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Dáil Éireann debate -
Wednesday, 8 Nov 2000

Vol. 525 No. 3

Wildlife (Amendment) Bill, 1999: Report Stage.

I move amendment No. 1:

In page 17, lines 26 and 27, to delete "development by a local authority or".

This amendment relates to section 15 of the Bill, which is an interpretation section and we are dealing here with the definition of "works". The Bill as drafted reads:

"works" includes any activity which destroys or which significantly alters, damages or interferes with the integrity of–

(f2>a) a site, or

(f2>b) any of its species, communities or habitats,

either intentionally or unintentionally, or any activity which has a significant impact on the site or on any of its species, communities or habitats or on its landforms or geological or geomorphological features, or on its diversity or natural attributes, other than development by a local authority . . .

We dealt with this amendment at some length on Committee Stage and the Minister pointed out that the local authority was also the planning authority, so that in essence this situation was covered. I put it to the Minister that whereas part of a local authority's function is as a planning authority, there are other functions carried out by local authorities which could impinge on the integrity on NHAs and could cause problems or damage. For example, work carried out adjacent to an NHA could interfere, for instance, with the watercourses linked to the NHA.

The definition here also alludes to exempted development under the Planning and Development Act, which is also excluded from the definition of works. I feel the Minister had not quite looked at the whole context before Committee Stage. Whereas one function of the local authority relates to the development plan, which must take cognisance of NHAs and NHA orders, and the Minister introduced an amendment on Committee Stage which extended this to designated or notified NHAs, there is still a danger that works could be carried out by a local authority, perhaps in an emergency or in a situation where speed was required. The Minister is surrendering an element of control in this section and that is not in the best interests of protecting NHAs.

I support the amendment. The Minister will be aware of many local authorities throughout the country which, due to various pressures that have been placed on them, have taken action without, perhaps, the full support of certain sections of their own organisations. If the Minister is intent on giving a special exemption to local authorities, she must make it clear that she is giving that exemption to certain sections of local authorities which may not have the expertise to deal with or interest in the conservation issues for which she is responsible.

I ask the Minister to reflect carefully on this matter and to take on board the spirit of Deputy O'Shea's amendment. Local authority officials are secretly frustrated by the actions of some of their colleagues, particularly those who work in roads departments, for example, who may not have been trained to deal with or be interested enough in the conservation issues that may be at stake.

Before discussing the amendment in detail it is necessary to outline the general framework provided for natural heritage areas in the Bill. I wish to underline that strong and permanent protection is being provided for NHAs. The Bill provides for the designation and conservation of natural heritage areas.

NHAs are sites that support elements of our natural heritage which are unique or of outstanding importance at national level. Such areas can never be adequately replaced and their conservation is required in the interests of the common good. A legal framework for their designation and conservation is long overdue and this Bill remedies that deficiency.

I take considerable satisfaction from the fact that the provisions I have put in place in respect of NHAs in the Wildlife (Amendment) Bill will ensure their permanent protection. Not only does the Bill provide for the protection of NHAs, it does so in a fair and open manner which rules out any need for anxiety or fear among farmers or other landowners regarding the ownership of their land.

I have indicated previously – and it is worth repeating – that I am revising fundamentally the protective regime that will apply to NHAs. Prior to my assuming office, NHAs in general could only be guaranteed what amounted to essentially temporary protection. If, after a period of six months, a person wished to proceed with damaging works in an NHA, there was no mechanism to prevent them doing so, with the exception of the possibility of a compulsory purchase.

Apart from the social, political and practical undesirability and the impossibility of guaranteeing protections for NHAs by compulsory purchase, it would be a wholly inappropriate approach to conserving biodiversity in the modern era. The idea that ecologically important sites should be protected through compulsory State purchase, thus essentially ring-fencing them and ruling out all other uses or activities in such areas, would be ill-advised. It would be a recipe to pit conservation and other interests in direct conflict with each other and to bring about and perpetuate a divisive and damaging relationship.

I have introduced a system which guarantees that the ecological interests of NHAs can be protected permanently. Works in NHAs will require the consent of the Minister and any activities which will cause significant damage can be prohibited permanently. By ensuring that the ecological interests of NHAs can be safeguarded through this mechanism, I have also been able to dispense with the need to compulsorily purchase land to conserve wildlife.

To balance the imposition of permanent restrictions, it was fair and proper to provide that compensation would be paid to landowners in cases where they suffered real losses as a result of NHA designation. Apart from many constitutional considerations, it is right to compensate farmers or to provide them with financial incentives for maintaining or delivering biodiversity services.

While some archaeological practices can damage wildlife, it must be underlined that many of the areas we now view as being of particular ecological importance were created by traditional agriculture. Appropriate agricultural practices must continue in order to maintain the biodivers ity importance of these areas. Consequently, it is not only fair but essential to provide supports for sustainable agriculture in such areas as we are doing via REPS in NHAs.

I have always recognised that sustainable agriculture delivers wildlife benefits. I am glad the EU now concurs with my thinking, as reflected in its embracing of the concept of multifunctionality of agriculture. This is the terminology coined to recognise and support the delivery by agriculture of biodiversity and environmental benefits. In short, providing permanent protection for a network of nationally important wildlife sites, NHAs, in a fair and equitable manner constitutes a change of fundamental importance in the approach adopted in this country to the conservation of natural heritage.

I am aware that on Committee Stage concern was expressed in relation to the fact that local authority development or development that is not exempted for the purposes of the Planning and Development Act, 2000, within an NHA might not be subject to a sufficient degree of regulation under section 15 of the Bill as drafted. I take this opportunity to allay any such fears on the part of Deputies and I wish to clarify the protection afforded to NHAs under legislation in the above instances.

The principal purpose of section 15 of the Bill is to define works for the purposes of Chapter ll of the Act and not to regulate the activities of local authorities of local authorities. That matter is dealt with comprehensively under section 24 of the Bill in conjunction with section 12 of the principal Act, as well as in relevant planning legislation and regulations. I should also point out that the planning system is a separate regulatory system from that outlined in wildlife legislation. Therefore, it is important that excessive duplication of legislation across streams should be avoided.

In the case of NHAs, I am pleased to confirm that their protection is specifically provided for in planning legislation and this protection serves to bolster yet complement the provisions of the Bill. I appreciate how the apparent exclusion of local authority development and exempted development might, at first glance, be interpreted as a carte blanche for local authorities to carry out works as they wish within NHAs. When this question is examined in further detail, however, it is clear that this is not the case.

I wish to explain the legislative provisions and mechanisms that are in place to ensure that local authority development and development which is not exempted development within NHAs is controlled. The Planning and Development Act, 2000, places NHAs on a statutory footing for the first time. Thus, literally, the Planning Act could not specifically refer to NHAs. Nonetheless, section 10(2)(c) of the Planning Act, 2000, provides that any county development plan prepared by a local authority shall include mandatory objectives for “the conservation and protection of the environment including, in particular, the archaeological and natural heritage and the con servation and protection of European sites and any other sites which may be prescribed”.

It has been agreed between my Department and the Department of the Environment and Local Government that the protection of NHAs should be a mandatory objective of local authorities in their development plans. NHAs will fall into the category of sites which may be prescribed. Section 178 of the Planning Act, 2000, states that no development may be undertaken that would materially contravene a development plan. Thus, section 178, when taken in tandem with section 10(2)(c) of the same Act, entails specific and mandatory protection for NHAs.

In addition, under section 10 of the Planning and Development Regulations, 1994, which remain in force, there is a specific requirement for local authorities to send a notice to my Department in respect of proposed developments affecting sites of geological, scientific or nature conservation interest. The Minister for the Environment and Local Government has assured me that any similar regulations to be introduced as a consequence of the Planning Act, 2000, will provide specifically for consultation with my Department in respect of developments within NHAs. To embrace even further the protection of NHAs, section 24 will place an obligation on local authorities to consult me in respect of anything which may interfere with either a proposed or designated NHA, nature reserve or refuge.

In the course of drafting the Bill and on heritage matters generally, there has been extensive consultation between my officials and their counterparts in the Department of the Environment and Local Government. It is very clear that the latter Department is fully aware of the responsibilities of local authorities in relation to NHAs and their protection and conservation, in consultation with my Department, will be a key factor in the future development of each county. I am sure Deputies will agree that, overall, this represents a comprehensive package of protection measures for NHAs.

I am anxious to avoid unnecessary and unwieldly duplication of protection measures between the separate planning and wildlife protection legislative streams. Section 24, when taken with existing planning safeguards, results in a well balanced complementary package which will ensure NHAs are well protected. Therefore, I cannot accept the amendment.

The Minister outlined the protection measures available for NHAs and the obligation on local authorities to consult her. That being the case, why is it necessary to exempt works undertaken by local authorities? What works does the Minister have in mind? While planning permission is required for certain works under the planning Acts, it is not required for others. If the Minister is happy that there are sufficient procedures and protection measures in place, why not leave things as they are? I had a discussion with her recently about the protection afforded in a particular area in Killarney. While there probably was notification, there was a question about the works undertaken by the local authority. Is there a need to exempt works undertaken by local authorities?

I am still not satisfied with the Minister's explanation. Under section 15 "works" include any activity which destroys or significantly alters, damages or interferes with the integrity of a site or any of its species, communities or habitats. On Committee Stage the Minister stated that under section 24 local authorities will be obliged to consult her regarding any works which could affect a designated NHA and to take steps to avoid damage to NHAs. It is a judgment call. Who will decide whether the Minister should be consulted? Currently, there is much flooding in urban and rural areas, which local authorities are taking urgent action to relieve. There may be a number of options. While I accept local authorities must be able to act, the fact that works undertaken by them will be exempt under the Bill means that there may not be sufficient control in the selection of the proper options which would produce similar results to ensure NHAs are protected and that we meet our conservation objectives.

On section 15, does the Minister have at her disposal a matrix or database of notifiable works? Has she made her views on this matter known to the local authorities that they should provide for the protection of natural heritage areas and habitats in their development plans? It is my experience that in many cases they are rowing back on their references to conservation. The Minister has a responsibility to reverse this trend. For example, hedgerows have been omitted from the Fingal County Council development plan. Local authorities have their hands full in flood relief and progressing roads projects under the national development plan with the result that conservation issues are not a priority for them. They are not living up to the dreams and aspirations which the Minister has for them and to which she referred in glowing terms. By exempting works undertaken by them, we are playing into their hands. I urge the Minister to think again to ensure they do the work that is her responsibility.

The Minister is aware of my concerns in this area. My primary concern is enforcement. Insufficient personnel are available to oversee the implementation of this type of legislation and the point at issue in the amendment in particular. It was reported in the newspapers last week that the Builders' Association of Ireland had requested that retired planners be re-employed by the local authorities. Planners are so overrun by the number of applications for planning permission that they cannot keep up with the volume of work. How can they have time to look into matters such as this, unless there are suf ficient staff? There are insufficient staff available, whether it be engineers, geologists, archaeologists or wildlife rangers, to ensure the work involved is done properly. The Minister mentioned that 90 wildlife rangers have been employed in the last two years, but there is no evidence of this on the ground.

The Minister should establish an independent body to ensure our heritage is properly preserved. While Dúchas is doing a worthwhile job, as it is under the aegis of the Department it can hardly be objective. We are all terrified and extraordinarily worried when we read continually in the newspapers that we are in breach of laws introduced by the European Union, but not being implemented here. This publicity about the destruction of our heritage has grown in the last three or four years. I do not know the reason, but I read in a newspaper over the weekend that the Minister has not attended a meeting of the Cultural Council for at least two years. Is this due to her pique at the criticism on the part of the European Union of our inability to police the archaeological sites in this country and the type of activity to which Deputy O'Shea referred or is it simply due to a lack of interest?

I want to state clearly that there is already planning legislation on the Statute Book and it would not be advisable for my Department to duplicate that. We are working in tandem with that legislation. Local authorities will work to the Department of the Environment and Local Government which, in turn, will have direct access to my Department. Indeed, local authorities can obtain expert information from my Department on this matter. It is not a question of letting local authorities off the hook. I provided a comprehensive reply in which I outlined how these matters have been brought together in a very substantial package which will protect the NHAs on a permanent basis.

Deputy O'Shea referred to arterial drainage, an issue which can be discussed in regard to later amendments. Deputy Sargent referred to my aspirations for the operation of local authorities. We are talking about the Planning Act, 2000, which is far from aspirational. It is not for me, in any capacity, to deal with or monitor the workings of local authorities.

Deputy Deasy referred to the Building Association of Ireland. Discussions are ongoing between my Department and the association on drawing up codes of practice. We have also held very extensive discussions with the NRA which resulted in the production of a very useful code of practice which other bodies and associations will be able to use. My Department has recently appointed more archaeologists and the number of wildlife rangers has also multiplied.

The Minister's time has expired.

I would like to take the opportunity to reply to a rather disingenuous political point made by Deputy Deasy to the effect that I do not have an interest in what is happening in Europe. In regard to the habitats directive, I have explained on a number of occasions that the delay with the sites occurred because we wanted to ensure compliance and ensure landowners would have an opportunity to appeal decisions. I established the appeal and liaison committees to that end and they have worked successfully. The sites will be submitted by the end of this month, as promised.

The Minister has exceeded the two minutes to which she is entitled.

With the Ceann Comhairle's permission—

Unfortunately, the Chair cannot amend Standing Orders on an ad hoc basis. Two minutes are allowed for a second contribution.

—the Deputy made an accusation to which I would like to respond.

I was referring to a newspaper report. Will the Minister confirm its content?

The Deputy is entitled to two minutes if he wishes to make a further contribution.

I have not heard any denial from the Minister.

The Minister has exceeded the two minutes to which she is entitled under Standing Orders on this Stage and, therefore, is not entitled to make any further contribution. The Deputy may have an opportunity to raise the point in regard to later amendments.

I assure the Deputy that I have taken every opportunity to speak to my Government colleagues and the Commission on the issues which pertain to my Department. I have visited Brussels on a number of occasions. I was unable to attend the last Council meeting because I was in Belfast dealing with North-South issues.

The Minister must conclude.

I have not received a satisfactory answer to the basic point I raise in this amendment. Why should local authority development be excluded from the definition of "works" for the purposes of NHAs? The definition of "works" is a negative one which refers to activities which destroy, alter, damage or interfere with the integrity of a site or its communities or habitats.

The Minister referred to section 24 and spoke about consultation between her and local auth orities on works which could affect a designated NHA in order that steps could be taken to avoid damage. That is expanded on by the Minister's amendment to notified NHAs.

Deputy Deasy raised an important point in regard to staffing levels at Dúchas and local authorities. The consultation process in section 24 involves a judgment call. Who, within a local authority, will decide that certain works could interfere with or damage an NHA? What mechanisms are in place to make such decisions? The use of the word "could" means the definition is not a very tight one. Who is responsible at local authority level for deciding what should be communicated to the Minister?

There is a great deal of day to day engineering work at local authority level and the possibility exists that certain work, particularly that involving digging, could result in the serious disruption of water courses, thereby causing flooding and damage to habitats. I do not see any justification whatsoever for local authorities to be exempted from the same rigours as other bodies in regard to works carried out on NHAs. The definition is far too loose.

The Minister referred to the planning legislation but I remain unconvinced that this provision is watertight in terms of local authority activities. The planning function of local authorities is separate from their other functions. Adjudication on planning Acts and the development plan is an independent function of the planning authority. It is not simply a matter of viewing a local authority as an entity. Local authorities have autonomy in regard to planning but I do not see why their other functions should be exempted from this definition of "works".

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.

Amendment Nos. 2 and 3 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 17, line 36, after "area." to insert "Any person may notify the Minister in writing of his or her wish to have a particular site or sites designated as a natural heritage area. The Minister, having received such a letter, shall cause an assessment to be made of the site having regard to subsection (6)(a). Where the Minister is of the opinion, having regard to subsection (6)(a), that the land forms, or is part of a natural heritage area, the Minister shall inform the proposer of the site of his or her intention to make an order designating the land as a natural heritage area.”.

This amendment relates to an issue discussed on Committee Stage, namely the possibility of a member of the public or a conservation body- being entitled to notify or facilitated in notifying the Minister in writing of their wish to have a particular site or sites designated as NHAs. This is a serious issue and I remain to be convinced that the Minister welcomes the input from NGOs in this matter, although I know she has had consultations in the preparation of the Bill and that there is communication with them. However, the current provision is a top down procedure in terms of designation, involving the Department in effect taking a liking to a site and then the local community having to be informed, getting used to the idea and hopefully accepting it. For genuine and effective conservation it is important that as much opportunity as possible is given to local communities and people interested in conservation to bring forward ideas.

I remind the Deputy that amendment No. 3 is related to amendment No. 2.

Apart from providing some framework within which a person can bring to the Minister a clear request to have an area designated as an NHA, with an accompanying map delineating the site and data detailing conservation status, etc., there is an obligation on local and national Government to encourage the principles under which Agenda 21 was agreed at the Earth Summit, which include encouraging local participation and initiative in areas of conservation and sustainability. In addition, the principles of subsidiarity suggest that local involvement and initiative should be encouraged.

On Committee Stage the Minister said any person can write to her at any time, and that she would welcome that, but that is not explicit in the Bill. It is important to redress the balance as it is explicitly stated that the Minister knows best, is in charge and therefore will ultimately decide whether an area is an NHA. I agree with this, but it should not exclude the involvement of the community, local interests and conservation bodies from making suggestions and requests in terms of areas which should be NHAs.

I believe everybody on this side of the House would reiterate what Deputy Deasy said. Obviously there is a need to make effective use of resources as they are apparently scarce in the Minister's Department – other Departments talk about having resources to spare and the revenue from the Celtic tiger giving them many options. Ultimately we need more staff working in conservation and if people, be they NGOs, local communities or individuals with an interest in conservation, are prepared to be involved they should be encouraged and that should be explicit in the Bill.

On Committee Stage we discussed this issue and the Minister was concerned that there could be too many applications which would clog up the system. She was also concerned about vexatious applications made by people who had no real interest in conservation. I tried to frame an amendment whereby third parties or those with an interest in establishing an NHA would have a procedure under which they could make an application to the Minister and Dúchas to include an area as an NHA. I have tried to frame it so that people with an interest and knowledge in conservation would have to produce a scientific plan, that it would not be a case of them writing a standard letter requesting that an area be included. Their application would have to be substantial and address the issue in a serious manner. In this way my amendment tries to address some of the Minister's concerns about vexatious or anti-development applications.

On Committee Stage the Minister said third parties were welcome to write to her and that she would receive their applications. That is fine now, but there will be a change of ministry and if such a procedure is not established in legislation it will be lost forever. I accept the Minister's good intentions, but it is important that the Bill includes a provision whereby third parties could have a procedure that would allow them propose an area to be designated as an NHA. I am not saying the third parties should make the decision – Dúchas will process the applications and the Minister will have the final decision on whether a site should be an NHA.

There is much expertise in the country and we have already discussed staffing levels and how difficult it is for all Departments to recruit staff, particularly at local authority level and in areas for which the Minister is responsible. There are people working in the area who have an interest in conservation and to use their information would be practical and worthwhile. Ultimately the Minister would have to make the final decision.

This issue was debated on Committee Stage. At that time I stated I had representations on this issue but that having considered it at some length I decided it was best not to pursue it. However, the point made by Deputy Sargent about the engagement or involvement of the population at large in conservation issues is a laudable objective and one we should all seek to develop.

My greatest concern at the end of the day is the lack of staff. Letters will be sent to the Minister on designating sites as NHAs, some of which could be mischievous and self-seeking and there must be a way of filtering out such letters. Deputy Clune's amendment uses the words "why the site is of special scientific interest". I may have a house on a piece of land, want to prevent development adjacent to it and decide to nominate my neighbour's land as an NHA, which would be self-seeking. However, having said that, I support the genuine general involvement of people in conservation issues. People should become conscious of our wildlife, flora and fauna.

The more knowledge in the community the more conservation will be effected, if an effective filtering system can be put in place, whereby the unworthy or useless letters can be separated from applications made by NGOs of standing and from people with specialised knowledge in the areas to which the Wildlife (Amendment) Bill applies and also from those who genuinely put a reasonable scientific base to their proposal. An input from those people should be welcomed. This does not solve the basic dilemma. Given the scarce resources available to the Minister I am concerned that a significant amount of the time of her staff could be given over to examining applications and carrying out assessments on applications that had nothing to offer. Having listened to my colleagues and having read their amendments I believe a balance can be struck where some screening process can be put in place. It could probably be based on the terminology in Deputy Clune's amendment where the special scientific interest would have to be stated. In the absence of some such basis to letters, those letters would not go beyond being read and put to one side. On the other hand if I recall correctly the Minister said on Committee Stage that if correspondence arrived on her desk that had value and merit it would not be ignored. I accept the Minister's bone fides and her good intentions but we are legislating to put together a process whereby we can welcome engagement from people of goodwill and those who are coming forward with worthwhile proposals. It is important that people relate to Dúchas and develop an understanding of legislation and an understanding of the importance of sites, habitats and their communities etc. I urge the Minister to look seriously at the two amendments. In her response perhaps she will give an indication as to how the aspirations that give rise to these amendments can be adequately met, not only in the context of assessing NHAs but in welcoming people to engage in the whole process of conservation, thereby improving in a way that is difficult to measure, the protection of NHAs because of a wider base and informed public awareness.

I have heard many Members speak about staff and the lack of staff to police the various aspects of this legislation. When speaking about communications between NGOs and landowners to the Minister's Department is it realistic to expect ordinary folk, landowners and members of the public to accept a reply from Dúchas in Latin? I know of a person who asked the Department, through Dúchas, for scientific evidence of the basis on which a decision had been taken in the past by the Department and received an eight page reply of Latin terms naming species. The person was frustrated and said there was no point in dealing any further with the matter and felt it was a fob off by Dúchas. Will the Minister ensure, where requests are made to her Department for information that the reply will never again be through copious leaves and leaves of names of species in Latin. If one wants to kill communication that is one way of doing it. My first reaction was that this person was being told to get lost. That is not a helpful way for any statutory body to deal with a genuine concern in respect of entitlements or information. It is unfair given that the Minister will accept scientific evidence only in certain appeals. For example, where ordinary folk are trying to appeal they are compelled to bring scientific evidence only. That is beyond the reach of an ordinary landowner whose lands are designated.

In the past the whole process in regard to the notification procedure has been found to be totally unsatisfactory. There were people, for whatever reason, who were not aware their lands were designated until some other coincidental event had arisen. Has the Minister got the staff and the wherewithal to notify landowners other than through notification on the local media? There is an onus on her to tell every landowner in a focused way that his or her land has been designated. That has not been the case in the past . We have precedents to back my statement that people have not been told. When it was pointed out to it, Dúchas said there was nothing it could do. Dúchas has fought strenuously in every way possible to adhere to its decision and that was it. In regard to the appeal mechanism, it was taken for granted that land owners had been notified when that was not the case. I agree with the amendments on the basis that that is an unsatisfactory way to deal with the matter. On the one hand we can have notification by NGOs who have a genuine interest in the inclusion of certain areas for designation and at the same time they are not recognised in a legislative way. It is not adequate in this day and age to deal with them on an ad hoc basis.

A number of points have been made. With regard to the whole question of discussion and being open to consultation and meeting with groups, before and since the publication of the Bill there has been unprecedented consultation with NGOs, other groups and individuals by me and my officials. That is how I have always tried to approach my work not only in this area of my responsibilities but in the running of the Department. I am glad that under my stewardship over recent years we have increased staffing in certain areas, particularly among archaeologists and rangers. I would like to make more appointments because there is a tremendous amount of work to be undertaken. I welcome, as does every Member, genuine involvement of local groups because that is important. I encourage people to contact the Department regarding any matter under its remit, not just the issues under discussion today.

Deputy Sargent suggested a Minister could take a liking to designation of certain sites. As the Deputy will be aware, designation will be made on scientific grounds. I understand what the Deputies had in mind when drafting these amendments, but we must be practical and recognise that in some instances vexatious elements could come to light if third party input was put on a statutory footing. This is not the way forward. I encourage groups and individuals to contact my Department to put forward their suggestions.

It is not a question, as Deputy Clune said, of informing the Department by way of standard letter. The sites will be inspected and decisions made in an appropriate and scientific manner. We would encourage at all levels the involvement of local expertise and interests in that process. For the reasons I stated earlier and on Committee Stage regarding the general approach to this process, I do not believe putting third party input in the designation process on a statutory footing is appropriate.

I thank Members who said they realise I want consultation and to encourage people to contact the Department, but, as has been correctly pointed out, we must look to other Administrations to ensure the legislation we enact is appropriate. We are referring to the responsibility of the Minister for heritage and I hope the Minister of the day from whatever Administration with responsibility in this area will be aware of his or her obligations and responsibilities in this regard and carry out his or her work in an efficient manner. While I acknowledge the goodwill behind this proposal, I cannot accept the amendment.

It is important to refer to the irony of the Minister's defence of her position. I take her point that there was consultation during the preparation of the Bill but the amendments were tabled as a direct result of requests from NGOs involved in conservation and, therefore, it is not a case of us trying to represent anybody with a vexatious agenda. We followed up on requests from people involved in conservation whose only interest was in the scientific grounds provision, which the Minister is correct in saying will be the criterion on which a request will be judged.

However, I would resist any pressure to generalise the grounds on which an NHA is considered because it would be impossible to be objective about it and it leaves the way open for local feuding or preferences on the basis of criteria other than scientific grounds. I am clear, as are the NGOs, that requests should be judged on scientific grounds. I hope that will rule out vexatious approaches which have been mooted as a possibility if an amendment such as mine is accepted.

The Minister is standing firm on this issue. If she intends to put her foot down and say "thus far and no further" I urge her to make it clear to NGOs that the door is not closed on consultation. Recognising there is a shortage of resources does the Minister appreciate the expertise, offers and requests from NGOs so that there will be a growing dialogue between NGOs and the Department in the interest of conservation.

I am disappointed the Minister will not advance the issue. I recognised her concerns on Committee Stage and I tried to go some way towards meeting them through my amendment to try to eliminate the vexatious applications that would occur. There has been much debate about lack of staff and clogging the system because there is not enough staff to process these requests. Staffing should not influence the legislation. People with expertise, concerns and interest who have a valuable and worthwhile contribution to make are available and procedures should be provided in the legislation for them to submit applications.

However, I am glad the Minister is continuing to consult with and keeping the door open for third parties and NGOs which have a contribution to make. I am disappointed that we cannot reach a compromise or meet halfway on this issue. NGOs also have a great deal to offer in the environment field in terms of expertise. Nobody has a monopoly on information. The NGOs and others working in the area should be aware of the Minister's openness and willingness to participate in consultation with them.

The Minister has indicated that she will not accept the amendments. However, before the Bill reaches the Seanad perhaps she will again examine the fundamental issue involved. A limited number of sites could be credibly proposed as NHAs. If there was a provision for writing to the Minister and carrying out assessments the number of such proposals being made to the Minister would diminish over time. The fundamental issue is inviting consultation and ensuring NGOs and people with expertise on the one hand are very much part of the process. That is not to undervalue in any way the other important process of cultivating involvement with the Department and with Dúchas, as well as raising public awareness of conservation and advancing that agenda. If I am reading the Minister's view correctly, she will not concede anything on these amendments. Will she re-examine this question, however, in the context of the Seanad debate, to see if there is some way in which the legitimate aspirations that have been expressed on this side of the House could be provided for?

In her reply, will the Minister deal with the question of notification? The Minister should also consider one other item related to the amendments. If we look at a map of Ireland containing the areas of designation, including NHAs, SACs and SPAs, it is clear that we are approaching saturation point. Western counties may even have gone beyond that point, particularly County Galway. As the Minister knows, vast areas of Connemara, south Galway, east Galway and the Shannon basin are all designated in some shape or form. I am asking the Minister if we have reached saturation point with regard to designations, or have we passed it? There is such a concentration of designated areas along the west ern seaboard because of what has occurred in other parts of the country, including Meath, Wexford and other more highly developed regions. Everything has happened there so quickly that the situation has gone beyond redemption.

The Minister and her Department need to recognise that we are at saturation point, if not past it. There is an urgent need to indicate to landowners what we will do in these heavily saturated counties if we are to continue on this basis because the situation will have serious repercussions later. I am not just knocking designation for the sake of doing so. I realise that its scientific basis is important, but such designations have serious social and economic implications.

Deputy Burke asked whether we have gone too far, and I believe we have. It is not good enough for people in Brussels and Dublin to tell people in the west what they should do. I tabled a parliamentary question to obtain a map of the designated areas. While I am open to correction on this point, I understand that Galway was No. 1, Mayo No. 2, and Kerry No. 3. I can see why people in the west are becoming angry, even if people in the rest of the country say we are always complaining. In recent days there was flooding in parts of Dublin and I offer my sympathy to those who suffered, but we have had such flooding in the west for the past ten years. We reached crisis point last Christmas when roads were impassable there, yet there was not a word about it.

The NHAs and other designations have gone too far. There is consultation with officials but they are not listening. I predict that NHAs and SACs will provoke riots in the west and elsewhere over the next few years when people see further restrictions on what they can or cannot do with their lands. The position is reverting to the days of the landlords. We spent 50 years trying to get rid of them, yet now our own people and those in Europe are placing more restrictions on landowners in the west. In some western areas one cannot rear anything, yet people there cannot obtain planning permission for houses or do anything with their land any more.

They are talking about enlarging the European Union, but if there was a referendum today I would support the Minister's views about the European Union because we are getting too much dictatorship from Brussels. This House does not count any more because all we are doing is rubber stamping regulations from Europe. It is a bit like what is happening with central Government which is dictating to people in rural areas what they should do with their property. We spent 50 years trying to get rid of the landlords, yet now we have the new European and Dublin landlords telling people what they can or cannot do with their land. I am sick and tired of it and so are many other people. They constitute a group that is becoming organised because they have had enough of this. They might talk to officials from the Office of Public Works and Dúchas but those officials are not listening. For the sake of the Minister and the Department the officials go into meetings, but with blankets over their heads. They claim to have consultations but they are not listening and will not change the rules. I am sick and tired of hearing from poor men and women who apply for planning permission and are told by the county council: "We have to send it off to Dúchas to see if they will object, and they may object because of this or that".

People in the west are organising themselves and this will be a major political issue over the next few years. I am tired of the dictat coming from Europe telling us what we should do. I would prefer to see the Government telling us what to do and helping us to do it. Everything is happening on the east coast at the moment, but there is nothing on the west coast. There are so many restrictions on the bit of land on the west coast that young people cannot live, farm, build or survive there. It is a step too far.

Deputies raised the question of third party proposals for designating certain sites, some of which may be vexatious. Full checks have to be done on any sites that are put forward for designation, however. While this could pose some practical difficulties, it proves that any issues put to my Department will be examined seriously and properly checked out before any decisions are made. I accept what Deputy Sargent said, that his amendment was not only tabled on foot of his views but also because NGOs feel strongly about the issue. I accept that because the NGOs have said so directly to me. I am pleased the Deputy recognises that I will not close the door on this matter. Like every other Member of the House, I would like to be able to utilise local expertise in addressing heritage matters on a community basis. I would not go along with the view that it should be done from the top down.

Deputies Ulick Burke and Ring referred to designations, and SACs in particular. I am sure both Deputies will be aware that the Habitats Directive was decided upon by the previous Administration before I took office. It was only when I assumed my current responsibilities that I tried to examine the situation that had been imposed on us, to try to obtain a fairer system for landowners. That is why we have the appeals system and liaison committees which have been working well. Following a number of discussions, I have had feedback from NGOs as to how they and farming groups have been working extremely well on these committees. A number of people have contacted my Department in the hope that their land would be included in SACs. Deputies are correct in saying that a number of sites throughout the country have been designated as SACs. That number would be termed as average in the European context. It is no greater than the average number sent by other European states. There is the question of compensation because, under our Constitution, one could not impose such restrictions without having compensation. That is why in a number of instances some people hope they will be included in the SAC system, whereas we are discussing the NHAs today, which is a different approach.

I recognise the Minister is going as far as she can without allowing the amendment. However, like Deputy O'Shea, I ask her to think long and hard about it, with the Seanad in mind, in light of the views she has heard today. There is a way of sending out a clear message which is necessary for all stakeholders in this procedure. I take to heart what Deputy Ring said and identify with his feelings of disempowerment, as one would if one were a member of the Green Party faced with the larger parties, such as Deputy Ring's, which voted for the various progressions down the European road to the point at which we are now. It is important we take into account the changes which have taken place which have left us with irreversible decisions from Europe. Many are good but I agree that not all are.

The east coast has many designated areas. I visited Clare, Galway and Roscommon to meet families affected by the flooding. I am sorry I did not get to County Mayo. This is a countrywide issue and I take the point that the west also has a case to answer. The Minister is in ways like a county manager. In a local authority, the county manager and the officials meet occasionally with deputations of people concerned about issues within the responsibility of the local authority or the Minister in this case. I hope a more formal facility is put in place. I do not want to be a drain on staff or resources but it could clear up a considerable amount of the logjams, angst, frustration and feelings of victimisation which seem to grow and fester in the absence of meaningful consultation and some type of structure on notification and consultation, as was mentioned by Deputy Ulick Burke.

Perhaps the Minister would examine not just welcoming letters and all types of requests, but also a system whereby, if people want to meet her, a set structure is in place whereby a day is set aside every six months in which there are a number of slots in which to meet deputations and so on. It would be a case of joining the queue but a structure would be in place. It needs to be put on some type of formal basis so that there are not vexatious requests but meaningful consultation. That is the challenge we must get right. It seems we will not do so today, but I hope we will by the time the Bill gets to the Seanad.

Acting Chairman

Is Deputy Sargent willing to withdraw the amendment?

Amendment put and declared lost.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 18, line 20, to delete "to" and substitute "of".

This section sets down procedures for the publication of notification of NHA designation proposals as well as the notification of those with an interest in the land. This amendment is purely technical in nature and is being made on the advice of the parliamentary counsel. It involves substituting the word "of" for "to".

Amendment agreed to.

I move amendment No. 5:

In page 19, line 7, after "impact." to insert "The scientific advice referred to in paragraph (a) shall take account of the size of the site, its location, the type of natural feature or features contained in it, and linkages between them, the (degree of negative human impact) threats and present use impacts and the possibilities for site restoration.”.

Amendment No. 5 seeks to include, along with scientific advice, the size of the site, its location, the type of natural feature or features contained in it, the degree of negative human impact and the possibilities of site restoration. We discussed this on Committee Stage and it is important. It may already be taken into account. However, like the previous amendment, it is not explicit and it ought to be, especially for land owners.

Experience has taught us that there is a view that the current state of a site is what is judged to have scientific merit or whatever. That leads people into the temptation to degrade a site before they are caught or before it becomes effectively protected. I say "effectively protected" because sites throughout the country are protected in name but, in reality, have little or no protection and the damage caused to them bears out that reality. Will the Minister take into account the degree to which a site can be restored as a factor to be considered when the scientific advice is being weighed up?

That is all I have to say on the matter. We should examine the possibilities of site restoration as an aspect of the scientific advice criteria so that we would not encourage, by default or whatever, the destruction or damaging of sites in the hope that they may not be designated because they are sufficiently damaged to be deemed beyond repair. We should weigh up that aspect of site designation.

This proposal from Deputy Sargent requires that the NHA network should comprehend not only existing sites which are of special ecological importance but should be extended to include areas which potentially could be restored in future to be of ecological importance. This scenario would be a fundamental change and would go well beyond the concept envisaged all along for NHAs. There would be serious questions about the usefulness and advis ability of such an approach, not to mention the major financial cost.

The issue of exactly what framework should be elaborated to identify such areas and how to determine their possible scientific importance at the end of the day would not be easily resolved, if at all. The issue of where to draw the line in incorporating such sites into the NHA network would be a major consideration as the concept could be completely open-ended and lead to all sorts of demands. Furthermore, a core principle which always underlies the approach to NHAs and one to which there has been a long established commitment publicly is that land will only be proposed and designated for its scientific value.

There would also be major practical problems. Issues would arise over whether it would even be possible to restore a specific site, whether the site should be restored, at what cost, what its final ecological value might be, etc. Difficulties would also be likely in regard to who would restore the land and who would pay for it. Such an amendment would also be fraught with legal difficulties. The Attorney General has already advised me that we cannot place certain burdens on land owners of proposed NHAs. Accordingly, it would probably be possible to place a burden on a land owner of a site that is not even suitable in its current condition for proposal as an NHA. As I stated on Committee Stage, we will be doing a great job if we protect what we have without diverting energies and money to restoring sites to their status of earlier years, thus defusing the overall effort and leading to a less satisfactory overall outcome.

The motivation the Minister is reading into the amendment is slightly mischievous because it goes beyond the intended scope of the amendment. If it is mistakenly going beyond that scope, it should be curtailed so that it will not be interpreted as meaning, as I said on Committee Stage, a request for the Halls of Tara in royal Meath to be restored to their former glory. That would, obviously, be unrealistic and quite fanciful. Perhaps, someday someone will present a proposal in that regard but I have not seen one so far.

The amendment is aimed at a current reality, which is the destruction of sites that have been formally or informally notified to landowners as being designated. In the absence of adequate enforcement and protection, damage has been done to some sites in the belief that designation may be removed if the site is damaged and it will no longer be of the same value. I want to avoid that happening, as I know the Minister does. However, my attempts to avoid that happening are being read as an amendment intended to carry out something which is not actually in my mind. I want to seek some remedy for what is happening in reality, which is the destruction of those sites. That is the sole motivation for the amendment. If the Minister can assure me that sites will not be destroyed in future, I will be delighted.

As the Deputy knows, I can seek the restoration of designated sites when the damage took place after designation. I can also seek restoration of a site damaged when it was a notified site, only after it has been subsequently designated. While I understand the Deputy's concern, he has to accept that his amendment not only would pose practical problems but, as I outlined earlier, would be fraught with legal difficulties. The Attorney General has advised me all through this Bill that we cannot place certain burdens on landowners of proposed NHAs that would not be seen to be reasonable.

The proposal in the amendment could be seen as undermining what we are trying to do and as being a fundamental change in the concept envisaged all along of what we are doing here for the NHAs. The Deputy is aware we are looking for permanent protection for the NHAs. We have a number of ways of ensuring that is done. There is a legal and moral obligation to provide compensation for landowners. We want to encourage people to realise the importance of the NHAs. However, while I understand the motive behind the amendment is very genuine, it goes far beyond what we have envisaged in the legislation for natural heritage areas.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 19, line 30, after "measures" to insert "including management plans".

This section deals with natural heritage area orders. The section states that "such provisions as the Minister thinks fit which relate to protective measures" can be included in the NHA order. I am seeking to go somewhat further than that by having the order include management plans.

The Minister informed us on Committee Stage that the current drafting does not preclude her from including management plans if she so desires. However, a strategic approach should be put in place in relation to NHAs, although that is more important for some than others. If a management plan is part of the NHA order, it will be a matter of public record. For example, the NGOs would know in a very detailed way how the Minister wanted a particular NHA managed in her order. The NGOs would be able to informally monitor what was happening. If difficulties arose which were not brought to the Minister's attention, the level of detailed information available would mean the NGOs, for example, could alert the Department to deviations from the management plan, as contained in the NHA order.

There is also the more general point of public interest. If the specific details of a management plan were contained in an NHA order as a matter of public record, it would be scrutinised by the public and younger people would become interested in the NHAs in their areas. They could get information on the reason a particular site was designated and the scientific material which made that site appropriate for designation. They could also see how the Minister and the Department would seek to put into effect the conservation of the NHA.

This is about transparency, dissemination of information and encouraging engagement and involvement. The proposal in the amendment can only be for the good, in terms of the objective we all share, which is conservation of our heritage to the very best effect.

Having listened to the reasoning behind Deputy O'Shea's amendment, it seems very worthwhile to have open procedures in place for management plans, so that we can follow step by step the reasoning for a decision relating to an NHA. It seems very worthwhile to have such a system in place to facilitate the public and others in understanding the workings of NHAs.

In my view, it would not be proper to specifically refer to management plans in this section, as proposed by Deputy O'Shea. An NHA order may include whatever provisions are required in order to provide for the conservation of sites, including stipulations concerning the management of the site. Furthermore, in addition to management plans there are various other types of plans or protective measures which could well be relevant to the conservation of an NHA. Examples include habitat conservation guidelines, commonage framework plans, individual farm plans and agriculture zoning plans. It would not be appropriate or necessary to detail all of these in primary legislation. One danger of detailing such a list is that the validity of employing a measure not included in the list could be called into question. Additionally, it is possible that further types of conservation measures which are not in existence at present could be devised at a future date. Therefore, I cannot agree to include a reference to management plans as sought by Deputy O'Shea. To do so is not only unnecessary but could ultimately weaken the protection afforded to NHAs by limiting the range of conservation measures the Minister could employ to ensure the conservation of NHAs.

I disagree with the Minister. What I am seeking is that the order, which would be a statutory document and one of public record, would contain the widest possible information. The more information that is available in the statutory document the better for the conservation objective. The order is one matter but the amount of information given is another. I want to ensure that the maximum amount of information is made available and that there is the widest possible engagement and involvement.

I would be happy if the Minister would look at this in the context of the debate in the Seanad. I realise she wishes to avoid onerous procedures and approaches but the Bill states the order may include such measures as the Minister thinks fit. That should be firmed up because, as I read it, the order could be a very skimpy document. While that would satisfy the legal aspect it is the educational aspect that is vital.

Heritage belongs to everyone and sharing it is important in this legislation.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 20, line 2, after "land" to insert "or where the Minister has issued a notice in accordance with section 16, and where a decision under section 17 or 18 has not yet been made".

I tabled this amendment in an effort to have improved protection for NHAs, particularly those that have been notified or proposed. This was discussed on Committee Stage and the Minister proposed amendments that went some way towards addressing the matter. However, I am concerned that after the three months, there is a time span during which the NHA will not be protected. It could take up to six months or longer. From the time SACs are proposed they are protected and I wish to ensure the same applies to NHAs. The Minister addressed this when speaking to Deputy Sargent's amendment. I do not believe it would place an undue burden or restriction on the landowner. If we deem it worthwhile to propose an area as an NHA it should be deemed to have protection until such time as it can be established as an NHA.

I have already outlined that I brought forward, under this Bill, a revised system for NHAs which will ensure their permanent protection in a balanced, fair and open manner. Deputy Clune's proposal concerns the issue of protection for notified as opposed to designated NHAs which was raised by other Deputies on Committee Stage.

During the consultation process that I put in place on publication of the Bill a number of conservation NGOs, while welcoming the overall approach on NHAs, also raised concerns over potential damage to NHAs during the notification stage. I recognise that the interim between notification and designation is potentially dangerous. While I believe the vast majority of farmers and other landowners would not set out to damage NHAs I am conscious proposed NHAs could be open to damage by unscrupulous individuals during the notification stage. In recognition of these concerns, I devised a package of amendments aimed at ensuring that damage to notified NHAs can be prevented. I believe these improvements, which I introduced on Committee Stage, will secure my overall objective which is to have a system for NHAs that guarantee their permanent protection in a fair and balanced way while elimi nating the need for compulsory purchase. Specifically on section 19 I introduced an amendment which will require that on a notified NHA a person shall not carry out any potentially damaging works without first giving three months' notice to the Minister. Proceeding with works without giving such notification could constitute an offence. These provisions should be considered together with section 20 of the Bill which enables me to apply to the courts to seek the prohibition of such works.

Furthermore, I introduced an amendment strengthening section 21 so that I will be able to order the restoration of a site damaged during the notification period when it is designated as a natural heritage area. Additionally, I introduced an amendment to section 24 so that the requirement placed on other Departments and certain public bodies, including planning authorities, to consult with the Minister for Arts, Heritage, Gaeltacht and the Islands on any proposed works and avoid damage to important sites is being extended to cover notified NHAs in addition to designated NHAs.

Section 50 places a similar obligation on the Commissioner of Public Works while undertaking drainage schemes. On foot of the concerns raised on Committee Stage regarding notified NHAs I further examined, including through thorough consultation with the Attorney General's office, whether protection for notified NHAs could be strengthened further. In particular, as promised, I raised Deputy Higgins' proposal, which I appreciate is being made with a view to improving the Bill, with the Attorney General. The clear advice is that restrictions are already imposed on a landowner of a notified NHA and that it is not possible to go beyond this. I reassure Deputies on the provisions for notified NHAs. Despite the amendments I introduced on Committee Stage some Deputies seem to believe that notified NHAs are being left without any safeguards and that such sites will be left open to wide scale destruction without any mechanism to prevent damaging works on them. This scenario is not the case. The Bill provides clearly that significant damaging works in notified national heritage areas can be prohibited.

A person cannot carry out works without notifying the Minister three months in advance and the Minister can seek a court injunction to stop any works if they are thought likely to destroy or significantly damage the notified site. We can move within a relatively short period of time, three months, to protect a proposed NHA by designating it in the event it is considered appropriate to do so. Overall, these are reasonable and appropriate measures to ensure that notified NHAs can be protected without placing an onerous or unfair burden on the landowner.

In light of the legal advice available to me, I have gone as far as possible in providing protection to notified NHAs. I am satisfied these measures will adequately safeguard notified NHAs.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 20, line 24, after "and" to insert "the owner, occupier or user as the case may be has after the expiration of the said period of 6 months given the Minister 14 days' further notice of the intention to carry out or cause or permit to be carried out the works concerned and".

This amendment arises from our discussions on Committee Stage. I was horrified at the prospect of somebody applying to carry out work on a NHA and, by default, having permission to proceed if the Minister did not respond within six months. We should guard against a default provision.

Everybody is familiar with situations where there have been systems breakdowns in the planning process which resulted in something going ahead which should not have gone ahead. The amendment guards against that eventuality. I propose that when the six month period expires without the Minister responding there should be a further period of 14 days during which there would be an onus on the applicant to inform the Minister that no decision has been communicated to him or her within the six months. The Minister would have 14 days to respond. This is a reasonable way to address the issue. The doomsday scenario should not arise when the system breaks down somewhere and there is no response by the Minister.

The amendment gives the Minister a second opportunity to respond but the response period is limited so there is no undue delay for the applicant, who obviously has rights with regard to responses. In the probably small number of instances where the system breaks down and there is no response, the amendment provides for a failsafe mechanism to protect the public interest in relation to our heritage.

We discussed this amendment on Committee Stage. If six months passes from the date of notice without a response from the Minister, permission is, in effect, granted. That could have dreadful consequences. I am anxious to hear the Minister's response to the amendment. Deputy O'Shea is attempting to provide for a failsafe mechanism to avoid a situation arising where, when the six month date passes without a communication from the Minister, permission is granted by default. It is a worthwhile amendment.

I am delighted Deputy O'Shea put down this amendment. I am a little surprised there is no corresponding amendment in the name of the Minister but perhaps she will tell us that she intends to accept Deputy O'Shea's amendment.

The issue is glaringly obvious in the section. It holds out an appalling vista. The provision depends on the perfect working of the postal system, computer systems and the bona fides of the person receiving the communication coming together in a perfect package. Real life is not so failsafe or perfect. I hope the legislation can be amended as proposed by Deputy O'Shea. At least it will provide a failsafe mechanism which puts the onus on the applicant or landowner to double check with the Department that there has not been a breakdown in communication. That is a basic requirement and I hope the Minister will recognise the glaring omission in the Bill which Deputy O'Shea's amendment seeks to address.

The Bill provides that a landowner must notify the Minister if he or she wishes to carry out work on a designated NHA. The Minister can either prohibit such work or agree to it being carried out. If the Minister does neither within six months of being notified, the landowner can proceed with the work.

It is only reasonable that landowners have an assurance they will have a decision on their proposed development within a specified period. The Office of the Attorney General is also strongly of this view. Otherwise landowners can be left in limbo in the long-term. It would not be satisfactory to have an onus on the owners, occupiers or users of the land to give a further 14 days notice to the Minister at the conclusion of the stipulated six month period. It would effectively involve the use of the applicant as part of the management process to ensure that his or her application is not overlooked. This would be unfair. It would be a most unusual approach and would not constitute good legislation. Such drafting would also not be to the liking of the Office of the Attorney General.

I appreciate that the amendment is motivated by a desire to avoid damage to a NHA through the failure of the Minister to communicate a decision within the six month period. As I outlined on Committee Stage, I am aware that some NGOs have raised concerns about the possibility of the Minister deliberately not replying within six months to allow development to proceed in an underhand way. Such fears are not well founded. Certainly, I would not approach my responsibilities in such a cynical way.

A more genuine fear might be the possibility of replies not being issued due to pressure of work, oversight and so forth. However, I intend to address this through proper management systems in respect of the process within the Department. This will involve actions such as recording the initial notification and having periodic reviews to ensure all cases are addressed within six months, which is a generous period in this regard. I am confident this system will work well and that the mechanism proposed by Deputy O'Shea is not required.

I am disappointed with the Minister's reply. To the best of my recollection, the Minister conceded on Committee Stage that there is no perfect system and that systems breakdowns occur in the best organisations. She indicated that the amendment would be bad legislation and that she would consider it unfair. I have no wish to be unfair to anybody but all Members have a responsibility with regard to our heritage, particularly NHAs.

In arriving at a balance between the rights of an applicant and protection of the national heritage, the weight should lie towards our national heritage. If an important component of our national heritage is destroyed, we cannot replace it. A computerised systems failure could be serious where a number of decisions are reached but that communication is not made due to a computer virus. While it appears we are trying to address something that would not happen often, scenarios can develop as a result of which a major difficulty emerges. I would be satisfied if the Minister addressed this issue in the debate on the Bill in the Seanad. If it is more acceptable to the Minister that after five and a half months an applicant would be obliged to indicate that no decision had been reached, that requirement would be as effective as the amendment in addressing the objective of the amendment.

It is important to take stock of the various problems associated with not amending the Bill, as requested by Deputy O'Shea. From the point of view of our national heritage, property owners and the economy, the country is trying to come to terms with the great damage and destruction caused by the recent flooding. Many of the problems I encountered in recent days have been exacerbated by public officials working under pressure. That is the explanation I have been given as to why planning permissions were given where the infrastructure was not adequate to deal with storm waters. I am sure that from time to time public pressure exists in all Departments and in all local authority offices. The issue at stake is that there should be some safety mechanism to avoid such pressure resulting in destruction by default. This is a moderate and responsible provision. I urge the Minister to reconsider the amendment. The Attorney General's advice would not stand up if, for example, one was to say to the governor of Texas that if he does not get word back about appealing an execution, the execution can go ahead for the sake of not holding up the executioner. While that is a slightly facetious comparison, the same system of justice operates depending on the importance of the application to the person concerned. The applicant could regard it as extremely important. I ask the Minister to take account the need for a fail-safe mechanism.

I listened carefully to the Deputies. Deputy O'Shea put forward a variation on the theme. His proposal puts an obligation on the applicant. It would place a further onus on the landowner, which is a problem. That is fraught with legal difficulties.

Regarding the mechanisms that will be put in place to deal with these issues within a six months period, it would not be a question of leaving everything to the last minute and depending on postal systems or hoping that there would not be computer failures. I do not envisage such decisions would be taken at the last minute. I cannot accept the amendment for the reasons I outlined. However, I will investigate if another approach can be taken. That can be discussed in the debate on the Bill in the Seanad. I cannot accept the proposal put forward, as acceptance of it would put an onerous responsibility on landowners, which would be a matter of grave concern to the Attorney General.

Doctors differ and patients die. While I accept that the Attorney General is a eminent jurist, there may be other views on how this issue can be addressed. I am sure the Minister would agree there are pressures regarding the number of planning referrals in her Department and in Dúchas. As the national development plan rolls out, particularly in terms of road infrastructure, I am concerned about the ability of the Department and Dúchas to respond adequately to the increased workload, given their current staffing levels. While I accept fully that it would not be the intention of any Minister to put matters on the long finger, an increased volume of work throws up priorities. If a number of national development projects become priorities, the Government could prioritise projects on the basis of pressure exerted by various Departments. I am not suggesting the Minister would do that, but she will be in office for some of the period of the implementation of the national development plan. Addressing this issue is not as easy as saying systems will develop. The staffing level in the Department is inadequate to deal with the heavy workload they have faced in recent times, which will increase. While onerous conditions should not be imposed on anybody, my amendment or the suggestion does not impose onerous conditions. All they do is impose a further obligation on the applicant that if the applicant does not get a response after five and a half months, as per my suggestion, or after six months, as per my amendment, one further communication would be necessary. In the context of protecting and conserving our heritage, my suggestion or amendment is not underpinned by an inequity, rather inequity underpins the activities of the population who are the custodians and the owners of our heritage.

How stands the amendment?

I withdraw my amendment on the basis that the Minister has agreed to reconsider the matter.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 20, line 32, to delete "3" and substitute "6".

This is a further amendment to section 19 which deals with restrictions on carrying out certain works. My amendment proposes that that subsection (2) would read, "Notwithstanding subsection (1), where a notice has been served under section 16(2)(b) in respect of any land, no person shall carry out, or cause or permit to be carried out, on that land any works specified in that notice, being works which are liable to destroy or significantly alter, damage or interfere with the features by reason of which the notice was served without giving the Minister no less than three months notice.

That was the Minister's amendment on Second Stage. It would be more appropriate in the public interest to extend that three month period to six months. It is a point of judgment and I would like to hear the Minister's opinion.

Regarding the requirement that a person notifies the Minister before undertaking works on a notified NHA, Deputy O'Shea proposes that the notification period be extended from three to six months. The requirement that a land owner gives three months notification prior to undertaking any works in a notified NHA amounts to placing a burden on a land owner. The advice from the Attorney General's office is quite clear on this – any burden placed on the land owner in an NHA must be reasonable. I consider three months to be a reasonable period to require a land owner to wait before he or she can carry out works. To impose a restriction of six months on him or her runs the real danger of being found unreasonable and unnecessary. From the perspective of allowing the Minister sufficient time, a period of three months is adequate to allow the Minister time within which to act; three months allows the Minister sufficient time to undertake any assessment of the implications of the proposed works, to move to designate the site as an NHA or to proceed to seek a court injunction if that is considered necessary.

I listened carefully to the reply, but our fears relate to staffing, workload and response time on the part of the Minister and her officials. She would agree that in the context of rolling out various projects under the national plan, which will involve all kinds of excavations all over the country, there is a danger that response times may get longer. I am looking for the notification period to be extended to take cognisance of the strong likelihood that the Department's response time will disimprove rather than the opposite in the short to medium term. There is no great indication here that the Government will provide a significant amount of additional staff to the Department and even if it were so disposed there are shortages of qualified personnel in some professional areas.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 10 arises out of Committee Stage proceedings. Amendments Nos. 10 to 15, inclusive, are related and amendment No. 14 is an alternative to amendment No. 15. Amendments Nos. 10 to 15 are to be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 10:

In page 20, between lines 39 and 40, to insert the following:

"(b) Where permission to carry out works is being granted under subsection (3), the Minister shall attach any conditions or restrictions to the order as is necessary for the conservation objectives of the natural heritage area concerned.”.

This amendment arises out of section 20, which states that in carrying out works for imperative reasons of overriding public interest, which interest may be of a social or economic nature, and in the absence of an alternative or viable situation, the Minister may decide to give the owner consent to undertake the works.

Amendments Nos. 11 to 15 address the issues I raised on Committee Stage to some extent and I welcome them in that they set conditions down in more detail. However, they do not take into account that once permission is given to carry out work on a site, that effectively becomes a new site for the purposes of designation. Maybe it is implied, but it needs to be stated. The site has been altered and from planning law one knows that once a site is altered one needs a new permission as we are effectively talking about a new entity to a large extent. That is all the more important in relation to an NHA or any type of designated site because, as we know all too well from dealing with hydrology and flooding in recent days, if a drain is dug it could have a significant knock-on effect on other parts of a site. Other works can also have secondary effects in addition to being related to the areas of the site being worked on.

I hope amendment No. 10 can be counterbalanced by the Minister's amendments, but they do not set down the conservation objectives underlying the conditions, which I feel is necessary. Perhaps they are implied, but I would like the Minister to tell us what kind of conditions would be considered in her amendments. She should stress the conservation objectives and why those conditions are needed, as that is what we are here to do; to ensure the greatest level of conservation, regardless of what works are allowed.

Amendment No. 15 seeks to ensure that, where there is an appeal against a decision of the Minister not to grant designation, within 30 days there can be an appeal against this. It is a rather technical legal point but it is very important in terms of the efficient operation of the appeals system. As the text stands, the arbitrator of the appeal goes back to the beginning and must make a fresh start from the first point of the appeal. It is in the public interest in terms of efficiency that one should start with the decision. The onus should be on showing that the decision was unreasonably made by the Minister rather than going back and rehashing the whole thing again. The focus should be on the reasonableness or otherwise of the Minister's decision. This has a number of advantages to recommend it, not least being the cost factor. In this sort of situation nothing in particular is gained from going back to the beginning and rehashing the process all the way through to the decision; the decision as communicated by the Minister should be the subject of the appeal.

Section 19 relates to the protection that will be afforded to NHAs and provides for the imposition of restrictions on the carrying out of works likely to destroy or significantly damage an NHA. Such works may not be carried out without first obtaining the consent of the Minister for Arts, Heritage, Gaeltacht and the Islands.

On Committee Stage I inserted an additional provision into section 19 that placed an obligation on a landowner to provide me with three months notice of his or her intention to carry out works in a proposed NHA. This amendment will facilitate me as Minister to make a final decision on designation in the three month period. If, for some reason, this is not feasible, I can seek a court injunction to stop damaging works in such a proposed NHA. It would be an offence to contravene the provisions of this section. Where consent to works is refused, the affected person may object within 30 days and has the right to have the case heard by an independent arbitrator whose decision will be binding.

On Committee Stage Deputies Clune and Sargent tabled amendments that proposed to allow the Minister of the day to attach conditions to a consent of works for imperative reasons of overriding public interest, issued under section 19(3). I agreed to re-examine these issues for Report Stage and I am happy to propose further amendments that will not only meet the concerns of the Deputies but will further enhance the provisions. I thank both Deputies for their input in this regard.

In light of the amendments I have tabled, I do not believe that amendment No. 10 in the name of Deputy Sargent should be accepted. The Deputy will agree that my proposal will not only meet his requirements but will also enhance his proposed amendment.

Amendment No. 11 proposes the insertion of a new provision at section 19(4). This will deal with consent to works on an NHA issued in normal circumstances under section 19(1). Such a consent will be given where the works involved are not deemed damaging to an NHA. The provision will allow me, as Minister, to attach conditions to a consent and to vary any such conditions. I will also have the power to revoke a consent if circumstances require this.

The insertion of the new subsection (5) deals with situations where the Minister of the day gives consent to works in an NHA for imperative reasons of overriding public interest. It is considered that this provision should only be used in exceptional circumstances and it is being inserted on legal advice. This amendment will facilitate the attachment of conditions to a consent and it will also allow the Minister to vary such conditions. Power to revoke a consent if conditions therein are breached is also included in this subsection.

Amendment No. 12 to section 19(4) is technical in nature and consequential on previous amendments. The insertion is being made on the advice of parliamentary counsel and its purpose is to provide consistent drafting among the various subsections.

Amendment No. 13 involves the insertion of a new subsection (5)(a) and is a technical amendment consequential on previous amendments. Its purpose is to allow an avenue of appeal to a landowner who is refused consent, has conditions attached to consent or has a previously granted consent to works revoked.

Amendment No. 14 provides that where an arbitrator makes rulings in relation to such ministerial decisions, these rulings will be binding on the Minister.

I consider that amendment No. 15 in the name of Deputy O'Shea is inadequate, particularly in light of the various amendments I propose to make to section 19 and the extensive involvement of the Attorney General's office in finalising the section. I have proposed amendments to section 19 which will enable the Minister of the day to attach conditions to consent to works, to vary such conditions and to revoke such consent.

In conjunction with these amendments and on the advice of the Attorney General's office and Parliamentary Counsel I am also making the required consequential amendment to section 19(5)(b). The role of the arbitrator will be to consider all aspects of an appeal which is referred to him or her and to make a determination on the matter. Amendment No. 14 clarifies that in the event of an arbitrator making a ruling in respect of any appeal under section 19, such a decision will be binding on the Minister. Accordingly, I believe that Deputy O'Shea's amendment should be rejected.

I take the Minister's point that she has added greatly to the part of the Bill which deals with conditions. I appreciate her efforts in that regard. I do not know whether my amendment has been enhanced but the Minister's amendment is an adequate substitute. I hope that the conservation objectives to which my amendment expressly refers are covered by the amendments tabled by the Minister. With that in mind, I am happy to withdraw my amendment in favour of the Minister's.

I do not believe that the point I raised has been addressed substantially by the Minister. The Bill, as drafted, reads "where the arbitrator determines that the Minister should give consent to the carrying out of the works concerned", whereas my amendment suggests that it should read "where the arbitrator determines that the Minister has unreasonably refused to give consent". There is a subtle difference involved because use of the term "the Minister should give" involves a different judgment. However, if the Minister has received legal advice to the effect that the issues surrounding these amendments are being addressed in the most appropriate way, I will be happy to withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 20, between lines 39 and 40, to insert the following:

"(4) Where the Minister decides to give consent to the carrying out of works to which subsection (1) relates, the Minister may—

(a)attach such conditions to the consent as the Minister deems appropriate, or

(b)at any time vary such conditions as the Minister deems appropriate, or

(c)revoke such consent to works if in the opinion of the Minister the conditions attached to such consent have been breached, or the continuation of such consent would be liable to destroy, or significantly alter, damage or interfere with the features by reason of which the designation order was made,

and the Minister shall communicate in writing his or her decision to the person concerned (being the owner, occupier or user of the land concerned).

(5) Where the Minister decides to give consent to the carrying out of works to which subsection (3) relates, the Minister may—

(a)attach such conditions to the consent as the Minister deems appropriate, or

(b)at any time vary such conditions as the Minister deems appropriate, or

(c)revoke such consent to works if in the opinion of the Minister the conditions attached to such consent have been breached,

and the Minister shall communicate in writing his or her decision to the person con cerned (being the owner, occupier or user of the land concerned).".

Amendment agreed to.

I move amendment No. 12:

In page 20, line 43, after "concerned" to insert "(being the owner, occupier or user of the land concerned)".

Amendment agreed to.

I move amendment No. 13:

In page 20, to delete lines 44 to 50 and substitute the following:

"(5)(a) Where the Minister decides—

(i)to refuse to give consent to the carrying out of works in respect of which subsection (1) relates, or

(ii)to give such consent subject to conditions, or

(iii)to vary such conditions, or

(iv)to revoke such consent to the carrying out of works,

then, the person concerned (being the owner, occupier or user of the land concerned) may, not later than 30 days after the day on which the decision is given by the Minister, serve notice of appeal on the Minister against that decision.".

Amendment agreed to.

I move amendment No. 14:

In page 21, lines 4 to 6, to delete "determines that the Minister should give consent to the carrying out of the works concerned, such consent shall be given" and substitute "makes a determination in relation to an appeal under subsection (5)(a), the Minister shall act in accordance with such determination”.

Amendment agreed to.
Amendment No. 15 not moved.

I move amendment No. 16:

In page 21, line 22, to delete "subsections (1) and (2)” and substitute “subsection (1) or (2)”.

This amendment deals with subsection (7) and is purely technical in nature. Its purpose is to clarify that an offence may be committed under either section 19(1) or (2).

Amendment agreed to.

Acting Chairman

Amendment No. 17 is a drafting amendment, amendment No. 18 is cognate and they may be taken together by agreement.

I move amendment No. 17:

In page 21, line 28, before "application" to insert "an".

Section 20 will enable me, as Minister, to make application to the courts to prohibit the commencement or continuation of works in an NHA or proposed NHA where such works are considered liable to destroy or significantly damage the site in question. The two amendments are technical in nature and are proposed on the advice of parliamentary counsel. In both instances they involve the insertion of the word "an" before the word "application" to improve the clarity of the drafting.

Amendment agreed to.

I move amendment No. 18:

In page 21, line 34, before "application" to insert "an".

Amendment agreed to.

I move amendment No. 19:

In page 22, line 4, after "Where" to insert ", otherwise than in accordance with section 19,”.

It is my advice that the amendment would correct what seems to be a drafting error. Its basis is that the Minister should not be able to serve a notice in connection with works which she had failed to veto under section 19 and which would, therefore, be lawful. Section 19 places restrictions on the carrying out of certain works. We discussed this matter on foot of a different amendment on Committee Stage. The basis of the amendment is that the Minister should not be able to initiate proceedings against works which had lawfully been carried out.

The Deputy proposes to limit the application of section 21, which provides powers for the Minister to order restoration of damaged NHAs. There is a danger that the Deputy's proposal could lead to a weakening of the protection afforded to NHAs. In general, I do not anticipate that a direction to restore a site would be made after consent had been given to works under section 19. However, consequent on amendment No. 11, conditions may be attached to a consent issued under that section. In such cases works would be carried out pursuant to a section 19 consent. It would be prudent to have the power to require that restoration be undertaken in cases such as this. It could happen that a person who obtains consent to carry out works under section 19 would not subsequently abide by the conditions attached to the consent. In such cases, if damage was caused to the NHA, it could be that restoration would be appropriate. If the words proposed by the Deputy, "otherwise than in accordance with section 19", were inserted, it could be a matter of argument or interpretation whether this person, who had consent, albeit subject to conditions, under section 19 had acted in accordance with that section. The Deputy's proposal would, therefore, leave open the possibility that a person could seek to evade having to carry out restoration works on an NHA in cases where restoration would be appropriate.

It may be that the Deputy is concerned about a hypothetical situation where a person could be directed to restore a site after he or she had carried out works in good faith after obtaining a consent under section 19. It is not the intention that the section could be used in this manner. More to the point, I have absolutely no doubt that it would not be proper, nor would it be legally feasible to give a person a consent and to then turn around and require him or her to restore the site if damage was caused as a result of actions taken on foot of that consent. Therefore, I cannot accept the Deputy's proposal as it could lead to a weakening of the protection for NHAs.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 22, between lines 28 and 29, to insert the following:

22.–Where works are carried out on land, an application under section 20 may not be made, nor may a direction under section 21 be given, later than 10 years from the date of the carrying out of the works concerned.”.

This amendment also relates to section 21, which deals with the restoration of land in natural heritage areas. Under the planning Acts there is a limitation period of five years. It seems desirable to have a reasonable limitation period within which the Minister would be required to act, otherwise the conveyancing of land would become a major problem. That is my legal advice. What the amendment boils down to is that if ten years had elapsed since works were carried out on an NHA, the provisions of the Bill relating to restoration would not apply. I would see this, doubling the figure of five years stipulated in the planning Acts in the context of this legislation, as a fair way of approaching the issue.

While I can understand the intentions of the Deputy in proposing the amendment, having considered it in detail, I cannot accept that it is appropriate for inclusion for a number of reasons. I see a practical difficulty should the proposed amendment be adopted. The crux of the matter is the requirement that would exist to establish definitively when precisely the alleged works within the NHA were carried out. This would necessitate establishing the specific day, or days, on which the alleged works were undertaken. It would be extremely difficult to prove the exact date, or dates, on which the works in question were carried out, particularly if a number of years had elapsed, which is likely in the scenario envisaged by the Deputy. In addition, the obligation on the Minister to determine precisely when the works were carried out could be used, possibly effectively, by the owner-occupier as a means to avoid having to restore the lands.

In the case of alleged damage to an NHA, where restoration is viable, my Department will act expeditiously to redress the situation by endevouring, where appropriate, to have the site restored as soon as is reasonably practicable. I cannot envisage a situation where many years after the works had allegedly been undertaken my Department would intervene to order the restoration of an NHA. I expect that after such a period it could prove extremely difficult to restore an NHA effectively. In the circumstances I cannot agree to the amendment on the grounds mentioned.

Before the Bill is introduced in the Seanad I ask the Minister to examine the need to provide for some limitation period, otherwise the conveyancing of land could present a major problem. That is my advice. I ask the Minister to investigate the matter and, if the advice is that it could present a real and substantial problem, to seek to address it appropriately.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 32, line 4, after "regulations" to insert "which in the opinion of the Minister is fit for commercial exploitation".

Section 32 deals with the exclusion of certain wild animals from regulations made. I understand it was necessary to include this section because of the alterations made to the definitions of flora and fauna in the interpretation section. On Committee Stage I drew the attention of the Minister to the reference to section 32 in the explanatory memorandum, the final sentence of which reads, "It is expected that such exclusions will apply only to commercially exploitable species". I am seeking to have this restriction written into the legislation.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.