This Bill represents another important step on the road to ensuring the preservation and conservation of one of Ireland's natural and most significant assets. Apart from the specific provisions, to which I would like to refer in due course, the Bill's significance can be reflected as part of the chain of developments derived from the Government's commitment to and acknowledgement of the importance of the contribution which a secure and clean environment makes to the economy of this country.
I know that many can point to individual incidents over recent years where we have suffered nationally at the hands of indiscriminate polluters where personal interest, be it in the case of individuals or individual companies, has taken precedence over the interests of the community at large. I believe that the publicity attaching to those events is the most positive evidence of a community no longer prepared to accept the interests of the individual or the company over that of the community.
Like any modern business we must accept nationally that a change or an influence in one area of the environment causes effects in many other interdependent elements. Water pollution can, for example, affect the health of the community, the tourism industry and the image of the country generally with attendant consequences in all sectors of the economy. I am therefore heartened by the Minister's positive approach to this legislation, an approach which I believe should be mirrored throughout this House, and the country generally, in pointing not so much to the detrimental effects of water pollution, of which the entire community is abundantly aware, but rather to the engendering of an environmentally conscious spirit in the community, aware of the importance to the country of a safe and green environment.
Ireland stands in geographical isolation from its neighbours in Europe which, as we are aware, has had its difficulties and its blessings. We may have been slow to count our blessings in the past, but there is no excuse today not to be conscious of the strategic advantages we possess through our environmental heritage, particularly through the importance attached by the Taoiseach to this heritage and addressed through successive measures aimed at ensuring the conservation of that heritage for our children. No party, however it may name itself, could possibly propose and see through to implementation such a comprehensive programme of measures aimed at the conservation of our environmental heritage, such as that proposed and implemented by the present and the previous Government. These are not policies of lip services to the green concept riding on the bandwagon of developments elsewhere but real and true commitments, evidenced by developmental policies capable of implementation and to which significant resources have been allocated. These developments are the real signs of a truly green party. The strategy and clear focus of this nation must be on developing and enhancing that consciousness among the community at large, that we in this country possess a green heritage, be it 40 or 4,000 shades, the envy of many of our closest neighbours, and for that reason — if for no other — a prized and valuable possession for the entire community and therefore worthy of significant support in order to maintain it.
I would like to think that with the current consciousness and appreciation of the value of such assets by all its peoples, the European Community would move towards developing a concept of acknowledging the important contribution which pollution free environments contribute to the wellbeing of the Community generally in a practical way. It is not sufficient that the environment be regulated and guarded, we must look towards developing pro-active approaches which take account not only of conservation needs but also of the needs of the communities living within these areas.
So many of our neighbours lament the devastation of industrial development and its consequences for the environment and on environmental amenities. They look to countries, such as ours, to conserve that remaining unspoiled asset. That policy must also take account of the sacrifices necessary to maintain that heritage and produce practical and real support for communities, such as ours, to ensure the conservation of that resource for future generations.
I believe that a successful future conservation policy lies in the adoption of real supportive measures capable of supporting those communities which take action to safeguard the environment. It is possible that through the adoption of a green charter, or some such concept for localities capable of exhibiting environmentally safe standards within specified guidelines, a support package could be developed which would provide the means to maintain those standards. Such support should be capable of ensuring that those localities need not attract environmentally substandard industries or processes and, if necessary, provide sufficient resources to ensure that any industry can adopt the most safe methods of processing or treating waste and maintaining the highest standards always.
I would also like to stress that the conservation of our environment is not a preservation process whereby we lock the gate and throw away the key. It is a dynamic process, an inter-active process capable of promoting and sustaining industrial development which co-exists in harmony with the environment, agriculture, horticulture and forestry, and, indeed, all industries have a significant place in that development. We must satisfy ourselves that the basic criteria for that harmonious co-existence are adhered to and engendered in all those engaged in industry so that they are acutely aware of and appreciate the consequences of pollution on the community at large. Such, indeed, is the spirit under lying the European impact directive.
There is no change to be had in decrying industrial development, which we know is necessary for the economy, but we can be choosy and we can be safe and we can impose the strictest regulations on industry. In that scenario there is every reason to believe that we can muster even greater support for a continuation of environmentally conscious policies which safeguard the heritage of our country and that of Europe.
I am particularly conscious of the vast potential we have today to attract huge numbers of our European neighbours on the basis of our green assets, water, air, amenities and the many other attractive features of our unique cultural and environmental heritage. We know that our current visitors marvel and are rightly envious of those advantages which we ourselves, perhaps, at times do not sufficiently appreciate or exploit. In this latter context, that of exploitation, it is time to recognise the fullest developmental potential of those resources and the employment industries and amenities which they can sustain. It has never been a more appropriate time to do so, and as the European Community moves towards ever stringent regulations relating to the conservation of the environment, it is we who must stay at the forefront in promoting those policies and, more particularly, in adhering to them completely. This Bill is a significant and timely message to our Community partners that we intend to do so.
This Bill which modifies and extends the present arrangements for the control of water pollution is both necessary and timely. As the Minister has indicated previously, it is not a single measure so much as part of an on-going programme of measures aimed at combating water pollution and part of an integrated programme involving the targeting of resources and the areas most urgently in need of attention.
Since 1980 nearly £300 million has been invested by local authorities in up-grading local sewage treatment and disposal facilities. These resources have shown substantial returns in terms of a reduction in the pollution of rivers and streams. The allocation of £69 million alone in 1989 for the sanitary services capital programme will enable the maintenance of this drive towards pollution abatement.
Regarding my own county of Wicklow, and particularly with regard to the agricultural implications in this Bill, I would like to make some comment. Following the widespread evidence of fish kills during the summer of 1987 a programme of measures to combat water pollution was introduced by the Minister for the Environment for implementation by the local authorities, the fishery boards, the farm advisory bodies and, most importantly, the farmers themselves.
As a result of these measures there was a dramatic downturn in the number of reported pollution incidents during 1988. Specifically in County Wicklow, the number of new cases investigated reduced from 91 in 1987 to 35 in 1988. Furthermore, cases of agricultural origin accounted for only 18 of the 35, which represents a sharp drop from 73 per cent to 51 per cent in the occurrence of agricultural pollution as a percentage of the total cases investigated.
Similarly, the number of fish kills in County Wicklow fell from six in 1987 to two in 1988. Of these, one was very minor and little supportive evidence was found; the second was the result of diesel spillage from a farmyard rather than agricultural pollution per se. Overall, between late 1984 and the end of March 1989, Wicklow County Council personnel visited a total of 385 farms in the county; of these 123 visits were in response to complaints under the Water Pollution Act; 116 resulted from recent changes in planning legislation, with the balance of 146 being due to the farm survey. Categorising these in terms of pollution risk, 32 per cent were assessed as low risk, 37 per cent as medium risk and 31 per cent as high risk. The same council followed up initial visits either by issuing advisory letters or by section 12 notices. Most recent inspections show that farmers are, by and large, taking their responsibilities very seriously indeed. Remedial works have been completed in many cases and further works are in progress in most other cases.
The reasons for this Bill are general and specific. The principal Act, the Local Government (Water Pollution) Act, 1977, is now almost 12 years old. As it was the first of its kind, so to speak, some of its provisions were set out in fairly broad terms which need to be tidied up or corrected in the light of subsequent experience. The current Bill is an amending Bill and, like most amending legislation, seeks, by clarifying and expanding, to move from the broad and vague to the more precise. Many of the provisions in the 1989 Bill, compared to the 1977 Act, are fulfilling precisely this function.
That is the general need, but the particular need goes back to 1987, the year of the fish kill, and the consequent promise by the Minister for the Environment to bring in amending legislation which would prove to be "a powerful deterrent to those who, through their carelessness and greed, risk destroying one of the nation's most valuable resources". In other words, the polluters were to pay for their pollution. The 1989 Bill began life as the Local Government (Water Pollution) Bill, 1987, and its principal measures, particularly the proposed increase in maximum fines, have been common knowledge for some time. The Irish Farmers' Journal devoted most of its issue of April 29 to a series of articles on the new pollution Bill. While the articles highlight much in the new Bill which is of real concern to the farming community, some of the information was misleading, due to over-reaction or a genuine misinterpretation of its provisions. Accordingly, before dealing with what is new in the legislation I should like to comment on what is not new, provisions which either remain unchanged or are clarified, tidied up or expanded without posing any major threat.
The general prohibition under section 3 of the 1977 Act, that a person shall not cause or permit any polluting matter to enter water, remains unchanged and, while there has been comment to the contrary, the new Bill does not broaden or change in any way the definitions of "waters" or "polluting matter", both of which were more than adequately wide ranging in the original Act and which are now restated as follows: (1) "waters" are defined under section 1 of the 1977 Act as "any [or any part of any] river, stream, lake, canal, reservoir, aquifer, pond, watercourse or other inland waters, whether natural or artificial; (2) "polluting matter" is defined in the same section as "any poisonous or noxious matter and any substance, the entry or discharge of which into any waters is liable to render those or any other water, poisonous or injurious to fish spawning grounds or the food of any fish or to render such waters harmful or detrimental to public health or to domestic, commercial, industrial, agricultural or recreational uses."
It has been stated that section 9 of the new Bill extends the powers of local authorities to regulate or restrict agricultural practices without provision for the farmers to appeal. Section 9 states that where it appears to a local authority that it is necessary to do so in order to prevent or control pollution of waters, it may serve notice in writing under this section on any person having the custody or control of any polluting matter on premises in its functional area, in other words, the section 12 notice has a general requirement to specify the measures which the local authority consider necessary to prevent entry of polluting matter to waters. Section 9 of the new Bill expands the wording to enable any such notice to (a) regulate or restrict or make subject to conditions the carrying on of any activity, practice or use of land and (b) require the provision, relocation or alteration of facilities for the collection or storage of polluting matters.
Section 12 notices issued by local authorities contain new wording which merely confirms the sort of conditions which are already being imposed, for example, in relation to land spreading — minimum distance from watercourses and prohibition on winter spreading — farmyard draining arrangements or the detailing of sizes, etc., for silage slabs and slurry tanks. While it has been implied elsewhere that there is no provision for appeal against such notices, the opposite is the case. If anything, the appeal provision is now more flexibly in favour of the appellant than it was under the terms of the original section 12, in that it makes specific provisions for amending the time for completion of measures. It also allows for the possibility of the notice being revoked.
Similarly, section 17 of the new Bill is a substitution for section 23 of the principal Act and deals with the issuing of section 23 notices and the information which may be sought by the authorities from the person on whom the notice is served. There is little in the new section beyond what has become the established practice.
Section 10 relates to the power of the local authorities to prevent and abate pollution, in particular, to take measures and to recover the cost of those measures from the polluter, and is in substitution of section 13 of the 1977 Act. While the provisions of the original section 13 could be invoked where it appears to a local authority that urgent measures are necessary the wording of the new section 10 is: "Where it appears to a local authority or ......it is necessary to do so, it may take such measures....." Some concern has been expressed at the deletion of the word "urgent". I would consider it implicit in the new wording that measures which are considered to be necessary are, of their very nature, deemed to be urgent. In practice I do not envisage this new wording as being overly significant in the day-to-day application of the provisions of this new Bill. If there is a shift of emphasis in the provisions of this section it is in favour of farmers in relation to the recovery of costs by local authorities. In the original section 13 the wording is reasonably clearcut, but the new section 10 creates a potential grey area in that it incoporates the phrase "to the extent — if any — that any measures taken by a local authority..... were necessitated by the acts or omissions of a person...." in other words, there appears to be a greater onus on a local authority to prove the extent of a polluter's culpability.
Of much greater significance in regard to local authorities' interventionist powers, section 7 of the new Bill — which replaces section 10 of the 1977 Act — deals with the right of a local authority to apply for a court order directing a polluter to mitigate or remedy the effects of pollution, including the replacement of fish stocks, the restoration of spawning grounds and so on and the additional right of the local authority to intervene directly and take any steps themselves specified in the order which have not been complied with, the cost of such steps being recovered as a simple contract debt. I would agree that there may be some extreme measures implied here. However, it must be emphasised that such measures are effectively contained within existing legislation — witness the case that occurred in Limerick some years ago when a farmer was ordered by the court to pay for the restocking of a river under section 10 of the 1977 Act which section 7 of this Bill replaces.
What is significantly new in this Bill is that, whereas heretofore only a local authority, the Minister for Fisheries or a board of conservators could apply for a court order under the provisions of section 10 of the principal Act, the provisions of this Bill extend that right to any person regardless of whether he or she has an interest in the waters concerned. I will revert to this point later in the context of other new provisions contained in this Bill.
Probably the most contentious section of the Bill is section 21 which provides for the making of by-laws on the part of local authorities or the Minister for the Environment to prohibit or regulate the carrying on of specified agricultural activities. The potential consequences of the provisions of this section can be gleaned when one considers that such by-laws can be applied to part or the entire functional area of a local authority and when one considers the range of agricultural activities to which they will apply.
Section 21 (1) (a), (b) and (c) read:
(a) the collection, storage, treatment and disposal of any polluting matter used in connection with, or arising from any operation, activity, practice or use of land or other premises carried on for the purposes of agriculture, horticulture or forestry;
(b) any activity that involves the application to land or to growing crops, or the injection into land, of any silage effluent, animal slurry, manure, fertiliser, pesticide or other polluting matter;
(c) any other operation, activity, practice or use of land or other premises for the purposes of agriculture, horticulture or forestry.
The procedure for making by-laws is relatively cumbersome, involving publications, circulation, appeals, the possibility of amendments or annulments and again the publication and circulation of appeals decisions. While a local authority may make such by-laws they must be approved by the Minister which converts them from being a local to a national issue. I would envisage that if and when a local authority wish to control, regulate or prohibit any agricultural activity most likely they will continue as heretofore, that is to do so by means of a section 12 notice.
Looking to the future, in the context of my county of Wicklow, I would envisage by-law restrictions being contemplated only in the vicinity perhaps of the Vartry and Poulaphouca reservoirs because of their significance as a source of water supply for Dublin and north-east Wicklow. The position as it obtains would not warrant any action being taken under the provisions of section 21.
Section 20 of the Bill before the House introduces the concept of civil liability for pollution, the subject of much adverse comment by the farming organisations. There are two aspects to the provisions of this section, first, the right of the injured party, the victim of the pollution, to take a civil action against the polluter to recover damages in respect of injury, loss or damage and, second, the fears expressed that such civil action would result in the penalisation of an innocent farmer through whose lands the pollution travelled from elsewhere. Taking the latter point first, section 20 excludes from liability an innocent person through whose lands the pollution flowed from elsewhere on the basis that this constitutes an event he could not reasonably have foreseen or controlled. It is a reasonable assumption that one cannot forsee when or how one's upstream neighbour may pollute. This is another area about which much concern was expressed by the farming community. Once the matter has been clarified their fears may prove to have been without foundation.
With regard to civil liability I would regard it as a basic right that any injured party be able to recover damages by means of a civil action, whether it might arise from pollution or any other form of injury, even allowing for the fact that most pollution is caused by accident or carelessness.
In my earlier remarks on section 7 of this Bill which deals with applications for court orders — also the section dealing with the replacement of fish stocks — I mentioned that a new feature was that such an order may now be obtained on application by any person to the appropriate court regardless of whether that person had any interest in the waters concerned, in other words, any third party, individual or group, may apply to the court for an order to have the polluter mitigate or remedy the effects of the pollution, including the recovery of the costs thereof. The order may also relate to the costs incurred by that third party, presumably including legal costs in applying for the order.
Another new aspect of that section is that, whereas section 10 of the 1977 Act referred only to an application to the District Court, the new section mentions both the District Court and Circuit Court depending on the estimated cost of the remedial work required. Obviously 12 years' inflation has hit the cost of pollution clean up as much as it has hit everything else.
On the extension of the right to apply for a court order to any individual or group rather than limiting it to specified authorities as heretofore, while many independent environmentalists would consider the right to such a third party a necessary adjunct to democracy, my own view is that this is not necessarily a good thing. The law and its application are already rife with confusion and the introduction of this new measure could well have the consequence of the courts being besieged with a plethora of independent applications. This extension to any third party is also included in section 8 which deals with applications to the High Court, and I would similarly comment with regard to this.
In practice, the most significant aspect of the new Bill is likely to be the proposed increase in maximum fines and penalties applicable on conviction. These are individually referred to in amendments to various sections, particularly section 24. Briefly the Bill proposes an increase in the maximum fine on summary conviction from £250 at present to £1,000 and on conviction on indictment from £5,000 at present to £25,000. The possibility of a term of imprisonment on summary conviction remains unchanged at six months but the possibility of imprisonment on conviction on indictment is increased from its present maximum two year term to five years. These increases also apply in the case of offences relating to industrial discharges. There is a further provision in section 23 of the new Bill that where an offence is committed by a corporate body, a company or a factory, the director, manager or other officer involved can be found personally guilty rather than being able to disappear behind the corporate image as heretofore.
To what extent the courts will adhere to the new scale of fines remains to be seen. However, from experience, some people feel that what is needed at this stage is not so much an increase in the maximum fines but perhaps a stipulation in regard to minimum fines as it must be acknowledged that in cases brought by the local authorities to date, the courts have tended generally to give the polluter the benefit of the doubt. In many cases, even when conviction are obtained, the penalties imposed have been derisory. A £10 or £50 fine is very little incentive to any polluter to clean up his act. It might be better, therefore, to have a realistic minimum rather than a vaguely threatening maximum requirement.
Section 26 of the new Bill introduces a novel concept whereby the court, having imposed a fine for an offence under the Water Pollution Act, may order the polluter to pay the fine directly to the local authority rather than to the courts as heretofore. This again has caused some agitation in farming circles, with suggestions that it might be yet another surreptitious way for the local authorities to make money. Obviously this was the reason for the remarks about bounty hunters made by the former president of the IFA which, in my opinion, were unhelpful, to say the least.
It would seem that if a fine is imposed it is of no great importance whether it has to be paid to one body or another. What hurts is actually having to pay the fine. Given that one of the major objectives of the proposed Bill is to make the polluter pay for damage done by him to the environment, it is not altogether unnatural that such payment should be made to the statutory custodian of that environment. However, it must be remembered that this direct payment will be a novel concept for the local authorities as much as for the polluters, and again it remains to be seen how it will work in practice given that the application of this provision is at the discretion of the courts.
Section 22 of the proposed Bill appears to have caused some confusion, raising the spectre of farmers having to seek licences for the discharge of any polluting matter into drains. This word "drain" has been echoing and re-echoing around this land in terms of concern from the farmers' point of view. The section relates to combined drains which, together with sewers, have a very specific meaning under the terms of the Bill. Briefly, a sewer is a sewer pipe which is in the charge of a sanitary authority and a sewer pipe which is not in the charge of a sanitary authority is a drain. A drain serving two or more premises is known as a combined drain. Section 72 of the proposed Bill allows the sanitary authority to declare such a combined drain to be a sewer within the meaning of the Bill. The impact of section 22 therefore, will be mainly in the area of trade and industrial effluent discharges rather than agriculture as it is really an expansion of the existing section 16 licensing provisions. Here again, farmers have been worrying needlessly.
The Bill also proposes a number of other changes not related to farming activities, mainly dealing with procedures for effluent discharge, licence applications and reviews of existing licences. It proposes the introduction of licence application fees similar to planning application fees and, as I mentioned earlier, extends the scope of licensable discharges and increases the penalties for related offences similar to those affecting the farming community.
While much of the Bill is without doubt a response to the summer of 1987, to which I have referred already, and therefore inevitably has agricultural implications, the opportunity is also taken to write in practices and procedures which have evolved since 1977 to tighten definitions and plug loopholes — again not all of them are farmer related.
As a rural Deputy I am in day to day contact with farmers and I fully appreciate the concern they have expressed but I believe it is vital that their fears be allayed. As I said, some of the remarks by allegedly responsible people when this Bill was first mooted were unhelpful. In fact, that is a major under-statement; they were downright provocative and caused an unnecessary scare throughout the agricultural community. A co-operative approach by the local authority and the farmer can ensure that this Bill will have little serious impact on the farming community generally.
Deputy Dempsey earlier mentioned that this Bill is not about farmers — or words to that effect — and I would like to reiterate that. It is not an attack or an assault on farmers, their land or their livelihood, and that should be made very clear.
I believe the farming community will be affected to a certain extent and co-operation with the local authorities will be very important in the enactment of the legislation. It would be helpful if patience was exercised by both the local authorities and the fishery boards so that the new legislation can be introduced in a "non-bullish" way. If the high level of pollution control grants were extended I believe this would encourage farmers to doubly ensure that their activities are devoid of any pollution possibilities.
Perhaps the Government and the Minister would consider giving an incentive to farmers so that they will take anti-pollution measures and improve the anti-pollution measures they have already. Perhaps consideration could also be given to giving farmers reduced interest loans specifically for the purpose of pollution control. I ask the Minister to consider these points with a view to helping farmers to help the rest of the community in maintaining our environment.
In the final analysis, the main beneficiaries from this legislation will be the farmers who produce our food. The image our food has abroad can be put on a superlative level if we can be seen to have a good, green and non-polluted environment. This could be based on the principle that a good, green and non-polluted environment yields good, non-polluted food. If this is done, farmers will be able to seek a premium price for their beef and other foodstuffs in EC markets.
This Bill will make an important contribution to the programme aimed at improving and maintaining the standards of water quality. As I said earlier, any measure which contributes to a better environment will be of tremendous benefit to the entire community and is worthy of the fullest support. I congratulate the Minister on her timely introduction of this significant legislation.