The special control areas orders can apply to all types of business, not to domestic houses. A whole range of operations will be covered. Deputies Brady and Doyle have been talking about the problems caused by transboundary pollution. That is what the thrust of this amendment is about. We must try to trace in the first instance the causes of pollution. It would not seem just and fair to confirm an order without having the necessary survey work undertaken. Emissions from a particular type of operation miles away might be the cause of a certain level of pollution in a housing area, due to wind velocity or direction. The use of domestic coal tops up the problem and the pollution level goes over the limit, thus causing an order to be placed. One would have to commission a detailed survey to establish where the causes of the pollution arise.
I support Deputy Brady's view that the legislation should have teeth. There is not much point in passing legislation if it does not contain the necessary powers or will not be implemented. This Bill has been framed in such a way that certainly it is expected it will be implemented. I will give it highest priority. We are trying to achieve cleaner air not just in the capital city but in other areas which might have an air pollution problem, arising either from local sources or from transboundary sources. It is important to recognise that the Bill is not centred on Dublin, although instances of pollution in the city have been brought to our attention and areas have been scientifically identified as having air which is not in accordance with the baseline directive we would like to apply. It would be a matter for the local authorities to carry out the necessary surveys to prove these conditions exist and to seek to have a special order put in place.
Section 39 enables a local authority in the interests of preventing or limiting air pollution to make an order declaring all or part of their area to be a special control area. In considering the making of the order the local authority must have regard to any relevant air quality management plan or air quality standard, as well as the availability of the means necessary to comply with the order and the cost of compliance. Making an order will be a function reserved to the elected members of a local authority. Local representatives have been seeking this power to address difficulties in certain areas in their locality.
The Minister will also have a reserve power to direct that a special control order be made. That is important in an area where there might be reluctance on the part of an authority or of certain members of it to make such an order. The Minister will have the overriding power to step in and direct that the order be made. Of course, he will have to take cognisance of the surveys and management plans that might be in place and the evidence brought forward in support of making the order. There is a cost element involved in any such measure. That reserve power is an essential ingredient in the legislation. It indicates to local authorities and to elected members that if they are reluctant to take the necessary steps to have a special control order supplied, the Minister will simply step in and do it on their behalf, and I assure the House that this Minister will not be reluctant to take the power available to him.
Section 39 (1) is important because it provides the basic power for a local authority to make a special control area order and this power is stated permissibly as "may" rather than "shall", something which has attracted criticism from certain commentators on the Bill. By implication these critics would like to see a mandatory provision requiring the establishment of special control orders in specified circumstances.
It can be said in reply to some of these criticisms that the Bill embodies a mandatory provision under section 39 (4) for special control area orders in the power of the Minister, to direct a local authority to make such an order. That would go a long way to setting at rest the minds of those who say that the Minister might not have the power or might not be available to use it. Secondly, it would be unreasonable and inappropriate for the Bill itself to define where or in what exact circumstances an order should be made. Making an order will involve a pretty complex assessment for which the Bill must be the framework rather than the detailed blueprint. That is important. There are steps to be taken so as to protect rights of individuals, people and areas so that those steps can be clearly set down. The local authority will be in full knowledge of the expertise, the surveys, the plans and all that goes to make a decision one could stand over. I am particularly conscious of that.
Thirdly, making a mandatory provision the norm would deprive local authorities of any real input into the question of special control areas. It is embodied in a particular way in this legislation that local authorities should be conscious of their own environment and should take the initiative for it. In the first instance I want them to do that. I do not want to mandate them and say that it must be done this way or that way; I want them to set in place a sequence of events that will take place before the special area order of control is made. They will have their input, they will have an opportunity of articulating the reasons. In this way their own electors will understand the reason certain steps are being taken, including the efforts made to trace the causes of the pollution affecting their own area. It is very important that that amendment be seen in that light. I do not see it as a long term benefit to say that we are having a special control order in this area and leave it at that. It would be preferable that before an order is made the cause of the pollution is traced back so that one can remove or take steps to remove the cause and thereby the control order would not be in place for all time. There is not much point in making an order unless we do something about seeking the source. By attacking it in that way we might eliminate the need for having that many orders put in place. People would recognise that those making out the orders were seeking the sources. This would be a good indicator to all and sundry that they must do something about their own business in advance of having the order put in place on them and it would be instead of doing it in a mandatory way in the legislation and against the practice of most countries, in particular against the tradition of Irish local government who have entrusted elected local authorities with all kinds of responsibilities for the environment, taking in such things as planning, water pollution control, waste management, sanitary services, roads and housing.
We could all agree that there is a pretty wide range in the powers the authorities have and it has always been good practice to allow them to have the power to deal with all these matters which concern their own areas. This legislation goes down that road in allowing the elected representatives the maximum autonomy in dealing with their own areas. I would like to see that enshrined in this legislation. If they are not prepared to do it or are reluctant in any way when the Minister has the power, but I would like to think that it would not come to that and that they would seek to have these control orders put in place themselves and to take an interest in seeing to it that their areas are free from the type of pollution we are referring to in this legislation.
Finally in relation to that subsection, entrusting discretion to local authorities in this matter is consistent with the reality that different approaches to environmental protection are appropriate for different areas. We could see that in a broad way also. What one might do in one area might not necessarily be the right thing to do in another, whereas if it were included in the legislation by way of mandate, it would be a blanket kind of thing, taking away from local authorities the making of orders and having particular surveys done in a particular way to satisfy their own requirements.
Section 39 (2) lists the matters to which the local authority must have regard in deciding whether to make a special control area order. It is important that that be understood by those considering putting in place this type of order. The matters they would have to take cognisance of would be as follows: any air quality management plan adopted by the local authority under section 46 of the Bill; any relevant air quality standard described by the Minister under section 50 of the Bill — this could be based on EC directives or prescribed independently — the availability of the means necessary to comply with the order, for example, smokeless or other non-polluting fuels, low emission burners and so on, and the expense involved in complying with the order. Of course, these things are added to by the amendment in that they have to seek into the cause of the pollution as well.
It is not the case that the availability of means necessary to comply with the order and the expense involved in complying with the order deprive these provisions of any real teeth. I do not see it that way. They are just the overriding considerations but their inclusion is necessary to ensure a balanced assessment of the merits of a special control area.
These subsections in outlining the details of how it is to be done give some indications as to how serious the question of imposing such a control area order is. It must be done carefully following all due surveys and recognition of the difficulties involved, but once decided on it must be done in a proper fashion. In this way the legislation is given teeth. Deputy Brady need have no fear; the legislation is comprehensive enough and allows for implementation without getting completely stuck in so far as investigation is concerned.
Section 39 (3) requires a special control area order to specify the area to which it relates, the pollutant or pollutants with which it is concerned and the measures required under it. Section 40, without prejudice to the generality of this subsection, lists in much detail the possible matters for which an order may provide. Section 39 (4) empowers the Minister, where he considers it necessary to prevent or limit air pollution to direct a local authority to make a special control area order. This is to be seen as a reserve power complementing that given to local authorities under subsection (1). It has parallels in other areas of local government law, notably in section 42 (1) (a) of the Planning Acts, 1963, which allows the Minister to direct a planning authority to make a special amenity area order.
The House will be aware that amenity area orders can be made in different ways and one of the ways in which it can be done is by direction of the Minister. I always like to think that these orders should have their source in the local authority members themselves but on occasion, for whatever reason, when the Minister deems it necessary to come in and do it then he should have power to do so. That provision is incorporated in this Bill as well, that the Minister does have that power to take the necessary steps to prevent air pollution, to direct a particular local authority to put a special control area order in place. Hopefully, it will not be necessary for a Minister to take this step too often. I like to view it as purely a reserve power to show the Minister is determined and wishes it to be effective in so far as the control of pollution is concerned.
Section 39 (5) allows a local authority, with the consent of any other local authority concerned, to make a special control area order which relates to an area within the jurisdiction or functional area of the other local authority. This subsection effectively allows an order to extend beyond the functional area of the local authority making it. Similar provisions exist for special amenity area orders under section 42 (3) of the Planning Acts, 1963. This was touched on by Deputy Doyle when she spoke about transboundary pollution, the fact that a difficulty might arise because it might be outside the jurisdiction or control of a given local authority. It is important — if it can be established that the difficulty arises in some other place — that that can be covered by this section of the Bill, that the area of control can go beyond the boundary of the particular local authority. That is a good provision and it is necessary. Otherwise one could end up in a nonsensical situation in which one could go up the road to a certain limit but one could not go beyond that limit. It is for that reason that subsection (5) allows a local authority to deal with an area beyond its territory. Of course, the consent of the other local authority is needed in these matters. However, the reserve function of the Minister — in being able to direct the control area order to be made, over and above that — means that if one local authority are not prepared to play ball with another local authority wishing to have a control area order put in place then the Minister may have to settle the matter for them.