To help Deputy O'Shea, we were dealing with section 9, amendments Nos. 11 and 12, in the names of Deputies O'Shea and Quinn. We agreed that we would take both together for discussion purposes.
Local Government (Water Pollution) (Amendment) Bill, 1989: Committee Stage (Resumed).
I was awaiting the Minister's response when we adjourned.
I propose to deal with both of these amendments together as Deputy O'Shea did. Neither of the amendments is acceptable.
The proposal to insert "may" for "shall" in subsection (2) of section 12 of the Principal Act appears to be intended to enable local authorities to put the onus on individuals to determine the measures necessary to prevent pollution and to facilitate the insertion of the new paragraph (d) of the amendment to that section. It seems that where urgent measures are necessary to prevent pollution it is reasonable that the local authority should outline what should be done in the interests of an early action to deal with the problem.
The point has been made that works undertaken to comply with the terms of the notice under section 12 are exempted from the normal requirement to obtain planning permission and that such works may, as a consequence, be unsightly, poorly located or badly constructed. This exemption arises under Statutory Instrument 348 of 1984, the Local Government Planning Development (Exempt Development) (Amendment) Regulations which obviously relate to planning matters. It seems reasonable that a local authority should outline the works to be done where urgent measures are necessary to prevent pollution.
Second, section 12 notices are most frequently used to address potential pollution risks from farms. The work generally required to be carried out under these notices would be exempt development for the purposes of the Planning Acts. The question of obtaining planning permission, as outlined by Deputy O'Shea, would not even arise should a farmer independently decide to carry out such works.
Third, given the dual water pollution and planning roles of local authorities they are well placed to take account of any special aesthetic or other planning considerations in determining terms of section 12 notices.
Finally, as these concerns relate to exemptions extended under planning legislation they should be considered and, as appropriate, amended in the context of planning rather than the present Bill. The proposed new paragraph (d) is identical to section 17 (3) of the Bill which amends section 23 of the Act and as a result is unnecessary. Where time permits, having regard to the nature of the pollution risk to be dealt with, there is nothing to stop a local authority issuing a notice under section 23 so as to obtain relvant information from a farmer or details of the measures he proposes to take to prevent pollution and considering the responses before finalising the terms of the section 12 notice. I cannot see that there is anything to be gained by an amendment which would duplicate the provisions of section 17 (3) of the Bill and, accordingly I cannot accept the amendment.
Amendment No. 12 seeks to amend subsection (4) of section 12 of the principal Act so as to provide a sanction for the provision of false or misleading information in response to a request for such information under section 12 of the Act as it would stand if amendment No. 11 were accepted. However, as I have already stated, I cannot accept amendment No. 11 and this amendment, too, is unacceptable.
It seems that where urgent measures are necessary the delays involved in going down the route advocated by Deputy O'Shea would be totally wrong and would lead to local authorities not being in a position to dictate to a farmer the measures that require to be taken as a matter of urgency. That is one of the main reasons we could not accept the amendment proposed by the Deputy.
These amendments were formulated following discussions with people in the field who operate the Act. These are the people at the coalface, the people who have to work the Act at local level. The amendments do not prevent the local authority dealing with an urgent problem under section 12. The substitution of "may" for "shall" does not change that situation. If the local authority feel they have to act speedily and urgently, it is quite open to them to do that under the section.
The major problem here is the potential polluter. There is no provision under section 12 whereby information can be obtained urgently from a potential polluter and this is the concern I would have. For instance, a section 12 notice served in the absence of full information from a polluter or potential polluter makes it very difficult for a local authority to formulate exactly what is necessary.
Statutory Instrument 384 of 1984 exempting works caried out under section 12 of the Act from planning permission was brought in for a very good reason. The directions given by a local authority under section 12 deal with capacity and technical aspects but will not deal with the actual construction of the added dimension to the effluent disposal operation of the person involved. I am not coming here with an amendment which just came off the top of my head. I am talking in terms of the people who are very dedicated to the operation of the Act and these are the problems that are frustrating them. I believe that if this amendment were accepted it would greatly strengthen what is an Act.
I was very impressed with the presentation which Deputy O'Shea gave on this amendment on the last occasion. He has highlighted an issue of some concern particularly to the people who have to work the legislation. I cannot understand why the Minister cannot accept Deputy O'Shea's amendments. Is there a reason for not accepting them on technical grounds? Perhaps the Minister could identify that and we could debate the principle. It would seem that what Deputy O'Shea is proposing is very much in harmony with section 3 of the Bill.
We had a long debate here on the last occasion about the kind of defence a person could put forward if a charge were brought against him for committing an offence under the Bill, and the terms which were introduced by the Minister were that the person would have to prove they had taken reasonable care to prevent the entry to waters to which the charge relates by providing, maintaining, using, operating and supervising facilities or by employing practices or methods of operation that, having regard to all the circumstances, were suitable for the purpose of such prevention.
Deputy O'Shea's amendment is very much in harmony with that position. For example, he is requiring the submission of maps, plans, drawings, etc. showing the location, nature, extent and condition of facilities for the collection, storage, treatment and disposal of the effluent and other polluting matter and so on. In other words he is putting an onus on the person on whom a notice would be served to present the evidence that sufficient care is being taken. It seems to be consistent with the other provisions in the Bill. It would greatly weaken the provision in the Bill requiring a potential polluter to take all reasonable care if there was not an explicit provision in the Bill requiring the person concerned to produce the evidence of it. Deputy O'Shea on the previous occasion spelled out the kind of difficulties that the absence of this provision in the Bill would have for people who would have to operate it. I think the Minister is taking a particularly negative position on it and I ask her to reconsider it.
As we see it, the insertion of this amendment would very seriously weaken the Bill. Deputy O'Shea seems to want a position whereby the farmer with his advisers would come in with suggestions as to what he wants to do and then they would be adopted before the section 12 notice would go out. That can and does happen where there is no urgency but very often the matter is so urgent that it is necessary for the local authority to detail very specifically what needs to be done and to impose an obligation on the farmer in question to carry out the very specific works which the local authority believe need to be carried out. To take that obligation away would, in our view, very seriously weaken this legislation.
What Deputy O'Shea asked for is covered in section 17 (1) (c) and section 23 of the Bill. Section 17 seeks to strengthen the powers of local authorities to get information.
In relation to Deputy Gilmore's point of getting maps and so on, that can happen where there is time and it does happen, and there is no problem about that. This section does not interfere with that at all, but we wish to strengthen the legislation to ensure that there is an obligation on a local authority through a section 12 notice to detail very specifically the measures that need to be taken to combat a pollution problem or a potential pollution problem. For that reason we cannot accept "may" instead of "shall" which would weaken that position, give too much discretion and leave the decision the other way round rather than putting the compulsion on the local authority to specify the nature of the works to be carried out.
It seems we are at cross purposes here. I cannot accept that deleting "shall" and inserting "may" weakens the Bill in terms of the local authority dealing with an urgent problem. They still have discretion under the Bill to move urgently if so desired. On that point I ask the Minister to clarify further how she sees that substituting "may" for "shall" weakens the powers of local authorities to deal urgently with a problem. We are seeking to put in here further powers if they choose to use them.
Obviously if one substitutes "may" for "shall" one leaves the discretion with the local authority as to whether the provision is adhered to. The word "shall" puts a compulsion on a local authority.
In relation to a section 12 notice it is possible, subsequent to response to the notice, to have negotiations and discussions. If that is the point the Deputy wishes to cover that is covered. Subsequent to a section 12 notice representations and discussions can and do take place. Removing the compulsion by inserting "may" as opposed to "shall" and giving local authorities the discretion that they may issue section 12 notices in cases like this I believe would be wrong and would weaken the legislation.
I cannot agree there. Is the Minister suggesting that her local authority officials will act in a less than urgent way if we change the Bill? These amendments are down to strengthen the position of local authorities. The Minister has not convinced me that deleting "shall" and substituting "may" makes any difference other than to strengthen the hands of local authorities. If she chooses to comment on whether local authorities would act responsibly, I believe that is inappropriate.
The Deputy tells me he stands unconvinced and is going to press his amendment.
I intend to press the amendment.
- Bell, Michael.
- Byrne, Eric.
- De Rossa, Proinsias.
- Ferris, Michael.
- Garland, Roger.
- Gilmore, Eamon.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- McCartan, Pat.
- Moynihan, Michael.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- Pattison, Séamus.
- Rabbitte, Pat.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Séamus.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Gallagher, Pat the Cope.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- McDaid, Jim.
- McEllistrim, Tom.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Malley, Desmond J.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Wyse, Pearse.
I move amendment No. 13:
In page 12, line 45, before "incurred" to insert "reasonably".
I propose in page 12, line 44, before "incurred" to insert "reasonably". The printed matter refers to line 45 but as Deputy O'Shea has pointed out to me privately it should be line 44. Section 10 of the Bill allows local authorities to intervene directly where it appears to them to be necessary to do so in order to prevent, mitigate or remedy pollution. The section also entitles the authorities to recover the cost they so incur from the person whose actions or failure to act necessitated the intervention. The proposed amendment will make it clear that the costs to be recovered by local authorities are those reasonably incurred in dealing with the situation. The amendment may give some reassurance to polluters that they will not be faced with unreasonable bills for local authority actions, although the propects of this arising in the first place are extremely unlikely given the role of the courts in the settlement of the debt due.
Did the Minister yield to Deputy O'Shea's comment? It seems the amendment is in line 45.
Deputy O'Shea has said it is in line 44.
As I would see it, it is in line 45.
I think Deputy O'Shea has a different copy of the Bill from the rest of us.
It is his own personalised copy.
It seems to be the subject of an inquiry.
I cannot understand the Minister's justification for this amendment. We are dealing with a section of the Bill which would enable the local authority to seek through the courts by simple contract debt the recovery of the expenditure incurred by the local authority in carrying out certain works to prevent water pollution, to remove polluting matter from waters or to mitigate or remedy the effects of any polluting matter in waters, drains or sewers. First of all one has to assume that the local authority would be reasonable in seeking the recovery of the expenditure they had incurred. Even if the local authority were to be unreasonable in seeking the recovery of the expenditure incurred, it is reasonable to assume that the court would arrive at a reasonable conclusion.
It is assumed in the section that what is intended is reasonable expenditure. Therefore the question arises as to why the Minister has felt it necessary to introduce an amendment to insert the word "reasonably". One has to try to contemplate what the insertion of that word is likely to give rise to. As the section stands it is quite clear; it is that expenditure incurred by the authority in relation to measures may be recovered by the authority. That is something the court will have to calculate but what will happen if the court has to adjudicate on what is reasonably incurred? Will there be a situation whereby every action taken by the authority is challenged in the courts by the defendant on the grounds of reasonableness? This is one of those phrases with which the courts will have enormous play, one of those phrases which will probably leave the legal profession much better off as it teases its way through what was intended by reasonableness.
As I understand it, when the courts are faced with trying to define a term such as "reasonable" they very often take into account what was in the mind of the Legislature when it was being put into the Bill. I am very concerned that the courts would draw certain conclusions from the fact that in the original version of this Bill and in the version which was passed by the Seanad it simply stated "expenditure incurred" but here in the Dáil it was amended at the behest of the Government to include the term "reasonably". The conclusion a court would draw from that is that what was intended by the Dáil was that the expenditure incurred which may be reclaimed by a local authority was to be reduced. That certainly appears to be what was intended by the IFA when they asked the Government to amend this section.
I must apologise to the Minister for not having supplied her with a copy of this document, which I undertook to do on the last occasion, but I had not expected that we would reach the Bill so rapidly today. However, I will undertake to supply her with a copy of it. That document circulated by the IFA states, regarding section 10:
In this section of the Bill it states that expenditure incurred by the authority in relation to measures may be recovered by the authority from the person as a simple contract debt in any court of competent jurisdication. We have been successful in getting an amendment to this clause. This clause now reads "expenditure reasonably incurred". It is viewed that this amendment will safeguard the farmer from incurring excessive and unnecessary costs claimed by the local authority.
The original version of the Bill would not have involved anybody being faced with excessive and unnecessary costs. Quite clearly, the Bill as originally drafted, referred to expenditure incurred and in any event that would be a matter for the courts. This section and this amendment was clearly seen by the IFA as a way of reducing the amount which could be reclaimed by a local authority.
The environmental issue which arises here is the principle that the polluter pays. We have heard a lot about this in the House of late. It is one of those phrases that everybody seems to have adopted and everybody is all in favour of it. "The polluter pays" principle, as I understand it, certainly involves the polluter paying for the damage that the polluter causes, paying to the public authority the cost of any remedial works which would be required in order to limit pollution, to stop it or to deal with the effects of it. Either we will have that principle applied in the Bill or we will not. It seems that as a result of the Minister's amendment the courts will be likely to interpret what was in the minds of the legislators in this section of the Bill as reducing the amount to be reclaimed by the local authorities. I do not understand the necessity for the amendment in the first place. I would have thought that reasonableness was quite clear from the wording of the Bill as originally drafted. It seems to me that the only purpose for introducing the amendment is to reduce the amount which can be reclaimed by a local authority, and that is something I would be opposed to.
If these debates are to be meaningful, people have to be reasonable and that being the case, I do not intend to press my amendment. I do not think it would have made a huge difference either way but I take on board some of the points raised by Deputy Gilmore. It is extremely unlikely that any court is going to expect anybody to pay costs incurred unreasonably. The amendment would not in any way weaken the position of local authorities because as section 10 (2) of the Bill makes clear:
To the extent (if any) that any measures taken by a local authority or a sanitary authority under this section were necessitated by the acts or omissions of a person (being acts or omissions that the person ought reasonably to have foreseen would or might necessitate the taking of the measures by the authority), the expenditure incurred by the authority in relation to the measures may be recovered by the authority from the person as a simple contract debt in any court of competent jurisdiction.
Obviously it would not be desirable to enter into litigation on whether the costs incurred by the local authority were reasonable, and that being the case and wishing to be reasonable and have meaningful debates, I will not press the amendment.
That is very reasonable.
Before we leave section 10, in case anybody would think that Deputy O'Shea was not with it, it should be stated for the record that unfortunately he was supplied with a copy of the Bill as initiated in the Seanad rather than as passed by Seanad Éireann.
That is a very reasonable explanation.
It was not a conflict of right and wrong but of two rights.
Amendment No. 14 is in the name of the Minister. Amendments nos. 15, 16 and 17 are alternatives. It is proposed, therefore, with the agreement of the House, to take for discussion purposes amendments Nos. 14, 15, 16 and 17 together. Is that agreed? Agreed.
I move amendment No. 14:
In page 12, before section 11, to insert the following new section:
11.—Section 15 of the Principal Act is hereby amended—
(a) by the substitution of the following subsections for subsection (3):
`(3) Two or more local authorities may jointly make a water quality management plan in relation to waters part of which are in or adjoin the functional area of each local authority.
(3A) A water quality management plan may be revised or replaced by the local authority or local authorities that made it.', and
(b) by the substitution of the following subsection for subsection (6):
`(6) As soon as practicable after the making, revision or replacement of a plan under this section, a copy of the plan as so made or revised or of the replacement plan shall be given by the local authority concerned to the Minister and the Minister for the Marine and to any local authority, sanitary authority or regional board whose functional area either adjoins the waters to which the plan relates or the performance of whose functions would be affected by or would affect the implementation of the plan.'."
The main purpose of amendment No. 14 is to provide an additional amendment to section 15 of the 1977 Act relating to subsection (6) which concerns the circulation of water quality management plans. For purposes of drafting and presentation it is preferable to delete section 11 of the Bill and replace it with a comprehensive amendment section. Subsections (3) and (3A) of section 11 are being repeated, subject to minor drafting changes to the latter subsection, so as to ensure consistency in the use of terms concerning the revision or replacement of management plans throughout section 15 of the 1977 Act.
The new subsection (6) will ensure that all local and sanitary authorities and regional fisheries boards whose functional areas may directly or indirectly affect the water quality management plan or which may be affected by the provisions of the plan are given copies of the plan and so are made aware of its contents. The present requirements in this regard may, in certain circumstances, involve an inadequate level of circulation of such plans. This is possible as the local authority making a plan are required only to circulate it to other local authorities adjoining their functional area and to sanitary authorities and fisheries boards within their own administrative boundaries. However, there may well be other authorities, particularly sanitary authorities, whose activities may indirectly affect the section of a river which is the subject of the management plan.
There may also be cases where adjoining local authorities are far removed from the waters covered in the plan and who will have no interest in or influence on the waters concerned. The present section 15 of the 1977 Act, which requires circulation of copies of the plan to such authorities, is clearly inappropriate for such situations.
This amendment is concerned with fine tuning in the light of experience of operating the 1977 Act and is intended to rectify the inadequacies indicated.
The Minister said her amendment is really a case of fine tuning what is already in the 1977 Act. My two amendments, Nos. 15 and 16, which I understand we are discussing together with the Minister's amendment——
We have agreed that matter but if I may I will advise the Deputy further? If amendment No. 14 is agreed then, obviously amendments Nos. 15, 16 and 17 cannot be moved.
I suggest, a Leas-Cheann Comhairle, that amendments Nos. 15 and 16 are not really in conflict with amendment No. 14. The principle involved in amendments Nos. 15 and 16 is somewhat different from what is contained in the 1977 Act and what is contained in the Minister's amendment. Perhaps the Chair will allow me explain.
I have indicated earlier that they have been regarded as alternatives and therefore for discussion purposes could be taken together. I have advised the Deputy of that and I thought we had got agreement earlier that we would take them all together for discussion. That is probably the first thing we should decide now. If the Deputy has some misgivings about that he is entitled to disagree.
I have some doubts about it but it might be advisable if the debate were allowed to run on for a bit and in the light of what is said we might revise the order in which the amendments will be taken. If the Chair will allow me explain, I think all will become clear.
What is an exception tomorrow will become a precedent. We have to avoid that. When the suggestion is put that the amendments be taken together, the Deputy is entitled to say that he would prefer not to do that and he wants his amendments isolated or he may agree to take amendments Nos. 15 and 16 together but not amendment No. 17 and the House will accept that. Is the Deputy indicating that he is happy that amendments Nos. 15 and 16, because they are alternatives, be taken together for discussion purposes but that he does not want amendment No. 17 included?
No, a Leas-Cheann Comhairle. The simplest thing is to reserve our position, and I will now speak on amendments Nos. 15 and 16. Perhaps it will become clearer as we go through——
We cannot make up rules as we go along. The Deputy should say now, as he is entitled to do, that we discuss only amendment No. 14 and amendments Nos. 15, 16 and 17 separately.
I accept they have to be taken together. If that is to be your ruling——
The Deputy appreciates that when amendments are taken together for discussion purposes separate questions ordinarily are put but if amendment No. 14 is accepted amendments Nos. 15, 16 and 17 would not arise and could not be moved.
Amendment No. 15 could arise even if amendment No. 14 is passed.
Is the Deputy saying then that he does not want amendment No. 15 to be taken with amendment No. 14 for discussion purposes as this is what he must do if he wants to reserve the right to have a question put? There would be a difficulty in putting a question on amendment No. 15 if amendment No. 14 is accepted.
It is an amendment to the Minister's amendment. I do not want to delay the House by getting involved in a procedural log-jam on this matter——
The Deputy would have the safety valve of Report Stage if amendment No. 15 is rejected here or if it cannot be moved. He could move it later on Report Stage. The Chair has said enough to the Deputy for now. Are we back to the point where we started, that for discussion purposes it is agreed to take amendments Nos. 15, 16 and 17 with amendment No. 14?
It is. On amendments Nos. 15 and 16, section 15 of the 1977 Act states that a local authority may and, if so directed by the Minister, shall make a water quality management plan for any waters situated in their functional area or which adjoin that area. There are two possibilities, the first is that a local authority may, if they so wish, make a water quality management plan and the second, if so directed by the Minister, they will have to make a water quality management plan. To my knowledge no Minister in the 13 years since that Act was passed has directed a local authority to make a water quality management plan and only two local authorities out of a total of 98 in that time have made water quality management plans. Therefore, it is quite clear that section 15 of the 1977 Act has not been implemented by local authorities. There is a good explanation for this. Unless a function is mandatory it is generally not carried out by local authorities who have a wide range of functions to carry out. Generally speaking, unless these functions are mandatory they are not carried out by the local authorities and that is the case in this instance.
It is fair to say that section 15 of the 1977 Act has been a failure. Apart from two exceptions, no water quality management plans have been made. What I am seeking to ensure with amendment No. 15 is that each local authority shall make a water quality management plan for any waters situated in their functional area or which adjoin that area and that that water quality management plan is revised or replaced at intervals of no longer than five years, in other words, an obligation similar to the one on local authorities to make a development plan would be imposed on local authorities to make water quality management plans and review them at intervals of no longer than five years.
There are critical reasons that this amendment should be taken on board at this time. There is increasing public concern about the quality of our water, in particular our drinking water. In recent weeks concern has been expressed about the effects of fish farming at Poulaphouca on drinking water in Dublin. As well as this, in a report, in Consumer Choice magazine concern was expressed about the levels of aluminium in drinking water in Dublin. In my own constituency the residents living in a small estate had a study carried out by the Eastern Health Board, the results of which clearly show that there are excessive levels of lead, ecoli and aluminium in the water and that it is unsuitable for use. The report pointed out to the residents that the water should not be used as drinking water or for culinary or even laundry purposes. The residents have produced samples of the water and I have seen little objects floating around in it. Certainly I would not use it. On the other hand, the local authority concerned have told the residents that the water is suitable for use, that they are satisfied it is potable.
We have two conflicting reports, the first of which from the Eastern Health Board states that the residents should not use the water to wash their clothes and the second from the local authorities stating that the water is perfectly safe to drink. Local doctors have advised the residents that they should not use the water unless they boil it first. In most cases they are buying their drinking water. I could give many other examples from all over the country to show that the water supply may be contaminated in one way or another. Here I am just talking about the quality of drinking water but there is also the question of the quality of water in rivers and the extent to which fish life can survive in waters which are polluted.
The intention behind section 15 of the 1977 Act was that local authorities would adopt a planned approach to water quality within their functional areas. It has not worked. It may be said that local authorities have been remiss in not doing so. However, the fact is that they have not done so and we should not let the opportunity this Bill presents pass without making it mandatory on them to draw up water quality management plans and ensure that those plans are reviewed every five years.
I will not go over the ground covered by Deputy Gilmore who dealt with the variable standards of water available, particularly in the Dublin area. The Deputy expressed his views very fully and correctly. However, one matter has not been adverted to in the Bill or the Minister's amendments, the question of time limits. For that reason I have tabled amendment No. 17. It is essential that the Bill contain a time limit to avoid the dragging on of preparations of plans. I suggest that the end of 1990 would be an appropriate time limit to place on local authorities who have been preparing plans for some time. We cannot afford to drag our feet on this issue. It is essential that plans are put in place as soon as possible. The health of our people is at stake. We are not dealing with an academic issue. May I move my amendment?
We have one amendment before the House and we cannot have two. We can discuss the Deputy's amendment but he cannot formally move it now.
I should like to reiterate what Deputy Gilmore said with regard to the quality of water, in particular drinking water. The difficulty that most people have now is that there are different agencies producing different reports. The general public do not know what information is reliable, they do not know whether drinking water in Dublin or in a wide variety of areas such as those referred to in the Consumer Choice magazine, is a danger to health or not. It seems that when an agency other than a local authority sound warning bells local authorities automatically adopt a defensive posture and protest that everything is in order. There is a growing cynicism with that defensive posture.
There is a need for reassurance. I am a little concerned at the idea that amendments Nos. 14, 15 and 16 may be mutually exclusive; we may have to look further at that. There is a valid point in saying that each local authority should within a reasonable period of time have in place a water management plan. That could happen under existing legislation and it is open to the Minister to instruct each local authority to prepare a plan. As I understand that legislation, taking into account the Minister's amendment, local authorities have discretion whether to prepare such plans or not, but if they are instructed by the Minister to prepare them they must do so. In my view the Department have been remiss in not issuing the necessary instructions. The need to issue instructions is very clear in the light of a whole series of recent incidents such as that at Poulaphouca, the concerns about aluminium in the water supply and the concerns about other matters in water supplies, particularly in rural areas.
I wonder whether the Department have deliberately not issued instructions so as to avoid having to provide local authorities with the additional resources that may be required for them to put in place a water management plan. It is worth putting that question to the Minister. If we are talking about all the waters which are the responsibility of local authorities the most recent statistics we have, for 1989, show that there were 112 serious incidents of water pollution resulting in the death of approximately 35,000 fish. That statistic was issued by the Department of the Marine, it was not invented by the Opposition and is sufficient to give rise to a great deal of concern with regard to our rivers and lakes.
I would be happy if the Minister would tell us that she is prepared to issue the necessary instructions to local authorities to provide such management plans and to update them on a regular basis. Deputy Gilmore and I share membership of Dublin County Council and we are aware that the five year county development plan seems to extend to 11 or 12 years. The Minister of State is still a member of Dublin County Council and it appears that she is constrained to be a member of that body by the Fianna Fáil group on the council, or so we are told. We are aware that the development plan process does not work. The renewal of a water management plan would not require the same input from elected representatives or impose the same burden on them. It may impose a burden on local authority officials but if the local authority are to be the main body policing water pollution legislation and ensuring that our rivers and lakes are unpolluted and that our water supplies are drinkable as tap water when it comes into our homes, then they should be doing this work. If they are not doing it it is because the Department have not required them to do it or they lack the resources to undertake it.
It is my view that existing legislation should have been adequate to ensure that the job was done properly but that is not the case. Deputy Gilmore made a persuasive case for imposing a general obligation on all local authorities, in the absence of the Minister being willing to take action under existing law, requiring them to put in place such management plans.
There is some confusion in Deputies' minds about the quality of drinking water and the necessity for water quality management plans. I share the many concerns expressed by Deputies in relation to the quality of drinking water resulting from the lack of treatment processes rather than the lack of water management plans. There are excessive levels of aluminium and nitrates in the water. They are not at the levels outlined recently in the Consumer Choice magazine. Those figures were based on outdated monitoring results. Nonetheless, there are problems but they occur in the minority of the one thousand or so water treatment schemes we have throughout the country.
Deputies will be aware that the Government allocated recently £1 billion essentially for water treatment in different forms. A sum of £300 million will go to upgrading the quality of drinking water. In addition £14 million is being spent on the Ballymore Eustace works which supply the bulk of the drinking water for the Dublin area. That scheme will be completed some time next year. The £300 million will be spent during the next decade upgrading our public water supply to ensure that it meets the highest possible international standards.
In the past we got our standards from the World Health Organisation and in more recent times the standards have come from the European Community. Standards are uniform thoughout member states and we have adopted the most stringent European standards. For example, the drinking water regulations cover 55 different parameters that the quality of the water must meet. We have had some problems but they have been exaggerated in many cases. The £300 million will be spent over the next decade to ensure that our public water supply is of the highest possible quality. Obviously, we must be concerned about the quality of the water particularly given the link in medical research between Alzheimer's disease and aluminium levels in drinking water.
In addition £230 million will be spent on sewage treatment facilities and preventing the pollution of our inland waterways by upgrading sewage treatment facilities for our inland towns. A sum of £400 million will be spent in our major coastal towns to prevent the discharge of raw sewage into our marine waters. That will apply to coastal towns with a population of 10,000 people or more. These are major commitments by the Government, they are necessary and they are important. It is the first time that a commitment of that kind has been given. Deputy Gilmore is wrong in relation to water quality management plans, seven have been completed and those seven have involved many more than seven local authorities. For example, in regard to the Slaney where there is a water quality management plan there are at least three local authorities involved. We have water control management plans for the Barrow, the Nore, the Suir and Bantry Bay. In addition there are 12 water quality management plans underway at present, many of which are near completion. While it is true that no formal direction has been given by the Minister under the powers conferred on him under the 1977 Act that direction would probably be given only where a refusal came from a local authority to conduct a water quality management plan. Informal directions have been given and I have been involved in speaking with and writing to local authorities for the lower Shannon area in relation to Lough Derg asking them to complete the water quality management plan which is underway and which will be completed shortly. The same applies in relation to Dublin Bay. The Minister did not give a direction but certainly it was the Minister and the Department of the Environment who co-ordinated that management plan which is underway and which will be completed towards the middle of 1991.
In relation to the second last amendment, Deputies O'Shea and Gilmore were anxious to give some flexibility or discretion to local authorities and to change the word "shall" to "may". In this situation there seems to be an anxiety to have a compulsion and it does not seem to make much sense. It is not necessary to have a water quality management plan for all waters. Local authority resources have got to be used in the most efficient way possible. In respect of waters that are not likely to be polluted, where there is unlikely to be any development in the foreseeable future, it is not necessary to have a water quality management plan. We have got to ensure that the resources of local authorities are used to the maximum effect as far as the environment is concerned. It is fair to reiterate here, because this is often misrepresented, that only 2 per cent of our rivers are seriously polluted, that is according to the last water quality report of 1987. It is a very low figure and we often exaggerate the state of our waters.
For many reasons I cannot accept the amendments as put forward but since they may or may not be taken separately there seems to be some confusion. In fairness there is a difference between my amendment No. 14 and amendments Nos. 15, 16 and 17. Amendments Nos. 15 and 16 appear to seek to put a compulsion on local authorities to carry out water management plans for all waters in their functional areas. Amendment No. 17 seeks to put a time limit on the local authorities to complete water quality management plans. These plans are extremely difficult to carry out. They are expensive, cumbersome and very technical so it is not a simple matter of looking at the water and devising a plan. Scientific surveys and analyses have to be carried out. The Dublin plan will take a minimum of 18 months after which the draft plan goes on public display and the public have a right to make representations. It will not be possible to accede to Deputy Garland's request that all the plans be completed by the end of this year. Equally, in relation to the desire of Deputy Gilmore to review the plans every five years, to make it compulsory, that may not be necessary; review is different from revise — one must always review plans of all kinds but to revise implies change and that may not be necessary. To put a compulsion there that would be that inflexible or rigid would not be desirable. For those reasons it will not be possible to accept the amendments proposed by the Deputies.
I am disappointed with the Minister's response. I accept that the end of 1990 might be too soon to expect completion of the plans but I am disappointed that the Minister did not suggest some other date. Perhaps she would consider, say, the date, 30 June 1991, by way of amendment for Report Stage as these matters tend to drag on. I appreciate that much work has to be done but it is essential that it be carried out with reasonable speed. The Minister has given the figure of 2 per cent of rivers as being seriously polluted. She has made this statement outside the Dáil as well. Can she state the source of this information because it seems to me to be an absolutely ludicrous figure? I hope she has the source of the information.
The source of the information is the water quality report of An Foras Forbartha, completed in 1987.
I stand corrected by the Minister in relation to the number of water quality management plans which have been made and which are in the pipeline. Nevertheless, the main thrust of my argument still holds, that 13 years after the enactment of the 1977 Act only a tiny minority of waters in the country are covered by water quality management plans or are intended to be covered by them. The Minister made the statement that it is not necessary to have a water quality management plan in respect of all waters. That is where we fundamentally disagree because I think we have to look at water as a valuable and, indeed, often a scarce resource. Like any resource its management has to be approached in a planned way. The day is long gone when we can regard water as something that simply falls from the sky, that has always been there and that will always be with us. We have to look at water and treat it with the kind of care that since 1963, at least ostensibly, we have been required to treat the use of land. She makes a point that it would not be a good use of the scarce resources of a local authority to have to make a water quality management plan in every case. It is a case of being penny wise and pound foolish.
The Minister of State and the Minister, in the past couple of months have made great play of the millions of pounds that apparently will be spent on the improvement of sewage treatment and water supply generally. I will not get into the argument this evening about the fact that really all they have been talking about is continuing the public capital programme for sewage and water treatment at much the same level as at present and, indeed, at considerably less than what it was over the past ten years.
Let us talk for a moment about the spending of millions of pounds on sewage treatment and water supplies. Is the Minister seriously saying that the Government are talking about spending all of this money and all of this European money on sewage treatment and on water supply and not requiring local authorities to adopt water quality management plans to ensure that that expenditure is properly deployed, properly maintained and properly managed over the years to come? Let me give her an example. The constituency I represent has a water supply system which is a 19th century clapped out system of pipes, something like one would find in a Tom Sharpe novel.
That is the joke.
I am afraid there is very little to laugh about in it. There are frequent bursts, poor water pressure in some areas and dirty water in other areas. We have 20th century housing developments built on top of this clapped-out system of water supply. It has been like that for years. The local authority can be criticised for the poor way in which they have maintained that system of water supply down through the years but in terms of maintenance the local authority has spent a lot of money repairing leaks, digging up roads and reinstating them to simply make sure that the water is going through that clapped out system. Recently the corporation did a study and prepared a scheme for the renewal of that water supply system. The total cost of that will be £44 million, the work to be carried out over a 12 year period. I sincerely hope that that scheme will be included in the largesse which is apparently to be spent on water supply. I am sure there are other areas where the system of water supply needs to be approached in a planned way.
We are talking about a water quality management plan. It is not simply a question of saying that there is a lake, a river or a bay, and let us adopt a water quality management plan for them. We are talking about local authorities looking at all the water resources in their areas and approaching them in a planned way, knowing where the water is coming from, what is in it as it goes through the functional area of the local authority, what goes into it, what is being discharged, how the water is supplied and how that in turn affects the quality of water as it ends up on the table for drinking and for other uses.
I was not confusing the question of the quality of drinking water with the making of water quality management plans but the two are inter-related because the quality of the water that ends up on the table is very much related to the pollution of water in the first place and to the whole system of water distribution. That is very much an integral part of what we are talking about. We have long passed the day when local authorities and public authorities generally can simply treat water as something that is there believing that all local authorities have to do is respond to cases of obvious pollution, to illegal discharges into water and so on. There must be a planned approach to the care of water. That is obviously what was intended in the 1977 Act, but it has not happened except in limited cases.
Deputy Shatter mentioned that it was open to the Minister to direct local authorities to make water quality management plans. That is so, but it would not be fair to leave that Minister totally responsible for directing local authorities to make water quality management plans. The only occasions when that power might be realistically used is when a crisis occurs, when a river or lake suffers excessive pollution resulting in a public outcry and the Minister, as a political response, would use his power under section 15 of the 1977 Act to direct the local authority to make a water quality management plan. Only in that sort of situation will one get a Minister to act under section 15 of the Act. It would be much simpler to require local authorities to draw up the water quality management plans in the first place.
I take the point about reviewing the plan every five years. I expressed the amendment in the terms in which I did to avoid the kind of situation Deputy Shatter talked about where development plans, even though the review process starts at five year intervals, can be dragged on for several years afterwards. I specifically built in that the intervals should not be longer than five years, although I am not hung up on a five year interval. The principle of a review is more important and there should be some time limit within which local authorities review the water quality management plans.
The quality of water will become increasingly an issue for public debate as there is increasing concern about the quality of water and about water pollution. As Deputy Shatter said, a number of agencies are now involved in this area — the local authorities, the Department of the Marine, regional fisheries boards and perhaps the environment protection agency, if ever it sees the light of day. A number of pieces of legislation also impact on the quality of water, for instance, the 1977 Act, the Fisheries Acts and the 1988 regulations on drinking water quality. There is a question relating to the availability of information arising from legislation and regulations. For example, under the 1988 regulations on drinking water quality, local authorities are required to test the drinking water quality. It is not clear that all local authorities are carrying out that duty — perhaps the Minister could clarify that they are all fulfilling that obligation — but those who are simply take the tests, have them analysed and submit the report to the Department. The information is not made available to the public or even to the members of the local authority concerned. It is treated very much as a matter of scientific evidence which is passed between one local authority and another.
Along with the Minister, I am a member of a local authority where recently I asked some questions about tests carried out on the quality of the water in Dublin county and I was told that in 92.5 per cent of the samples taken, the quality was all right as far as the mandatory EC levels were concerned. What concerns me is the 7.5 per cent of samples that were not all right. The same kind of global answer could have been given at any time about the quality of the air. Taking the air pollution figures over a number of years, I am sure it would be possible to say that in 92 per cent or 93 per cent of cases the air quality was fine, yet we know that Dublin has had a serious smog problem. The fact that 7.5 per cent of the samples breached the EC limits in Dublin county is quite serious. Similarly I was told that in 62.5 per cent of the cases the water quality was better than the guideline level in the regulations. The corollary of that is that in 37.5 per cent of cases the water quality was not better than the level in the regulations.
That kind of information should be made available to the public. I believe the public are going to demand information about the quality of water. Whether or not we like it I believe local authorities are going to have to address the question of water quality in a much more planned and sophisticated way than is now the case. I do not think they can do this by carrying out their individual functions separately, doing X under the drinking water regulations, Y under the Water Pollution Act and pursuing the odd polluter here and there. There will have to be a planned approach to this issue.
The Minister did not deal in her reply with the question of why local authorities should not be required to adopt water quality management plans. That is the fundamental issue we are debating here. She spoke about resources. If we do not have a planned approach to water quality it leads to a waste of local authority resources. Only this morning one of my constituents rang me about a smell of diesel which is coming from a particular stream. There have been fairly constant complaints about this problem. Local authorities investigate such complaints but say that they cannot find anything. It would be a much better use of local authority resources to have a planned approach to the management of water than to have this kind of ad hoc response when local authorities send out an inspector or engineer to investigate whether something is being discharged into water about which a member of the public or a public representative has complained. Water is too valuable a resource with which to deal in this ad hoc way. I ask the Minister to reconsider the arguments I have made. I am not hung up about the five year review period about which I have spoken but I am very much hung up on the concept that there should be a mandatory obligation on local authorities to have water quality management plans carried out.
I agree with the principle of Deputy Garland's amendment. It embodies my idea that local authorities should be required to have water quality management plans. I agree with the principle of the amendment but it may be unrealistic to expect the first plans to be adopted within a period of one year. The adoption of the first water quality management plan will be a complicated matter because of the procedure involved, which is fairly analogous to the adoption of a development plan. The one year time limit is unrealistic but the principle of requiring a local authority to have such a plan is the important matter which we must tease out here.
In an ideal world perhaps it would be desirable to have water quality management plans for all water but, given the commitments of local authorities, the resources involved, etc., it would not be practical to have water quality management plans for the 12,000 kilo-metres of rivers, streams and so on in this country. I do not think such water quality management plans would be necessary for waters which are not polluted, unlikely to be polluted, and not the subject of any development in their catchment area and so on.
I accept fully the points made by Deputies Gilmore and Shatter in regard to water used for drinking purposes. That water is subject to very stringent controls. Not alone have we adopted and implemented the European Community directives dealing with the quality of drinking water but we have also adopted the directives dealing with surface water, water which it is intended to use for drinking purposes. There are regulations dealing with surface water before the drinking water is abstracted and the drinking water when it has gone through the treatment process. Those waters are subject to very strict controls at all stages.
I acknowledge that there have been problems and that is why such considerable expenditure is envisaged over the next decade. It is not true to say that the expenditure over the next decade is simply the capital sum which would have been spent anyway. We spent about £700 million over the last decade between sanitary services and public water and in many cases simply providing a public water supply in the first instance. The £1 billion being provided is in 1990 figures and will work out well in excess of that by the end of the decade. Much of that money will be spent on upgrading the supply system and improving the pipelines to which Deputy Gilmore referred. Many of these pipelines are corroded and outdated and much money will be spent on upgrading them. We want to get to the stage where all water used for drinking purposes comes within the very strict guidelines. Our priority will be to spend the moneys in the area of greatest need. A sum of £14 million is being spent on the Ballymore Eustace scheme which I think will be completed some time next year. This will ensure that the problems which existed in relation to the Dublin water supply system will be rectified.
We have to be realistic and practical when we are dealing with the expenditure of public moneys and the activities of local authorities. When the remaining 12 water quality management plans which are now under way — many of them are near completion — are completed, the water for which it is desirable to have water quality management plans will be taken care of. I have been so advised and I have no reason not to accept the advice that the water in respect of which it is desirable and necessary to have a water quality management plan is well under way or will be completed very soon. If it is the case that there is an area where a water quality management plan is desirable, then I would envisage using the powers under the 1977 Act to give such a direction. Very often it is not necessary to give the direction formally; it can be done by way of consultation and discussion with the local authority concerned. I would envisage using the direction only when a local authority refuse to involve themselves in the preparation of a water quality management plan.
Deputy Gilmore said he is not hung up on the five year review period. It is desirable, and should be the case, that water quality management plans, like any other plans of local authorities, for example, development plans, should be under constant review. The development plan has to be reviewed every five years. I am not certain if there is a need to be so specific in regard to water quality management plans but the Deputy expressed his willingness to be flexible about that matter.
It is not possible for me to accept the amendments. If the Deputies insist on pressing their amendments we will have to have a vote.
(Carlow-Kilkenny): I wanted to get in before the Minister finished. Obviously I am a member of a very enlightened local authority because when I asked two years ago at council level for a copy of the readings from the Barrow and Slaney Rivers they were willingly given and are supplied on a two monthly basis. Luckily the report is very favourable and the quality of water is good. However, that does not mean the people who live near the Barrow River are not concerned at the growth on the river bed. The quality of water is one matter but the quality of water in which fish can live is another. One of the industries involved is prepared to spend almost £1 million this year to try to stop warm water which causes growth on the river bed entering the Barrow River.
I hope the Minister does not mind me asking what effect the water management plan will have on, say, the Barrow and Slaney Rivers in my constituency. I do not mind if the Minister wants to take some time to answer that question but I want to know what changes there will be in the present system of carrying out tests and having a certain amount of control.
The main advantages of water quality plans are that first they indicate to the local authority where there might be a need to upgrade a sewage treatment works or matters of that kind; it gives them information on the river flow and so on, which would allow them to set appropriate conditions when granting water licences. That is an important element of water quality management, although it is not necessarily involved with planning. Anybody who is going to discharge waste or effluent into water is required to have a licence and that is a good safety valve for the local authority to ensure that they have control over the conditions under which such a discharge could enter waters.
Basically a water quality management plan allows the local authorities in the catchment area of a particular watercourse to have a planned and co-ordinated approach to the water in question and to have scientific and detailed information on the nature of the water, the flow of the water and so on. If any problems have been identified it will allow the local authority to make plans to rectify them.
I am disappointed that the Minister probably forgot the first question I asked after Deputy Gilmore's long contribution. I asked her to consider the question of putting some sort of time limit on local authorities submitting water management plans. Deputy Gilmore supported me in this but felt perhaps that the time limit I am looking for is a bit too severe. That may well be the case. I would like the Minister to comment on that. If she commented favourably on it, I could withdraw my amendment.
(Carlow-Kilkenny): It occurred to me to wonder whether this management plan is simply using nice words to cover what has been going on already and that it will be no more important than it is at the moment. Is this simply lovely language to describe nothing?
I do not think that is the case. It allows the local authorities in question to have an integrated approach to water quality management in their area. It would allow them, for example, to set quality objectives and to set perhaps the highest objective which would be the designation of the waters as being salmonoid. Such a direction might not be necessary short of a water quality management plan given the kind of detailed information of a scientific nature which would be necessary.
In relation to Deputy Garland's request, I will give him an assurance that I will make contact with the local authorities in question to ask them to bring forward as quickly as possible the completion of those water quality management plans that are under way. I do not know if that will satisfy the Deputy but that is the best I can do because they take such a considerable length of time that it is not possible for me to give a direction that they should all be completed by the end of this year. For example, the quality management plan in relation to Dublin Bay will not be completed before the middle of next year, despite the considerable allocation of resources.
On a procedural matter, we had a rather tortuous discussion about the procedure to be followed at the commencement of the debate. The Minister agrees with me that amendment No. 15 is distinct from amendment No. 14, but if I understood the Leas-Cheann Comhairle correctly, he suggested that if amendment No. 14 were passed, amendment No. 15 would automatically fall. They are not that inconsistent and I think the Minister agrees with that. Is it possible for amendment No. 14 to be taken first and then amendment No. 15 afterwards?
I understand that if amendment No. 14 is agreed to then amendments Nos. 15, 16 and 17 cannot be moved.
On that matter, it seems that amendment No. 14 needs to be made to the Bill. It would be rather odd to vote against it and would not make much sense to do so. I listened with interest to what the Minister said and it seems that in the context of the assurances she is giving amendment No. 15 may not be necessary. I certainly will not be opposing amendment No. 14 which is necessary, even though I take the point made by Deputy Gilmore in relation to requiring local authorities to make water quality management plans available. The Bill would be odd if we did not pass amendment No. 14. I just wanted to make the House aware that Fine Gael will not be opposing amendment No. 14.
I want to advise Deputy Gilmore that the effect of amendment No. 14 is to delete the section to which amendments Nos. 15, 16 and 17 refer. Therefore, the amendments would seek to amend something that no longer existed. It is open to all Deputies, of course, to raise this matter on Report Stage.
I am in much the same position as Deputy Shatter on this. I would not be opposed to amendment No. 14 but I wish to pursue amendment No. 15. If necessary I can withdraw it and bring it back in on Report Stage because it is an issue that should be addressed in the context of the Bill.
That would be preferable.
Amendment No. 18 is in the names of Deputies Quinn and O'Shea. Amendment Nos. 19 is consequential. Is it agreed that amendments Nos. 18 and 19 be taken together? Agreed.
I move amendment No. 18.
In page 13, lines 7 and 8, to delete "paragraph" and substitute "paragraphs".
This amendment relates to the licensing of trade effluent into sewers and the payments which would be set for such discharge. The problem I am trying to address here is where a local authority, in the interests of attracting industry to that local authority area, might drop their payments as against those of another local authority. What I am seeking is that regulations would be brought in as soon as is practicable by the Minister after the passing of this Bill by both Houses of the Oireachtas to ensure consistency between authorities lest some authorities choose to act against the spirit of the legislation and drop payments to attract industry, as this certainly would be defeating the purpose of the Bill.
Given the wide variety of the nature of discharges to sewers and the degree of treatment undertaken by sanitary authorities, it would not be feasible to make regulations which would provide for the determination of payments in respect of all the discharges of the country or which would impose uniform charges for such discharges. Sanitary authorities already have powers to impose charges for effluent discharges to their sewers and these will not be restricted in any way by the provisions of the Bill. Regulations are not, accordingly, a prerequisite for the imposition of these charges. It should be remembered that any payment specified by a sanitary authority will form a condition of the licence issued under section 16 of the Principal Act and, accordingly, may be appealed to An Bord Pleanála. It would be my intention, however, to issue guidelines very shortly to local authorities on the manner in which such payments should be calculated taking into account the variations involved.
I welcome the fact that the Minister intends issuing guidelines. Can we take it that these will be issued as soon as possible after the Bill is enacted?
I move amendment No. 21:
In page 16, before section 16, to insert the following section:
16.—(1) The following section shall be substituted for section 21 of the Principal Act:
`21.—(1) The Minister may by regulations provide for—
(a) any procedural matter in relation to appeals under sections 8 and 20, and
(b) such incidental and supplementary matters (including the modification of any provision of the Local Government (Water Pollution) Acts, 1977 and 1990, and the Local Government (Planning and Development) Acts, 1963 to 1983) as appear to the Minister to be necessary or expedient for the purpose of such appeals.
(2) Sections 6 (2) (d), 19 (2) (d) and subsections (1) (a) and (9) of section 28 shall, as respects such appeals as aforresaid, have effect as if the references therein to the Minister were references to An Bord Pleanála:
(2) The Local Government (Water Pollution) Act, 1977 (Transfer of Appeals) Order, 1978 (other than Article 4) (which order was made under section 21 of the Principal Act) shall continue in force and may be amended or revoked by the Minister by order.'.
This is an amendment to cover drafting points. Section 16 (1) substitutes a new section for section 21 of the 1977 Act. Section 21 (1) as proposed to be inserted by section 16 of the Bill as drafted is superfluous as provision is already made in both sections 8 and 20, as substituted by this Bill, for appeals to be made to and determined by An Bord Pleanála.
Section 21 (2) and (3) as proposed to be inserted by section 16 of the Bill are effectively restated in subsection (1) of the proposed amendment. Section 21 (4) of the Bill is covered by section 21 (2) of the amendment — the references to sections 8 and 20 are deleted as superfluous. As these sections are being substituted by the Bill, they no longer contain references to "the Minister".
Section 16 (2) of the amendment is identical to the provision in the Bill.
I presume we are going to have a water management plan for super fluid now. This section is replacing "the Minister" with "An Bord Pleanála". That is a very laudible objective. Perhaps we should do that in other areas. Joking aside, I think this is a good amendment and we are happy to support it.
There is an amendment in the name of Deputy Garland.
Deputy Garland is not here. I think in his absence his amendment must fall.
(Carlow-Kilkenny): Section 23 (1) (b) refers to a person who “is discharging, or causing or permitting the discharge of, trade effluent or sewage effluent or any matter to any such waters,”. That is a serious crime. The local authority may “require the person to give to the local authority in writing, within such period (being not less than 14 days) beginning on the date....” Can a person continue to pollute for at least a fortnight? Is there some other way to prevent that happening?
He is entitled to discharge if he has a licence.
(Carlow-Kilkenny): Suppose he has not a licence, if he is discharging effluent, should he not be closed down immediately and arrested, if necessary? You could hardly be given a licence to put effluent into a river.
Obviously if he has not a licence, the Deputy is right, he will be prosecuted.
(Carlow-Kilkenny): Would that not give him scope? Does that not tie the hands of the local authority to give at least 14 days' notice?
The main purpose of section 17 of the Bill is to seek information. I do not agree with the Deputy's contention that this gives somebody power to pollute.
(Carlow-Kilkenny): It gives him 14 days at least.
No, I think the Deputy misunderstands. That is in relation to the soliciting of information by the local authority within 14 days to respond.
(Carlow-Kilkenny): If they go to the bother of writing to a person should they not say, “You are polluting the river; stop immediately” rather than saying they are giving him a fortnight to reply to them.
I think the Deputy misunderstands. The section does not interfere with the local authority's right to either issue a section 12 notice or to take enforcement proceedings against somebody who is conducting a pollution offence. This section refers to the soliciting of information by the local authority and 14 days is given to the person from whom the information is sought to respond. If somebody is involved in a pollution incident the local authority can initiate a prosecution and not delay the matter 14 days, or can give a direction that the pollution would stop.
(Carlow-Kilkenny): The Minister used the word “superfluous” a while ago. Is that section not superfluous? If someone is polluting why do you want information on it if you have to close it down?
It seems that this section is substituting section 23 of the principal Act and I presume will be invoked where a local authority are concerned about substances going into the waters but are not sure what the substances are. If so, the point Deputy Browne makes, a very valid point, is presumably if a local authority have a concern that discharges going into the water are of a polluting nature, a prompter response than 14 days should be required. The section provides "not less than 14 days". It could be 21 or 25 days or whatever. There may be circumstances where a local authority deem it necessary to hand deliver a letter to an industrial operation, an agricultural operation or a fish farming operation saying to them; "Within 24 hours we want to know what you are putting into the waterways." The local authority, well equipped, should be able to analyse what is going in anyway, but their concern is that if there is an urgent need to know what is going on the 14-day requirement here seems to constrain the local authority unnecesarily.
It would seem that you could have a requirement which says that the local authority can require such information within 24 hours where necessary, or longer. "Longer" can mean one, two or three weeks. There may not be a great concern but there may be a curiosity to find out what is happening. The local authority might have carried out tests and discovered nothing particularly detrimental but, where a local authority is urgently seeking information, 14 days seems a rather odd restraint on the obtaining of that information and, where someone is polluting, gives them unnecessary leeway.
I take the Minister's point that other sections deal with enforcement and that this is an information seeking section. Nevertheless, in seeking that information a local authority may need to get that information very rapidly to carry out remedial works or to put in place an operation to delimit the impact of a pollution incident. We are concerned about the 14 days which, apparently, is the minimum period within which somebody can be required to respond. They can be given longer but 14 days is a minimum. It seems a rather odd requirement in the type of circumstances that could arise.
Where a local authority know that a pollution incident has occurred or where there is a potential pollution problem they can invoke section 8 of the amending Bill which will allow them, if necessary, to get a High Court injunction to stop the pollution. The purpose of this section is simply to get information in relation to licences, the reviewing of licences or matters of that kind, or simply as a way of soliciting information in relation to discharges or whatever. It is not intended to deal with a pollution incident. That might satisfy Deputy Browne.
(Carlow-Kilkenny): I am only going on what is in the Bill. It should either be deleted or made practicable. If you are on a county council and somebody is polluting a river——
This section does not apply where pollution has occurred.
Deputy, you seem to be confronting the Minister, I will call you again.
(Carlow-Kilkenny): I do not want to argue with the Minister. However, if a county council think it worth their while to write to a polluter who is discharging, causing or permitting the discharge of trade or sewage effluent, surely they will need information within a fortnight? It is absurd to have this clause in the Bill.
This section will not be used in a case where pollution has occurred. It is for the local authority to get legitimate information if they are considering giving a licence or if they have given a licence and want to review the conditions and so on. The section will not be used in relation to giving someone a minimum of 14 days if they have committed a pollution offence. The local authority can take immediate action if they feel pollution has occurred, they can take the matter before the courts, have it stopped and have the person charged.
(Carlow-Kilkenny): I accept the Minister's explanation without understanding it.
I move amendment No. 25:
In page 18, between lines 34 and 35, to insert the following paragraph:
(c) the standards will incorporate as a minimum those specified in "European Communities (Quality of Salmonid Waters) Regulations, 1988 (S.I. 293)" and subsequent implementations of the standards set out in the EC Council Directive 78/659 "On the quality of fresh waters needing protection or improvement in order to support fish life' and the standards proposed in other EC directives relating to the quality of inland and marine waters.".
This is an amendment to section 26 of the principal Act which refers to the quality standards and the EC Directive of 1978 specifying standards for Salmonid and cyprinid waters. Part of this directive was belatedly implemented in 1988. We assume that these are the standards to be used for the purpose of the principal Act. The Bill before us, however, does not clarify this matter. The remainder of the standards in the directive should be added to the statutory instrument by amendment as soon as possible, at least not later than six weeks. We particularly feel that the biochemical oxygen demand standards should be properly implemented specifying that the limit is three milligrams per litre for salmonoid and six milligrams per litre for cyprinid.
Ireland has managed to keep its environment much cleaner than other EC countries The directive specifies in Article 8 that the standards should not be used to allow an increase in pollution. This article in particular should immediately be incorporated into Irish law before it is too late. This is a problem to which I will probably be referring many times in the House, that in many cases we are well below EC standards simply because of the lack of development of heavy industry. There is a tendency to sit back and say that as long as we are below EC standards everything is all right. It is not all right; if our standards are already well below those of the EC we should keep them that way.
Such a statutory instrument, combined with Statutory Instrument 293 of 1988, should be specifically referred to in this Bill as the standards for the purposes of section 26 of the Principal Act. We, therefore, demand that the Minister incorporate this extremely important subsection into section (18) of this Bill.
I am not quite certain of the meaning of this amendment, nor its purpose as it is not very clear. Section 26 of the 1977 Act, which section 18 of the Bill seeks to amend, is a general enabling provision allowing the Minister to make regulations setting quality standards for waters, trade and sewage effluents and standards in relation to methods of treatment of such effluents.
The relevance of the amendment proposed to standards of this range is not clear. In any event, I would be opposed to anything which might restrict the existing powers to make high quality standards. If the Deputy is particularly concerned about adopting standards which have been set under EC Directives his concerns are unfounded. Such directives usually incorporate as a standard feature a requirement obliging member states to transpose the provisions of the directive into national law. Therefore, a specific requirement of this nature in relation to transposition is not needed in the Water Pollution Act. Salmon can be found in almost every river in the country whereas in many other countries you cannot even find fish. Our aim is to have all our waters designated as salmonid waters to try to reach the highest possible standards. That is the intention and the aim as far as possible. Given the different standards necessary for waters, trade and sewage effluents and so on, the purpose of the Deputy's amendment is not clear.
I am sorry the Minister is not too clear on the purpose of my amendment. I think the wording is clear. However, I accept that she is trying to ensure that as many rivers as possible will comply with the salmonid standards rather than the cyprinid standards as this is very important. Perhaps the Minister will have another look at this amendment on Report Stage.
The amendment is superfluous.
There is an amendment to this section in the name of Deputy Shatter. Amendments Nos. 27 and 28 are related and may be discussed together.
I move amendment No. 27:
In page 19, subsection (1) (a), line 17, after "matter" to insert "first".
Subsection (1) states:
Where trade effluent, sewage effluent or other polluting matter enters waters and causes injury, loss or damage to a person or to the property of a person, the person may, without prejudice to any other cause of action that he may have in respect of the injury, loss or damage, recover damages in any court of competent jurisdiction in respect of such injury, loss or damage—
(a) from the occupier of the premises from which the effluent or matter entered the waters unless the entry to the waters was caused by an act of God or an act or omission of a third party over whose conduct such occupier had no control being an act or omission that such occupier could not reasonably have foreseen and guarded against, or
(b) if the entry to the waters was occasioned by an act or omission of any person that, in the opinion of the court, constitutes a contravention by the person of a provision of the Principal Act or this Act, from that person.
The amendment I am seeking to insert is in line 17 of the section and is to insert "first" after the word "matter" so that it will read "from the occupier of the premises from which the effluent or matter first entered the waters". The Minister's amendment is to delete the words "entered the waters" and substitute the word "originated". The concern here is basically to ensure that somebody could not be the subject of prosecution for polluting matter travelling through waters on their land when they are not responsible for the polluting matter being in the waters. In other words, to take it in the agricultural context, if a river runs through the land of two farmers and if farmer A is engaging in bad farming practices and as a result seriously pollutes a river and farmer B is not at fault because the river simply flows through his land and carries the polluting matter through the land we want to make sure that farmer B could not be held responsible. The fault lies with farmer A. There is only a semantic difference between the amendment tabled by me and that tabled by the Minister. They would both achieve exactly the same result. They are both designed to ensure that the person who is responsible for allowing polluting matter to enter the waters is the person who can be held to be civilly liable under this section. I assume, political life being as it is, the Minister will wish us to accept her amendment rather than her accepting my amendment. I do not care which of the two amendments are accepted because they both achieve the same objective using different wording.
I propose in amendment No. 28, in page 19, subsection (1) (a) line 17, to delete "entered the waters" and substitute "originated." What Deputy Shatter has said is correct. The purpose of my amendment is to clarify that only a party from whose premises or lands the cause of the pollution originated will be liable for damages under section 20. On a literal interpretation of the Bill, as worded at present, a person who is not in any way responsible for pollution could be held liable for it simply because the pollution, though coming from another person's property or premises, managed to reach waters via that person's premises or property. Clearly this was never the intention and the amendment is intended to rule out the possibility of an innocent party being held liable for damages caused. It is clear that Deputy Shatter is also concerned about the possibility of a miscarriage of justice. However, we are advised that our amendment, from a drafting and legal point of view, is preferable and I would ask Deputy Shatter, given that he indicated his willingness to accept either amendment, to be agreeable to accept the wording "originated" rather than "first."
I would say purely for the record that from a drafting and legal point of view there is not a hap'orth of difference between what the Minister is saying and what I am saying. Her response is the usual ungenerous response you get from departmental briefs which are generally designed to ensure that whatever an Opposition party propose, it is indicated to be inferior to what emanates from the Department. There is not a whit of difference between the two proposals and I am quite happy to accept the Minister's amendment.
From my study of the Bill, I think the Minister's amendment is superior to Deputy Shatter's amendment.
That could be put down as a constituency retort.
Deputy Shatter is not pressing amendment No. 27.
I would just respond to Deputy Shatter. It is my intention, certainly in so far as I can, to be co-operative and to accept amendments regardless of who suggests them. Deputy Shatter's amendment mentions the word "first". It is possible that a septic tank or a slurry pit could burst, the polluting material could flow over land and could first enter water on an innocent person's farm. It is on that basis that the word "originated" was suggested. Where the actual incident originated is where the offender is and that is where the law should apply. We are keen on the word "originated" rather than the word "first" because the pollution could enter the water first on an innocent person's farm even though the accident occurred elsewhere.
That is an original explanation.
Deputy Shatter has already indicated that he is accepting the Minister's legal interpretation of the provision.
I have visions of slurry passing through fields all over the place before it enters a farm.
I move amendment No. 28:
In page 19, subsection (1) (a), line 17, to delete "entered the waters" and substitute "originated".
I move amendment No. 29:
In page 19, lines 26 to 30, to delete subsection (2).
Subsection (2) of this section provides for an exclusion in respect of the bringing of proceedings to seek damages for pollution. It provides that subsection (1) does not apply to the entry of trade effluent, sewage effluent or other polluting matter to waters by virtue of anything specified in section 3 (5) or 4 (2), as may be appropriate, of the Principal Act or under and in accordance with a licence under section 4 of the Principal Act or section 171 of the Act of 1959. I propose the deletion of this section. I generally wanted to make a point on this subsection in that I take the view that if damage results from pollution, no matter where the pollution comes from, it should be possible to seek compensation for the loss suffered. As I understand this subsection, it means that if you pollute under licence you can never be liable for damages.
It is the local authority who make the decision to issue a licence but in doing so they may be wrong. The people who operate under licence still have a responsibility to ensure that what they do does not cause damage and the local authority also have such a responsibility. If a local authority wrongly issue a licence which allows pollution of a damaging nature to take place — of its nature pollution is damaging but a very small amount of pollution may have no great impact on waters or rivers — I do not believe the person who is licensed or the local authority should necessarily be immune from civil liability. I tabled this amendment to delete the section, to give us an opportunity to tease out this issue, to get the Minister's response and to have on the record of the House an explanation as to the detailed thinking behind subsection (2).
Of course a person is not excluded from prosecution simply because he has a licence.
The question of civil liability arises.
He may not comply with the conditions of the licence. The effect of this amendment would be to extend the civil liability provision to situations and effluent discharges which are already outside the scope of the 1977 Act and of the Bill. These situations and discharges are identified in section 3 (5) of the 1977 Act, as amended by the Bill, and in section 4 (2) of that Act. They cater, for example, for discharges from vessels and marine structures to tidal waters, which are of course addressed under legislation which is the responsibility of the Minister for the Marine. It would be wrong to interfere with this separate legal code through a provision of this Bill.
Concerns have been expressed that only the farmer will be made civilly liable for pollution damage, However, subsection (2) will not have this effect. The exclusions which are being provided for are severely limited. In the case of trade effluent discharges the industrialist will be required under section 3 (5) to have a discharge licence and to comply with its conditions. Failure on either count will render him civilly liable for any damages or losses due to pollution caused.
The procedure for granting licences to discharge effluent provides full opportunity for public participation in the process of determining conditions so that waters and their uses are protected. The public may inspect licence applications and comment on them to the local authority concerned. Should the local authority's decision on conditions be regarded as unsatisfactory any member of the public may appeal to An Bord Pleanála, which may grant an oral hearing of the issues involved before finally determining the conditions of the licence. The outcome of this process may entail significant expenditure by the industrialist in providing treatment works to satisfy the conditions of the licence. In these circumstances, I believe it would be unreasonable to impose a civil liability for any pollution caused while the effluent discharged complies with the licence conditions. The industrialist can hardly be blamed for any pollution in such cases.
Should such cases arise the proper course to adopt would be for local authorities to avail of their powers, which are being extended by the Bill, to review the licence and impose more stringent conditions. Failure to observe these would render the industrialist liable for pollution damage.
The position in relation to local authority sewage discharges is very similar. Authorities will be civilly liable once standards for sewage effluent are set under section 26 of the 1977 Act should they fail to comply with them. I consider that the amendment is seriously flawed for the reasons I have given.
I would pursue this matter further with the Minister. Let us assume that a local authority impose stringent conditions for the issuing of a licence but the person seeking the licence appeals to An Bord Pleanála and they water down the conditions. In that case a licensee is operating and complying with conditions but nevertheless despite that fact they may be seriously polluting because the conditions are not stringent enough. Perhaps An Bord Pleanála did not understand the technical information made available to them or perhaps they lacked the expertise to assess what conditions were necessary. In recent years we have seen on occasions appalling decisions by An Bord Pleanála, appalling errors with regard to decisions made to affect the built environment. Some of those decisions have resulted in compensation claims being lodged successfully against local authorities in two cases; some have resulted in appalling structures being put in place which offend the eye and probably despoil the built environment, but at least beyond that, they do not cause damage. If An Bord Pleanála get it wrong here, a serious pollution incident could result and serious damage could be done. If, for example, a farmer finds that his whole operation is rendered unviable because of the manner in which waters adjacent to his land have been polluted due to a failure in the licensing process, are we saying that because the person who caused that pollution incident complied with the requirements of the licence, albeit defective, he cannot be held civilly liable for the damage that has resulted? Are we saying he is immune by virtue of the bad decision making perhaps by a local authority or An Bord Pleanála? Are we saying that the person who has suffered loss will receive no compensation? That is a serious question. We are now giving An Bord Pleanála a new power. As I said earlier, I welcome the idea of An Bord Pleanála dealing with this rather than the Minister, but that is subject to the proviso that An Bord Pleanála will have the necessary internal expertise to deal with these matters, and they may need additional staff and technical help in that context. I am sure the Minister will explain to us what additional resources will be provided to An Bord Pleanála so that they can deal properly with these matters.
The Minister is providing a blanket immunity from civil liability and I think that is a matter of concern. I know the farming organisations have put it in a simpler way: they say the farmer can be prosecuted but the industrialist cannot. The issue is not as simple as that, but it is a serious issue. I can see the possibility in two or three years time of myself, Deputy Gilmore, Deputy O'Shea, Deputy Garland or Deputy Browne rising in this House and yelling blue murder because some serious pollution incident has resulted from a failure of An Bord Pleanála to make the right decision and to impose the correct conditions, and the person who has been detrimentally affected — whether in agriculture, fish farming operations or in an industrial development that requires clear water — finds that he has no one he can turn to for compensation. This is a serious matter.
I am not saying the amendment I have tabled is necessarily right; it is a complicated issue and the simple deletion of the subsection may not resolve the problem, but it is an issue we need to think about and to address. I do not think we have considered the problem in regard to the Bill in detail yet.
The way Deputy Shatter puts it it would be very serious if the licence conditions were such that they would lead to widespread pollution or that the conditions were being watered down by An Bord Pleanála.
Many of the points the Deputy made are more relevant to the section dealing with the licence, the method of issue and the conditions attached. In the context of the proposed environmental protection agency, it is the intention to give the agency powers in relation to the matter because there is a need to have uniform standards for water licences and air pollution licences. The terms and conditions of many licences that never get near An Bord Pleanála can vary from one local authority to another. If there is a problem in relation to the conditions of the licence — and I have no doubt that can happen — we must deal with it at the stage setting conditions for the licence rather than in the context of civil liability. I think it would be unfair to a person who complied with the conditions imposed to make him civilly liable for a pollution incident. The local authorities, under the power being given to them in this amending legislation will be able to review the licence and if there is a pollution incident to immediately carry out a review of the licence and impose additional conditions if necessary. The whole question of licensing, under this legislatin and the waste and air pollution legislation needs to be co-ordinated, standardised and updated by a body that is capable of imposing the kind of conditions that are necessary in the different circumstances,. That function will be given to the proposed new environmental protection agency. Perhaps we could tease the matter out more appropriately at that stage. I do not think it would be fair in the context of the Bill to make somebody who has met all the conditions set by the legitimate licensing authority of the State, to make them civilly liable for damages. I think the problems the Deputy is dealing with are of a different and much more fundamental nature and can more appropriately be dealt with in a different context.
I will respond to those points. We have a large number of local authorities who still do not have any great expertise in these areas. At present an applicant applies for a licence and it may not occur to someone who is adjacent to the place to which the licence will relate to raise any objections. The local authority may get their standards wrong or later on An Bord Pleanála may get their conditions wrong. I do not accept what the Minister is telling us that if and when we have an environmental protection agency all this will be sorted out. Less than a month ago we had a Bill before this House to establish such an agency which the Government voted against. We keep hearing about the environmental protection agency Bill, which the Government will produce but no such Bill is before the House as of yet. I do not believe the Government will have such a Bill passed by the Oireachtas this side of the summer recess. The Minister might surprise me by publishing the Bill this side of the summer recess but I certainly do not think it will be passed this side of the summer recess.
If the Fine Gael Bill pushed the Government into dealing with this matter more quickly than they otherwise would have done, that is fine and I do not object to that. What we have before us is the Local Government (Water Pollution) (Amendment) Bill and we do not have an environmental protection agency. I do not know when that legislation will go through. We do not have the uniformity throughout the country the Minister is talking about, but even if we had I am not sure how the environmental protection agency would interact with the local authorities and An Bord Pleanála. Certainly that is not particularly clear from the Government statements to date. The role of the agency seems to be a moveable feast and the agency appears to have different functions depending on what day of the week and which Minister is talking.
The Minister makes the point that if someone who has complied with the terms of the licence causes a pollution incident they should not be liable for damages, because they had complied with the terms of the licence. But the local authority should be able to change the terms of the licence, and of course, the legislation provides for a review of the licence, but that will not solve the problem of the person who suffered serious loss or damage. Someone will have to pick up the bill for that in the area of civil liability. If it is recognised under subsection (1) that it is reasonable that we have civil liability in certain instances, then the exclusions in subsection (2) are far too wide. There are three people who could be held liable. The first of these is the person who causes the pollution regardless of whether they have complied with the terms of the licence. If the pollution resulted because the licensing conditions were not sufficiently secure and detailed it would be my view that civil liability should attach to the local authority as it is they who are ultimately responsible for issuing the licence. This would ensure that the local authorities would take care and take into account expert advice in the issuing of licences.
If An Bord Pleanála vary the original conditions imposed by the local authority so as, to use the phrase I used earlier, water them down or make them less stringent, which is the more correct phrase to use, should it not be An Bord Pleanála who should be held liable? It would be unfair to attach liability to the polluter who was licensed to happily pollute away by An Bord Pleanála if his activities result in loss or damage. If the polluter is not to be held liable it is the board or the local authority who should be held liable. Why should the innocent party who was not involved in the first place and who suffers a loss as a result of a pollution incident be left with no one to turn to for compensation with blanket immunity attaching to the polluter, the local authority and An Bord Pleanála?
This would not make sense and I suspect it would be unconstitutional because the view that the State is immune from civil liability was overturned about 25 years ago by the courts. In relation to this blanket immunity, I suspect that no matter what the section says An Bord Pleanála or the local authority might end up being properly sued by the person who suffers a loss because of their failure to impose stringent conditions. If there is a residual right to seek compensation against the local authority or An Bord Pleanála we should deal with it in this legislation and not leave it to the judges to make a declaration following some appalling incident in the future when the local authority or An Bord Pleanála get it wrong.
This is a serious issue. If subsection (1) is required, as I believe it is, that blanket immunity should not apply. It would mean of course there would be an incentive for those who seek licences not to minimise the precautions they put in place to avoid pollution. If they could ultimately be held liable if something serious occurs this would act as an incentive for them to take into account the precautionary principle of taking all reasonable action. It may also delimit appeals. Where local authorities impose stringent conditions there would be less of an incentive on the part of a person seeking a licence to appeal to An Bord Pleanála to have the stringency of those conditions reduced.
The discussion on this amendment has centred around cases which could arise following the issuing of a licence. The intention behind subsection (2) is that the option of civil liability would not apply in a number of cases specified in the subsection. It might be worthwhile going through these cases to see the extent to which civil liability is being limited. The first section specified is section 3 (5) of the principal Act which I sought to delete on an earlier amendment. During the course of the debate on that amendment the Minister of State gave an undertaking that she would examine the amendment. The House will recall that I made the point at that time that a number of activities are exempt from the general prohibition on entry of polluting matter to waters. The ESB in carrying out certain works under the 1925 Act are exempt as are Bord na Móna, local authorities, harbour authorities under the Harbours Act or somebody operating under a licence made under the Foreshore Act or the Harbours Act. I drew the attention of the Minister of State to my concern that under the legislation enacted in 1925, 1936, 1945, 1946 and 1949 those bodies are allowed to do literally what they like. Obviously that legislation was drafted at a time when there was less public concern or information available about the danger of water pollution but nevertheless they empower those bodies to carry out very extensive works.
What is being proposed in section 20 (2) is that nobody would be entitled to take a civil action against any of those bodies and nobody would be able to take an action against a person who pollutes water while doing a harbour infill under the Foreshore Act or the Harbours Act. Similarly a local authority, Bord na Móna and so on are all exempt.
Section 4 (2) of the principal Act deals with exemptions in the licensing of trade and sewage effluents. That subsection does not apply to discharges to tidal waters from vessels or marine structures, from a sewer or the subject of regulations under subsection (10). Some concern has been expressed in the House about the possibility of pollution being caused as a result of the discharge of matter from ships. If they cause pollution no civil action may be taken against them under this Bill. As I understand it, section 171 of the 1959 Act is the section the fisheries boards have had most difficulty getting around when trying to pursue a local authority. Therefore what is being proposed is not just the granting of exemptions to bodies who hold licences but the exempting of a range of activity which could result and which we know does result in the pollution of waters. It is proposed that a third party would not be able to take a civil action.
Farmers and farmer organisations, and Deputy Shatter referred to this, have expressed some concern that this legislation seems to be pointed at the farming community more than at any other section of the community. If subsection (2) is left in the Bill farmers will have some grounds for complaint that they are being targeted more than those in any other area of economic, industrial or marine activity. I sought the deletion of section 3 (5) of the principal Act in an earlier amendment for the same reasons that Deputy Shatter has advanced to seek the deletion of subsection (2). For much the same reasons that he advanced, I had mixed feelings about whether that was the correct way to go about it but, in fairness, the Minister undertook to have a look at those exemptions between now and Report Stage. This is a serious matter and the Minister should consider the exemptions. If she does not do so and Deputy Shatter presses his amendment, it is my intention to support it.
It is important to remember when talking about licences that the licence is a licence to discharge and not a licence to pollute. I believe strongly that it is at the licence conditions stage that we must deal with the problems. The review procedure which will follow the passing of the Bill will allow for that. It would be unfair to make people who fulfil the conditions imposed on them by the statutory licensing authorities liable for anything that might occur. The discharges that are licensed, particularly the toxic or dangerous discharges, are covered by the standards which are in place. There are not that many dangerous or toxic substances discharged into our waters that could cause pollution.
Let us take a different example. If a person was given planning permission to construct a building and, following the completion of the work in accordance with the permission, it was considered that the building was ugly and did not comply with the conditions from an aesthetic or environmental point of view, would it be reasonable to ask that person to knock the building down? Would it not be the fault of the planning authority that did not impose certain conditions in the first place?
I do not think we can put unreasonable demands on people who are fulfilling the legitimate conditions imposed on them by a licensing authority. Deputy Gilmore raised a point about exemptions generally and I should like to tell him that I agree there is a need to review them. That will take some time. I do not see any point in giving the list but it is important to bear in mind that the Minister has power under the Bill to review them. The only circumstances where the exemptions should be continued are where they are absolutely necessary for the supply of a particular public utility that could not be provided without such exemptions. Generally, the exemptions are given in the licences but there is a need to review them. It is my view that that review should take place as a matter of urgency.
I cannot accept the suggestion that we could make a person liable under civil law for an incident that occurred on foot of a legitimate licence held by an industrialist and so on. However, I should like to give the point raised by Deputy Shatter some further thought. He was concerned about the innocent victim and he asked from whom such a person could seek damages. The House will recall the Hanrahan case where considerable damages were given to a farmer by the Supreme Court. I am not advocating that people should have to go to the Supreme Court in order to obtain damages and for that reason there may be a need to consider that possibility. I do not want, off the top of my head, to give a response to the point raised by Deputy Shatter but I consider it to be a valid one. If it is the case that an innocent person was adversely affected or their livelihood put at risk as a result of an incident that might occur on foot of a legitimate licence we will have to give some thought to it between now and Report Stage. The principle of simply making a person liable for a pollution incident that would occur on foot of a licence is rare. I am not sure if it has happened. It would be intolerable if licence conditions were so lax as to allow that to happen because the purpose of the licence is to allow a discharge but not to allow pollution. The purpose of having a licensing system is to avoid pollution and to control discharges to waters by legitimate authorities.
The Minister has now headed into something that I was about to suggest to her as an illustration of the problem we are facing. Let us take the Hanrahan case as an example. In that case the family alleged that air emissions resulting from a particular operation in the Merck Sharp and Dohme plant were having a serious impact on their farm, their cattle and their health. Various State bodies, the local authority, the Department of Agriculture and others carried out assessments and reported back that none of this was the fault of Merck Sharp and Dohme. The Hanrahans litigated through the courts and eventually the Supreme Court found that what was happening to them on their farm was the fault of Merck Sharp and Dohme and they were entitled to compensation.
On the basis of the assessments carried out by the different State bodies let us assume that Merck Sharp and Dohme had been operating under a licence issued under the Air Pollution Act and the State bodies said that there was no problem, that this was a figment of the Hanrahans' imagination. Let us assume that we have a plant like that the Merck Sharp and Dohme which is operating a process which requires the issuing of a licence to discharge into waters. Let us assume that the State body, be it the local authority or An Bord Pleanála issue the licence and attaches whatever conditions they regard as appropriate for the discharge in the light of what they know of the process being carried out by the concern. Again, let us assume that that process is not one that people worldwide are very familiar with, that it is a new chemical or a new pharmaceutical process and that it is believed that the licence conditions attached will ensure that the discharges do not result in pollution. Let us assume that downstream a farmer complains that his cattle are dying because they have been drinking water out of that stream and the State body, as in the Hanrahan case, carry out a check and are of the view that the complaint is a figment of the farmer's imagination and that the operation has not caused the problem.
However, the difference between the position of that farmer, following the coming into force of the provisions of this Bill, and the Hanrahans' is that that farmer cannot litigate through the courts and establish that the cattle on this farm died as a result of discharges into the waters. If the Hanrahan v. Merck Sharp and Dohme case had arisen in the context of Merck Sharp and Dohme having been issued with an air pollution licence which gave them an immunity from civil liability, the Hanrahans would not have succeeded in their claim. I welcome the Minister's response to my earlier remarks, that she wishes to have a look at the problem between now and Report Stage. There is a serious problem involved.
One of the problems we have in analysing legislation is that one can come up with all sorts of potential scenarios that are more in the realm of fiction than reality. On occasions there is a temptation for those on the Opposition benches to do that in an effort to make life more difficult for the Minister of the day. I do not believe in that approach. The Minister hit home base on the problem when she referred to the Hanrahan case because that was a classical example of all State bodies getting it wrong but, fortunately, that family were eventually able to prove their case through the courts and, as a result, will ultimately get damages. I do not believe we can be certain that in issuing licences through local authorities, through An Bord Pleanála or through the fictitious environment protection agency that no doubt one day will see the light of day, we will always get it right. If that sort of incident does result someone must be liable to pay compensation. If we retain subsection (2) in the Bill as it is and enact this legislation there will be a blanket immunity, an immunity, incidentally, that may be constitutionally unsound — I only say "may" because there is always the possibility that the courts could uphold it.
I conclude by saying that if the Minister is willing to look at this amendment again in the context of our coming back on Report Stage I will not press the proposal to delete subsection (2) at this stage. I hope the Minister will take the view that the discussion we have had on this section is a serious discussion designed to improve the Bill and deal with the problem that arises under it. I would say to the Minister, because of the nature of that problem, that unless she comes forward with an appropriate amendment to deal with it on Report Stage we will be pressing the issue on this side of the House to a vote.
I would like to be as helpful as I can and I want the legislation to be as reasonable as possible. I want to ensure that if there is a situation, albeit very rare, where somebody's livelihood could be put at risk, obviously one would have to look at this issue. If natural justice cannot deal with the problem there may be a need to do something else. Without making any particular promise I will have the matter examined, I will take advice in relation to it and I will, if possible, come back on Report State.
Amendments Nos. 30, 31, 32, 36, 37 and 38 form a composite proposal while amendment No. 35 is an alternative. Is it agreed that amendments Nos. 30, 31, 32, 35, 36, 37 and 38 be taken together for discussion purposes? Agreed.
I move amendment No. 30:
In page 19, subsection (2) (a), line 47, to delete "make" and substitute "prepare draft".
The amendments tabled here are designed to tackle a problem which arises under section 21 as originally drafted. This section lays down extensive provisions for local authorities to make by-laws that could directly impinge, in a dramatic way, on the ordinary running of a farm. By-laws can become legally binding under this section and render a person liable to criminal prosecution and conviction without any consultative process having to be engaged in as regards the content of the by-laws.
The amendments I propose to this section provide for the making of draft by-laws which would first have to be published for public comment and, 60 days after their publication, could be approved by the Minister for the Environment, subject to amendments, following his considering representations made to him by any person or body who wishes to make representations — and also in the context of any comments made by the water pollution advisory council, though that looks as if it will not have a very long life because the Government intend to abolish it. That is in section 30. Following the approval of the draft by-laws the amendment proposes that they then be laid before each House of the Oireachtas and that they do not become operative unless approved by each House. This would radically change the provisions in the present Bill and provide protections in the area of agriculture that are not contained in the Bill as published while also enabling by-laws to be made to provide protection against water pollution.
One of the curiosities about this section is that following the by-laws being made a person who contravenes them can be guilty of an offence. However, after they are made they have to be published in Iris Oifigiúil, notice of their making, the area to which they apply and the place where copies may be purchased or inspected has to be published in newspapers. The procedure appears to be that the local authority send draft by-laws to the Minister and he approves them. If anybody is in breach of the by-laws they commit a criminal offence but having made them they can be advertised in Iris Oifigiúil. Persons aggrieved can then complain to the Minister and try to have the by-laws amended. That struck me as being a very peculiar process. It struck me that a better approach was one whereby the local authority initially engaged in a consultative process and that thereafter the by-laws would go to the Minister and he would consider representations made and then the by-laws could be made. It is only after the consultative process and after the by-laws had been made that one could be liable for a criminal offence. It seemed to be putting the cart before the horse to suggest that the by-laws could be secretly made between a local authority and the Minister and brought into being to create criminal offences, only at that stage would they be circulated in the area and people notified and that after that they could be amended.
The purpose of having the by-laws laid before the Oireachtas, which is an unusual procedure, in relation to by-laws was to allow this House, because of the importance of these by-laws and the manner in which they may affect the agricultural community and because of the danger that the by-laws would be based on a lack of understanding of ordinary farming practices, to at least review initially the by-laws before they would become law. It is far too simple to lay down in by-laws that in particular months, particular practices are allowed in a particular area and in other months they are not allowed. The reason it cannot be laid down in that way is that particular practices that are likely to cause pollution or create problems may depend on one very simple thing, over which none of us has any control, the weather. In wet periods, for instance, it may not be environmentally sound to engage in certain farming activities while in dry periods that may pose no danger. The weather has become so variable that I am not sure that by-laws of the nature the Minister envisages may be made under this legislation.
The amendments I propose to this section are to provide a more logical legislative framework, to provide initially for the consultative process and, in effect, the making of by-laws and to provide for the bringing into being then of the criminal offence. I circulated those amendments around this time last year in the hope that the Department would have a look at them in advance and then, if not to take on board exactly what I was proposing, to come back with a more logical and a more sensible framework than that contained in the section as originally published. In fairness to the Minister she has done that. The Minister's amendments would operate in a slightly different way from mine in the sense that the by-laws would not have to be brought into this House to be approved. There is now the consultative process in the context of the Minister's amendments in advance of the by-laws and that is a far more logical approach. In that context, and subject to what the Minister has to say about the amendments she is tabling to deal with this section, we on this side may be prepared to withdraw our amendments and to accept those tabled by the Minister.
Deputy Shatter's amendment proposes to empower the local authority to prepare draft by-laws on their own initiative or at the Minister's direction and establish related procedural arrangements. The by-laws could not be made until the Minister had given his approval and the by-laws were approved by resolution of each House of the Oireachtas. This procedure is totally necessary for the making of by-laws intended to be used by local authorities to control specified agricultural activities in their own functional areas. It is similar to having every licence issued by a local authority under the Water Pollution Act made subject to a positive resolution by both Houses of the Oireachtas. These amendments are unacceptable and if adopted would give rise to unnecessary formality, inflexibility and possible delays in the making of by-laws.
I am somewhat astonished at the amendments from both Deputy Shatter and the Minister. In many ways the Minister's amendments are all the more remarkable in that they almost negative the entire thrust of section 21 which is one of the best features of the Bill. The section enables a local authority, where it sees a pollution threat in or near a river or lake, to make by-laws to prohibit or restrict such activity or to ensure that certain types of works are carried out. The section would mean that a local authority could make by-laws prohibiting or limiting the use of certain pesticides, fertiliser, manures, animal slurry, silage effluent and so on. We have been told of the extent to which silage effluent, slurry and so on have caused pollution and of the dangers of them for rivers and lakes.
One would think from Deputy Shatter that the local authority in making by-laws acted like a secret society and that the first the unfortunate farmer would hear of them would be when they were published in Iris Oifigiúil. I do not know what circulation Iris Oifigiúil has but I do not imagine that too many farmers are regular readers of it. It is far more likely that a proposal by a local authority to make by-laws for the control of any activity in any area liable to pollution would be widely publicised in local newspapers, or on local radio and so on. It is very likely that members of the local authority who would represent the area would be aware of the by-laws and would make their constituents aware of them. It is also likely that many members of the local authority might well be the people who would be affected by the by-laws. I have never come across a case where a local authority made by-laws and the first the public became aware of them was when they read about them in Iris Oifigiúil. That is nonsense.
The provisions of section 21 enable the local authority to take action in order to protect watercourses from pollution. The by-laws proposed by the local authorities would have to have the approval of the Minister. After they are made there is provision for appeal against them. What both Deputy Shatter and the Minister are proposing is to turn that around and allow an appeal against the by-laws before the by-laws are made. Have we not already had one example of that type of thing under the Air Pollution Act in relation to the making of smoke control areas orders? In that case, effectively the legislation has been frustrated by people appealing to the Minister. What is intended here is precisely the same thing.
It is interesting that this was one of the sections of the Bill that drew the attention of the IFA. I am interested to note that the amendments proposed by Deputy Shatter are virtually word for word as drafted by the IFA.
I drafted them.
For the IFA as well?
Perhaps other people took them up.
Whoever drafted them, the thinking is coincidental. They are the same as the amendments which have been circulated by the IFA to their members.
I am curious about amendment No. 38 where Deputy Shatter is saying that not only will we have this process of appeal but that the by-laws will have to be brought before the Houses of the Oireachtas for their approval. Can one imagine a set of by-laws proposing to prohibit farmers in an area from using a certain kind of pesticide or fertiliser having any chance of getting through this House? It is not a runner. The net effect of the amendments being proposed by Deputy Shatter and the Minister is to frustrate the operation of section 21 of the Bill so that it will not be possible for local authorities to make by-laws to restrict certain types of agricultural activity.
There has been a lot of talk in this House in relation to legislation dealing with local government. We repeatedly hear of the desirability of giving local authorities more power. This legislation would give local authorities the power to make by-laws which would respond to the democratic wishes of the local authorities concerned. That is what the general thrust of the section provides for. Effectively the Minister's amendments and Deputy Shatter's amendments undermine that. One might as well not have in the section an enabling power for local authorities to make by-laws. One might as well give the power to the Minister in the first place.
Allowing what Deputy Shatter describes as a consultative process, is opening up the whole question of the making of by-laws to political influence. It is remarkable to listen to Deputy Shatter making a case for the Minister to have the final say in the making of by-laws. On an earlier section in this Bill to which Deputy Garland had an amendment which would allow for a certain process of appeal to the Minister, Deputy Shatter made the point that that would lead to the politicisation of the legislation, and I agreed with him. If that was the case in relation to particular kinds of appeal, surely it is also the case in relation to this issue. In effect what we have here is a core piece of the legislation which enables local authorities to make by-laws to protect the waters in their areas. There is now virtual competition between the Minister and Deputy Shatter to see which of them will most effectively articulate the position required by the IFA.