that Mr. Tuohy highlighted related to the private berths at Rosses Point and Roundstone if I am not mistaken. He said, "27 of the fixed berths are to be let to private individuals, the tourism value of the facility is limited to 12 berths on the floating breakwater". The 12 berths are for the tourists. He goes on to say that the average cost is €56,000 per private berth.

Mr. Tuohy

Yes.

During the course of his contribution he argued that to make it work there has to be a mix between private berths. In other words one could not have a public facility as it would not stack up financially. Am I correct?

Mr. Tuohy

Yes. To clarify, what I was saying is that if one was going to make an investment and somebody had to pay some of the capital costs up front, there are two ways that could be done. People could make a donation to the local community. That was discussed by some of the developers who were here in July. They said they did not want the berths because they see the benefit coming into the community from the hotels and so on. That is one way of doing it. The other way of doing it — this was done at both Rosses Point and Roundstone — is that individuals are given the right to lease the berths for ten years. In one case they thought they would have it forever. We discussed that with them and said that would not be acceptable. The idea was that they would forward load the leasing at €3,000 per year, which would give €30,000 up front. For that they got the use of the berth but they could do, effectively, what they wanted with it. In one case, I think it was Roundstone, they continued to pay an annual rental on top of that. I do not play golf but one pays an upfront fee to join and an annual fee. If one does not pay the annual rental there is very little revenue on that side to fund what one has going forward. That is where one of the problems is.

I fully understand what Mr. Tuohy has said about revenue to maintain and run the project over the course of ten years. One of the points he made earlier was that separate from that is the State paying for these private berths that are being sold or leased at whatever figure. I thought that was a good argument except in the case of Rosses Point, where I would turn it the other way around. I would go so far as to say — this is not in Mr. Tuohy's report but it is what I understand the situation to be in Rosses Point — that the berths in private ownership are given up. The lease gives them back for public use between May and September. Is that correct? Certainly that is what I have been told by locals before today.

Mr. Tuohy

That is what the discussion with them is about, in the sense that how there can be guaranteed availability. There would have to be some legal clause to allow them to be available throughout the summer, certainly for tourist numbers. That is what I said earlier. It goes back to the issue of whether one calls a halt or whether one tries to find ways in which to make them work. There is nobody who is not committed to having marinas around the country. The question is how we make them work in such a way that they are not an encumbrance on the State ultimately.

I appreciate that but certainly my understanding in regard to Rosses Point is that there is agreement that the private berths would be made available for that period. There was no reference to it in Mr. Tuohy's report. It changes the view on whether the funding is for private berths.

Mr. Tuohy

Basically, it is aided. If it is not required by the leaseholder it is available for tourist purposes. It was not an unencumbered availability.

I have not seen the exact lease.

Mr. Tuohy

That is what I have seen and that is what my colleagues have told me is in it. The issue raised by the Deputy is an interesting variation on that. That was part of the discussion we had on foot of the meeting in July. If these berths could be made available for use for tourists, one is unlikely to have tourists coming in December.

Mr. Tuohy

It would have to be key time. If there was a condition whereby the person who owns the berth or has the lease of it has the first call on it during the summer, then it would not be available for tourism purposes. If it was stated that one had full use of it, with a legal contract handing it over, that would change the dynamic.

That is my view on what is being proposed at Rosses Point or what has been said to us.

Mr. Tuohy

That is not our interpretation of it. Certainly we would be prepared to discuss that issue further with them.

I am sure as a result of today's meeting Mr. Tuohy will talk to somebody.

I come from Sligo and concur with Deputy Curran. It is unfortunate that Sligo has been caught up in the failure to comply with the tourist development marina project because it has done the town a major injustice. The application from Sligo was valid and the location was good. I have no doubt the marina in Rosses Point will comply with the Department of Finance's 1994 guidelines and tourism guidelines. I would be disappointed to find that funds have been allocated to projects that did not comply with the guidelines. I am certain that the role of Sligo County Council, the semi-State body taking a tenancy or management role in the marina, diminishes private sector involvement and that partnership is an option.

I welcome the statement that the potential development of marina tourism is being re-evaluated because this sector shows major potential. It would be regrettable if the entire concept were to be abandoned as a result of poor management in the four cases under discussion. From a business point of view, the management of these schemes was a disaster. It is unfortunate that some valid applicants have become the fall guys for political decisions.

Mr. Tuohy

With respect, we did not badly manage the situation.

That is not what I am saying.

Mr. Tuohy

We dealt with a situation with which we had to deal.

We are not examining a political situation but the political announcement of these schemes, the manner in which they were driven, their location and the financial assessments that should have been carried out. It was perhaps a little premature to make the announcement in the 2000 budget.

Mr. Tuohy

I made that comment previously — at the July meeting — out of a sense of equity to the other 60-odd people who had gone to the trouble of making applications and the 15 who had been comparatively ranked. It goes back to the issue that there is an interest in this scheme country-wide. The scheme and its design were good and the criteria are clear. If people complied with it, it would be possible to have a good scheme. What we must do is try to fit these issues retrospectively and then deal with the broader issue. From the Government's point of view, developing the marinas makes sense in certain areas, provided one has the right business case and so forth. There is, therefore, a broad thrust of support for the scheme but we must make the system right to make it happen and each one must stack up.

I welcome the Department's commitment to get the principles, regulations and criteria right. It is important those involved in the case to which Deputy Curran referred or any applicant from the group of 60 are given an opportunity to participate in the new scheme when it is announced. They must closely follow the guidelines laid down by the Departments of Finance and Communications, Marine and Natural Resources.

Mr. Tuohy

The problem with regard to the national development plan is that the money has been transferred to guarantee its usage. This does not mean the Government cannot put schemes in place. I do not want to be quoted as giving a commitment today as such commitments are for politicians, not civil servants, to give.

The funding allocated in the Estimates for 2004——

Mr. Tuohy

That funding is still there.

How long can it remain there?

Mr. Tuohy

It is up to the Minister as to whether we carry it forward to next year, with the approval of the Department of Finance. There is no intention to take it out of the Estimates this year. If it is not spent, one can get permission for its virement to other areas. Subject to approval, we have provided prudently for the money in the Estimates, as one would expect. As I stated, we are trying to work with the different developers, to whom the Chairman has just referred, to see if we can come up with solutions over which everybody can stand. This has been difficult but one will find if one talks to them that they have had open access to the Department on this matter. My colleagues are endeavouring to work with them and will continue to do so. We want to be in a position to stand over whatever is agreed and I am sure the Chairman would not want me to do it any other way.

If there are no other questions, I propose to open the Vote.

Mr. Tuohy

I am joined for this part of the proceedings by the deputy secretary general, Ms Sara White, Ms Úna Nic Giolla Choille, principal officer, Mr. Brendan Hogan, assistant principal officer, and Mr. Shane Carton of the corporate finance unit. Depending on the issues under discussion, I may ask other individuals to contribute.

On the Vote as a whole, the Department has a wide-ranging economic remit with a key contribution to make in terms of growth, competitiveness and balanced regional development. The objective has been to commit and deploy available resources to programmes that will continue to contribute to economic competitiveness, sustainability and social and regional balance. Expenditure in 2003 under the communications, marine and natural resources Vote ensured continued progress on critical priorities across a range of programmes, with particular emphasis on outputs and outcomes and value for money, which is imperative in the ongoing process of expenditure management.

The 2003 gross outturn of some €536 million reflects a substantial funding provision, supporting and underpinning a number of critical priorities across the communications, broadcasting, energy, marine safety, seafood, marine research, inland fisheries and forestry sectors. Forestry transferred to the Department of Agriculture and Food on 1 January 2004 but was part of the Department in 2003.

The detail of the coverage of spending in each of these areas may well be of interest to members so I will provide several highlights. The new harbour development in Killybegs fishery harbour centre was allocated a sum of €26 million. In addition to the total of €29 million invested in fishery harbour infrastructure, more than €34 million was invested in the seafood sector in 2003. The final payment on the €32 million new multi-purpose research vessel, the Celtic Explorer, was made in 2003. Commissioning of this vessel in 2003 marked a significant step forward in Ireland’s marine research capabilities. The Celtic Explorer, which was delivered within budget and on schedule, will give a massive boost to the nation’s capacity to generate the knowledge necessary to unlock the potential of Ireland’s massive marine resources and manage them wisely for the benefit and enjoyment of future generations.

The construction of the metropolitan area networks related to total expenditure of €27.4 million in the communications area. The two Deputies present from Cork will be familiar with the MAN in Cork. The provision of high speed broadband infrastructure is critical to economic and regional development. As a further development of this successful programme, the committee will be aware of the broadband action plan announced in December 2003 to make high speed connectivity available to more than 350,000 people. The main elements of the programme are a second phase of the metropolitan area network programme and a group broadband scheme, not unlike the group water schemes we had in the past. In light of time constraints, I will conclude at this point for questions or comments.

As regards broadband, I pay tribute to my colleague, the previous Minister for Communications, Marine and Natural Resources, Deputy Dermot Ahern, for rapidly recognising the importance of broadband and to Cork City Council for joining the project. Deputy Boyle and I will also take our fair share of credit.

My question does not relate specifically to the €2.5 million overspend. Does the Department have any control over contractors undertaking larger projects? I have been informed of a claim that on at least one project involving a non-national contractor, Irish subcontractors are owed a considerable sum of money. A company bids for a contract on the basis of certain presumptions as regards deliveries and so forth. Does the Department have any control over projects?

Mr. Tuohy

The Department does a number of the projects and, therefore, supervises them. We have engineers on the ground who do a number of the marine projects. Some other projects, the metropolitan area networks, for instance, are done on behalf of the Government through local authorities and different companies. When one signs a contract, it normally provides for staged payments based on different types of phases that one reaches. This approach is not unlike the approach to building a new house — one pays for it in stages and phases.

On the question of subcontractors, that is normally a matter of contract between the contractor and the subcontractors. We do not tend to get involved in that, not that I am aware of it anyway. Usually, all the legal contracts are with the contractor. If they have subcontractors, there may be a condition that we would require prior approval of subcontractors. We would have to be happy about the calibre of people doing the work. A bonding type arrangement would usually apply. They are standard construction industry, CIF, type bonds. From memory, our main contracts are with the primary contractor but we would generally have to satisfy ourselves about the capability of subcontractors. We would hold the primary contractor responsible and the bond would normally be with it rather than with the subcontractors.

I would appreciate it if some discreet inquiry could be made. We are open to EU competition and I would hate that we would allocate a contract on the basis of reputation and that Irish workers would lose out. Perhaps that could be examined.

Mr. Tuohy

If the Deputy has a specific case in mind he can approach us afterwards and we will look into it. That is not a problem.

I appreciate that. Subhead J2 relates to An Post's collection of licence fees. I have a long family connection with An Post and am a strong supporter of its multidisciplinary approach, but I am also anxious that licence fees would be collected in a manner which maximises compliance at minimum cost. Does Mr. Tuohy believe the €10 million fee paid to An Post is reasonable?

Mr. Tuohy

Deputy Dennehy will remember we had a report from the Comptroller and Auditor General before us last year. I attended a meeting here on that specific issue with RTE and An Post. We all know An Post has not been in a good financial situation but, thankfully, things have improved somewhat this year. It is in serious discussions with the unions and is getting agreement through the Labour Court on new work practices and the like.

On the licence fee issue, we have signed an agreement with An Post for this year which will decrease the rate of non-compliance. The proposal is that we will go to tender on this in 2006 but it will take us about 12 months. Whatever we do, we have to have a seamless transfer. We would be very keen that the database would be available to whoever comes in to do that job. In other words, the database would be the property of the State.

An Post approached us and said it did not wish to continue with the licence fee collection. That is how the whole debate started but there was a broader issue. The other thing we did this year was to take out all the social welfare recipients. They get a once-off lifelong licence that is paid for directly. People like old-age pensioners and so on do not have to apply for it every year, which also reduces administration costs. We have been trying to put in place a competitively priced system over which we could stand and with which we could be happy.

Subhead J6 relates to the broadcasting fund, which had an income of more than €8 million in the year. Will Mr. Tuohy remind us on what that is spent? Am I correct in saying the fund is under the remit of the Broadcasting Commission of Ireland, or is it RTE? Is it essentially spent on what RTE would have provided at one time? Am I right in saying that?

Mr. Tuohy

A Government decision of December 2002 stated that 5% of the licence fee would be made available to a broadcasting fund. The intention was that it would deal with issues like culture, local content and digital archiving, which we thought was very important.

The scheme will be set up on a formal basis and will be run by the Broadcasting Commission of Ireland. It has having discussions on various issues and the broad parameters for the scheme which will be signed off later this year. The first payments will probably be made by the middle of next year. We transferred money to it and at the end of last year the fund stood at about €8 million. It is likely that in the region of €8 million will also be generated this year, so it is not an insignificant amount of money.

RTE can compete like anybody else but the idea is that funds would be made available for local broadcasting, independent producers and the like in areas such as culture, language and local history — anything but current affairs. The other side of that equation was digital archiving. One concern is that much of contemporary history is not being written; it is taking place on the airwaves and television. We want to ensure that will be digitally archived and available for future generations. In a statement last week the Minister made it clear that he will include a provision in the Broadcasting Authority Bill to allow for free access for education purposes to the archives in RTE, although there may be a small application fee. Commercial users would have access at a commercial rate. The Minister passionately believes in making the archives available for public use.

I note the outturns were €8.3 million but we do not have the figure for expenditure. Was everything spent?

Mr. Tuohy

No money has yet been spent.

The intention is to build up a fund.

Mr. Tuohy

The money can only be spent when the scheme is up and running. It will not be agreed and in place until the end of this year or the beginning of the new year. Applications will be invited at that stage so it will be about the middle of next year before money starts to go out.

Did I read somewhere that applications to date exceed the total amount available for the scheme?

Mr. Tuohy

There is no facility for applications, unless people have written in the hope they would be successful. It is amazing the number of people who have their eye on it.

Regarding fisheries, there is a reference to the necessary legislation giving statutory effect to the remit of the Loughs Agency, a North-South body. I would be concerned about the savings of €1.4 million. Was that due to the suspension of the Northern Assembly or to delays in our legislative progress?

Mr. Tuohy

Major constitutional issues arise in this context. This is the first body to bring to a head some of the North-South elements. Issues of jurisdiction, as to which legal process applies and so on, are being worked through at the moment. The Taoiseach made a commitment that we will publish the heads of a Bill by the end of this year, if it is at all possible. That is acceptable to the Loughs Agency. I met its board recently and they appreciate the difficulties. It is not just another Bill. If the Executive in Northern Ireland is suspended, it will have to go through the House of Commons in Westminster. If the Executive is up and running, it will be processed through that system. There is tremendous co-operation and interest in the Loughs Agency. It has been one of the success stories. We are working together to produce the necessary legislation but it has to go through both Parliaments at the same time.

Was the sum of €1.4 million for capital or current expenditure?

Mr. Tuohy

Both. We did not skimp on funding when we set up the body, which it would accept. There was a commitment by both the Northern authorities and ourselves to make sure it would not be short of money. The fact that it has not been spent is a sign that it is not just spending money for the sake of it. The projects stand up to evaluation. We hope that when the legislation is through they will be able to do other things, but they do not have the vires to do that at the moment.

There was an underspend of €8.5 million on search and rescue services in Waterford, under subhead B1. Subhead C1 relates to seaports and shipping. I spoke some time ago on the delay in regard to subhead C5. These are important areas. What was the cause of the delay with the Adventure Activities Standards Authority in particular?

Mr. Tuohy

Let me take the three of them together. Subhead B1 relates to the Irish Coastguard. Obviously the provision on that is made on best estimate but some of this is on a recruitment basis. If there are not as many incidents one does not pay as much. It is demand-led in that sense.

On the second one, seaports and shipping, basically there was a delay in the roll-out of some of the support measures of the NDP.

The third element is the association. That came about under the coastguard and the marine safety directorate. Given that the helicopter search and rescue service covers mountain rescue and cave rescue, we were asked to take responsibility for the adventure sports body as part of the ambit of the marine safety directorate. It is being worked on at present. We are setting up the search and rescue service and the marine safety directorate as a directorate within the Department. It is proposed to turn it into an agency, the staff of which would no longer be civil servants per se, but this is not signed off on absolutely. We are concerned about setting this up, but we do provide the service in terms of mountain and cave rescue, which is not a problem. It is a question of setting up the adventure activities standards authority on a formal basis, as provided for.

There is considerable concern about that authority. Many ad hoc decisions are being made, even in respect of the other services. This needs to be addressed because we are trying to market the country in this area.

On the overrun of €2.5 million at Adelaide Road, Mr. Tuohy is responsible for——

Mr. Tuohy

It was not an overrun. There was no provision in the budget for the move. Traditionally, the OPW funded Government buildings around the country. The process in this regard has been changed so the Department must find the money itself. The figure in question is the cost of the establishment of the headquarters.

Under the heading "Incidental Expenses", there is a fascinating reference to the Moriarty tribunal. I did not know how buildings such as the headquarters would be funded. Does each Department bear a percentage of the budget? I appreciate that Mr. Tuohy's Department's involvement concerned the telecommunications licence and the granting thereof. Does the Department have to bear an ongoing cost in this regard?

Mr. Tuohy

Our own staff are obviously involved and some of them do not even work in the Department any more as a consequence. We have legal experts from the Office of the Chief State Solicitor monitoring the tribunal every day. We have senior and junior counsel depending on the number of sittings. The public sittings are in abeyance because of a pending Supreme Court case taken by Denis O'Brien.

The legal fees are paid for out of the Department's Vote. The Deputy will see they are included.

What legal fees?

Mr. Tuohy

In our case and in respect of the Moriarty tribunal they are paid out of our Vote. There was no upfront provision for them in the Estimates at the time but they are now included. These are extra fees regarding which we must pick up the tab at the end of the year. One never knows how much they will amount to because the counsel is paid per diem, depending on the number of days the tribunal sits. This year and last year we had considerable engagement with the tribunal and many staff involved when it specifically dealt with the second mobile phone licence. I do not envisage that we will have as many staff involved if it is dealing with the grounds of Doncaster Rovers, which I believe will be considered in the next phase.

I was wrong in that I understood there was a central legal responsibility. This is a crazy situation.

Mr. Tuohy

We have been asked to fund the tribunal this year and last year from our own Estimate. It was previously funded by the Attorney General or even the Department of Finance. It is quite transparent.

To what does it amount?

Mr. Tuohy

The total excesses on the Moriarty tribunal amounted to €1.06 million. We had to manage this so we took funds from other areas.

I am concerned that the Department must dip into other funds to find the money. I believed the Office of the Attorney General or some such office was responsible for meeting the legal costs and costs of employing staff and for agreeing the rates. Does the Department have a role in this?

Mr. Tuohy

The office does all the deals, engages in all the negotiations and appoints the staff. We just pay the money. We monitor the staff and costs. I sign off on expenditure but one of the principals from the Office of the Chief State Solicitor certifies the figures with me. I meet such people regularly because we obviously have to prepare our own response to the case. Any court case, including this one, is a potential liability and therefore must be watched.

We might return to this issue because we have set up a State agency to take charge of cases against the State instead of allowing each Department run its own show.

Mr. Tuohy

No, the Office of the Attorney General is very much involved with us on this matter, it is just that the money is coming from our budget, as decided by the Department of Finance two years ago. The Office of the Attorney General does all the negotiations and a standard set of contracts are in place. We would be delighted if the Deputy could convince the Department of Finance to hand the money back to us.

Does a similar financial arrangement apply to other Departments?

Mr. Hurley

It would generally apply to other Departments. It is largely a matter of transparency and shows the legal costs that arise. To a degree, it is also to impose an element of discipline where decisions must be made, such that the client Department will be the one to decide when to cut and run, etc. All the terms and rates are dealt with centrally by the offices of the Chief State Solicitor or the Attorney General. Where the costs arise in specific instances, for the sake of transparency they will be assigned to the Department concerned.

Given that such sums of money are involved, this committee certainly needs to examine the issue. I appreciate that moves are being made to try to bring an end to this nightmare for the taxpayer. Discipline should probably have been imposed on the Secretary General some years ago in respect of the licences, etc. and not at this stage. I would like to revisit this issue, perhaps in our own time and not in respect of this Vote.

One of the previous occasions Mr. Tuohy was before the committee was when we discussed transmission points for wireless technology. The Department had taken on a liability and Mr. Tuohy was fairly confident that the money could be recouped through the resale of the transmission points.

Mr. Tuohy

To update the Deputy, we have 160 STM1s with a capacity of 145 megabits per second. One hundred of these are sold and we have orders for many more. We also have the rights to buy more. When I was last before the committee on this issue, I was being criticised on one level because the full system was not in use. I made the point that it involved a 25-year investment. Companies such as Google and Overture, which have entered the market recently, would not be here if we did not have such connectivity. We have the best price and capability in the world in terms of international connectivity, as is evident from the types of companies that have set up here. I have figures on this area which I will circulate to the Deputies before the end of the meeting. I can guarantee the members that the uptake has been quite phenomenal.

We also part-funded the ESB national network using the fibre wrap in its figure-of-eight loop around its backbone network. The prices on this have been very interesting. It has a network of 1,500 kilometres, which cost approximately €50 million to construct, but the prices of STM1s have decreased dramatically from approximately €800,000 per annum to approximately €100,000 per annum. Thirty-four megabit products have decreased to €50,000 per annum, ethernet products at 100 megabits per second are available at €50,000, and STM4s are available at €400,000 per annum.

On a point which I believe the Deputy raised at our last meeting, I broke down the telecoms market into five areas, one of which was international connectivity, regarding which we are the best in the class in the world. We have total availability at a cheap rate because of global costing. There is a competitive market on the national backbone and the ESB's entry into that market has been quite phenomenal in terms of uptake. This has opened up the possibility for wireless companies such as Irish Broadband to move to Cork from Dublin where backhaul costs are too high. One also must consider the metropolitan area networks which we are rolling out. The network in Cork was the first to be rolled out. We have rolled them out in the other 20 or so towns and will continue the programme. To service towns with fewer than 1,500 people we are using the group broadband scheme. Our ambition is to cover all towns with 1,500 people or more. We will use wireless technologies in some rural areas.

There has been a substantial uptake of digital subscriber lines, DSL, the introductory technology providing 256 kilobits per second which Eircom advertises as broadband. There are approximately 90,000 subscribers with 2,000 new ones every week. There are approximately 100,000 subscribers on flat rate Internet access and approximately 400,000 ISDN subscribers. With the industry, we are grappling with the question of how to convert flat rate Internet access and ISDN customers to using broadband given that there are approximately 1.2 million households and businesses in Ireland.

Now that 100,000 customers are using broadband and DSL, we are beginning to move into an acceptable realm of DSL and broadband roll-out, the key figure upon which we are judged internationally. While we are very competitive on national backhaul costs, the problem relates to the metropolitan network. In that context, we have opened the market and encouraged other operators with the result that there are now more than 40 in Ireland.

The other side of the equation is the mobile telephone market. ComReg has stated there is joint dominance in the market in that two operators control more than 90% between them. There will also soon be a 3G operator. Where there is competition, generally there are lower prices and more services. At the opening of the ComReg conference yesterday the Minister pointed out that this was not just about economic development but that technology had a huge role to play in terms of social inclusion and development. He challenged the industry to make free text messaging available to deaf people. More than 4 billion text messages are sent per annum. Therefore, it would not cost much to allow registered deaf people access to mobile telephone technology. As more and more use text messages, it is becoming the norm.

We have a challenge to see how we can engage more with people, particularly those on the periphery such as the disabled and the disadvantaged. Part of the objective in the roll-out of our systems is to engage with peripheral communities and those who would not normally gain access on a commercial basis. We see an important role for the State in this regard. It is a philosophical argument but one over which we stand. Moreover, we have cleared this with Brussels as not entailing state aid.

That is encouraging. It is good to get an update on an issue we have discussed before.

Item No. 14 on the list of miscellaneous items — statements of advances repayable to the Department under agreements on 31 December 2003 — seems to indicate that more than €1 million was due from Bula Limited. Will Mr. Tuohy explain this figure? Interest accrued is listed as €44 million.

Mr. Tuohy

I will have to revert to the Deputy later.

Is it fair to say the money is repayable?

Mr. Tuohy

Yes.

Is the figure for interest accrued owed to the Department also?

Mr. Tuohy

Yes.

That makes almost €46 million in total

Mr. Tuohy

Correct. I will have to revert to the Deputy with the details as I do not have the information in front of me. He will remember the Bula issue and agreements concerning State and privately owned minerals which became the subject of the longest running commercial court case in the history of the State. The figure probably relates to this but I will revert to the Deputy before the session finishes. If not, I will write to him in that connection.

When Mr. Tuohy finds out, will he know to what extent it is believed the money is recoverable?

Mr. Tuohy

We always make a provision but as is always the case when one is involved in court cases, one does not show one's hand. As far as we are concerned, it is all recoverable.

Has the legal process not been exhausted?

Mr. Tuohy

I will try to find the information on the Bula issue because I cannot remember it.

It is a large sum of money which bears explanation.

Given the Minister's recent statements, if it is found to be engaging in over-fishing, what is Ireland's potential liability?

Mr. Tuohy

We are not necessarily saying there is over-fishing. The Minister has referred the matter to the Garda Commissioner for investigation. France was recently fined €119 million for ongoing over-fishing. The European Commission has a responsibility and is pursuing various countries to check their systems. We have always had an open relationship with it. Officials visit Ireland regularly to examine our inspection functions. The sustainability of fish stocks is a big issue for the European Union and beyond. It is a classic problem that when some fishermen do not play by the rules, those who do lose out. Everyone must play by the rules.

The quotas are agreed every year at the December Council and it is up to our inspectors to enforce them and make sure they are complied with. Primary responsibility rests with individuals. As with the Garda monitoring speed limits, one can only monitor so much with the systems in place. Like any other country, we have limited capability to do so. Therefore, primary responsibility rests with the individual. This is not only just; it is also the right thing to do. If there is over-fishing, stocks will be depleted. We have seen in the impact on cod stocks in Canada. If depleted, they may not recover.

France's exposure was of the order of €119 million. There is also an ongoing fine. The stakes will be very high if the Commission finds against us. We have been open with it. We were in contact with it this morning when we notified officials of the current inquiry. Its officials are prepared to wait for the result to see what action, if any, they will take.

Mr. Tuohy mentioned France. Will Ireland's potential liability be determined by the fact that we have direct access to a large proportion of Atlantic waters but a smaller proportion of the overall quota under the European Common Fisheries Policy? How would such fines be calculated?

Mr. Tuohy

That is beyond me. The Commission will have to come up with the rationale for it. I can only give an indication of the size of the French fine and the French fleet is bigger than ours. The Commission is looking at other countries as well as Ireland. It started with the large countries and would be doing this even if we had not referred the current issue.

We must be transparent in the way we deal with these issues. Fishermen must be careful to ensure they do not over-fish stocks because they would affect their own livelihoods. During the EU Presidency, the Minister for Communications, Marine and Natural Resources got the Council to agree to a new approach to sustainable fishing. If we do this right, we can continue to grow in a sustainable way. This committee is committed to the sustainability agenda, of which fishing is a key part. There is growing interest in deep sea aquaculture which is seen as a source of food stocks for the future. There is huge capability in fishing but not if the seas are over-fished.

The scientific evidence is produced every year and made available to the Commission and fishery Ministers and on which they base the quotas for the following year. It is up to us to implement the rules. This year a weighing system for fish was introduced. It is up to individuals to catalogue the log books and to us and the Naval Service to supervise this.

I will write to the committee with the other information requested.

Is it agreed to note this Vote? Agreed. I thank Mr. Tuohy and his team, Mr. Glavey and all concerned. Next week we will deal with chapter 4.1 which relates to the River Nore drainage system and chapter 4.2 which relates to flood relief.

Mr. Tuohy

As we will not see Deputy Perry in the Chair again we thank him for his work. It has been a pleasure working with him and we wish him well in his new portfolio.

I thank Mr. Purcell, the Comptroller and Auditor General, and his team. I thoroughly enjoyed my two years as Chairman of the committee, which were a challenge. The work of the committee underlines the importance of the role of the Office of the Comptroller and Auditor General in seeking value for money. For me, this was an invaluable experience and I will not forget it.

I acknowledge the work of the clerk to the committee, Mr. Derek Dignam, my adviser, Mr. Christie Haughton, and the secretarial staff. I appreciate the support of my colleagues also. The non-partisan approach of the committee is its success. I have tremendous respect for the Accounting Officer in each Department. They do an important job because the management of taxpayers' money is critical. The work of the Comptroller and Auditor General and the recommendations of this committee are noted and acted upon.

I look forward to working with Mr. Tuohy as Opposition spokesman on the marine, which also will be a challenge.

I compliment the Chairman and thank him for the work he has done. I was privileged to be Acting Chairman following the death of Deputy Jim Mitchell. It was a sad time but we got on with our work. This is a challenging position and the work of the secretariat is outstanding.

I do not understand the internal activities of parties and why the Deputy is changing portfolio but I thank him for the work he did. He was totally impartial. This is an important political post because there would be plenty of ammunition if one wanted to misuse information that comes before the committee and it is vital that we are non-partisan and get on with the work. The Chairman displayed total commitment and I compliment him for that and wish him well in his new role.

I thank the Chairman for his effort and co-operation. The Committee of Public Accounts works well as a unit and for the past two years, those of us who were new to the committee were grateful for the role played by Deputy Perry. We wish him well in his new appointment, noting the irony that we finish with a marine matter. It might help him in his new brief.

The witnesses withdrew.

The committee adjourned at 2.25 p.m. until 11 a.m. on Thursday, 21 October 2004.

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