Dáil Éireann debate -
Thursday, 27 Jun 2002

Vol. 553 No. 7

Minister for the Environment and Local Government (Performance of Certain Functions) Bill, 2002: Second Stage.

Minister for the Environment and Local Government (Mr. Cullen)

I move: "That the Bill be now read a Second Time."

The purpose of the Department of the Environment and Local Government (Performance of Certain Functions) Bill, 2002 is to complement the making of a Government order under the Ministers and Secretaries (Amendment) Act, 1939, transferring functions relating to heritage matters to the Department of the Environment and Local Government. In announcing the new Government on 6 June, the Taoiseach placed strong and renewed focus on environmental sustainability. Consistent with this approach, the Taoiseach has mandated the Department of the Environment and Local Government with the additional responsibility of protecting our natural heritage and heritage policy generally. This is a timely move, particularly in light of the recent publication of the national heritage plan which my Department will implement in line with the commitment in An Agreed Programme for Government.

There is widespread understanding of what is meant by our national heritage. It includes the natural environment like flora, fauna, wildlife habitats and the built environment such as monuments, archaeology, streetscapes and more. Heritage is valued by the people, not only for its intrinsic value but for its economic, cultural and recreational benefits. The recent publication, for the first time, of a national heritage plan signalled a new and more coherent approach and provides a comprehensive strategy and framework for the protection and management of heritage over the years. The Government policy statement on heritage contained in the plan states that it is an objective of Government to ensure the protection of our heritage and to promote its enjoyment by all. This underscores the recognition which the Government accords to heritage and which is complemented by transferring responsibility to my Department, which of course retains its responsibilities for the complementary areas of protection of the environment, the planning system and local government.

It is very appropriate that the Department with responsibility for local government will also take responsibility for heritage matters. Over the past decade the planning process, which is administered by local authorities, has become a central element in the protection of heritage as well as an important instrument for the delivery of sustainable development. Amendments to the planning code in recent years, especially the provisions on protected buildings, have seen significant advances in the protection of heritage. The national heritage plan envisages local authorities taking a more pro-active role in protecting our heritage, especially in broadening involvement at community level in the protection of heritage.

I should mention that, throughout my speech, I will use the term Dúchas to refer to the division of the Department of Community, Rural and Gaeltacht Affairs, formerly Arts, Heritage, Gaeltacht and the Islands, for which I am assuming responsibility. Dúchas is the part of central Government with overall responsibility for preserving the national heritage and promoting public interest in Ireland's rich store of national monuments, protected buildings and ecologically valuable sites. As such it has developed a body of expertise which has been put at the disposal of local authorities, An Bord Pleanála and the Environmental Protection Agency. Under EU and other international law Ireland has certain legal obligations to ensure the protection of our natural and built environment. Dúchas, and now my Department, has a key role in meeting these obligations.

As the pace of development in this country has increased over the last few years, this role Dúchas plays has become increasingly important if we are to achieve sustainable development. Of course, this role must be carried out in an efficient, open and transparent way. As the House will be aware, there are a number of mechanisms by which Dúchas is involved in the planning and environmental licencing processes. Dúchas is a statutory consultee with local authorities in preparing their development plans and has particular responsibility under the Planning and Development Act, 2000 in respect of recommending structures of special architectural interest for protection through the development plan. This function will dovetail with the traditional function of the Minister for the Environment and Local Government in overseeing the development plan process.

In addition, Dúchas is a statutory consultee in relation to planning applications which may impact upon protected structures, national monuments or other objects of archaeological, geological, scientific, ecological or historical interest, or which may have significant nature conservation effects. Planning applications for the relevant developments are assessed by Dúchas officials who have specific heritage expertise. It is not practical to expect each planning authority to develop the necessary expertise in these matters, as it is more sensible to have the expertise available centrally. This specialist service provided by Dúchas for local authorities, An Bord Pleanála and the EPA in relation to the protection of our heritage is vital. The purpose of the Bill is to ensure such advice is available from my Department as an input to planning or other licensing processes.

The Bill will amend the Planning and Development Act, 2000, the Environmental Protection Agency Act, 1992, and the Waste Management Act, 1996, to provide for the performance by the Minister for the Environment and Local Government of the functions transferred from the Minister for Community, Rural and Gaeltacht Affairs, formerly the Minister for Arts, Heritage, Gaeltacht and the Islands. The Bill makes an identical technical amendment to one section in each in these Acts.

Section 30 of the Planning and Development Act, 2000, precludes the Minister for the Environment and Local Government from exercising any power or control in regard to any particular case with which a planning authority or An Bord Pleanála is, or may be, concerned. Similarly, section 79 of the Environmental Protection Agency Act, 1992, and section 60 of the Waste Management Act, 1996, preclude the Minister from exercising any power or control in regard to the performance, in particular circumstances, by the Environmental Protection Agency or a local authority of the functions assigned to it by those Acts.

The principle that the Minister for the Environment and Local Government must not intervene in individual cases before An Bord Pleanála was enshrined in the planning code at the time when the board was established and the Minister's functions in determining planning appeals were removed. The Minister was, however, given power to issue general policy directives to the board to which it must have regard. However, it was specifically provided that he or she could not exercise power or control with regard to individual cases coming before the board. This was intended to underline the independence of the board in dealing with individual appeals while operating within a general policy framework set out by the Minister. This principle regarding An Bord Pleanála was extended to the determination of planning applications by local authorities in 1982 and restated when the planning code was generally revised and consolidated into the 2000 Act. On the establishment of the Environmental Protection Agency in 1992, and when its functions were extended to include responsibilities with regard to waste management in 1996, the same provision was included in the legislation to ensure the independent operation of the EPA.

This policy of non-intervention and the legislative restriction on involvement by the Minister for the Environment and Local Government in individual cases, which all of us would agree has worked well, would not, however, permit the giving by the Department of specialist advice on the natural and built heritage which is such a vital part of the planning and environmental licensing processes. I am advised that in order to permit the continued exercise of the statutory consultative functions with regard to the built and natural heritage in planning and environmental licensing matters which Dúchas has, new legislation is necessary to disapply the above mentioned sections with regard to the transferred functions only. This is the reason for bringing forward this urgent legislation, otherwise the functions could not have been transferred now or else Dúchas would have to suspend its involvement in planning and environmental licensing until this enabling legislation was passed.

Section 1 of the Bill replaces section 30 of the Planning and Development Act, 2000. It restates the restriction on the Minister for the Environment and Local Government exercising power or control with regard to any matter that is, or may be, before a planning authority or An Bord Pleanála. However, with regard to the functions transferred to the Minister from the Minister for Community, Rural and Gaeltacht Affairs by way of the Government order under the Ministers and Secretaries Act, and only to those, the section disapplies the restriction. As a result, specialist advice on wildlife, built heritage and national monuments protection functions will continue to be available to An Bord Pleanála and the local authorities when the functions are transferred to the Department of the Environment and Local Government.

Section 2 amends section 79 of the Environmental Protection Agency Act, 1992, which contains a power for the Minister to issue general policy directives to the EPA regarding its environmental licensing functions. Subsection (3) sets out that this power cannot be construed as enabling the Minister to exercise power or control with regard to the exercise of the EPA's functions in particular circumstances. The new subsection (3A) will disapply subsection (3) in so far as it relates to the transferred functions. The same amendment is made in section 60(3) of the Waste Management Act, 1996, which contains a power for the Minister to issue general policy directives to the EPA or local authorities regarding their functions on licensing and managing waste.

By referring to those powers specifically transferred under the Government order it clearly delimits the areas where the Minister is empowered to intervene in the planning and environmental licensing processes, that is, to the newly transferred powers. I look forward to assuming the new functions, integrating them within the Department of the Environment and Local Government and giving effect to the Taoiseach's wish for a renewed focus on environmental sustainability. In accordance with the Public Service Management Act, my Department will be preparing a new statement of strategy. This will give us the opportunity to set out our enhanced goals for this strengthened Department of the Environment and Local Government which we are creating to promote sustainable development and improve the quality of life for all. I commend the Bill to the House.

Mr. Allen

The purpose of the Bill is to amend the Planning and Development Act, 2000, the Environmental Protection Agency Act, 1992, and the Waste Management Act, 1996, to facilitate the transfer of heritage functions from the Minister for Arts, Heritage, Gaeltacht and the Islands to the Minister for the Environment and Local Government. While it has been described as a technical Bill, I must record my disquiet that it was published only yesterday. It takes time to consider legislation of this kind and those in my role cannot make any assumptions about whether the Bill is solely technical in nature or whether it will give underlying effects to other legislation. I accept that the Bill must be passed before the Dáil rises for the summer recess, nevertheless, like all legislation, it requires careful scrutiny. Bills dealing with planning and development should receive the maximum scrutiny.

Section 30 of the Planning and Development Act, 2002, provides that the Minister for the Environment and Local Government shall not exercise any power or control in relation to any case with which a planning authority or An Bord Pleanála is or may be concerned. This provision re-enacts a similar one in planning legislation since the establishment of An Bord Pleanála in 1976. There are identical formulations in environmental law with regard to the EPA and waste licensing.

The Minister for Arts, Heritage, Gaeltacht and the Islands, now the Minister for Community, Rural and Gaeltacht Affairs, is recognised, both in primary legislation and regulations, as a party to be consulted on individual planning cases where these involve significant issues for nature conservation, habitats and/or built archaeological heritage. The purpose of these provisions is to permit comment or argument by the Minister with regard to the merits of particular planning proposals from these perspectives.

I have been advised that the Department of the Environment and Local Government sought the advice of the Office of the Attorney General and, on Tuesday, 18 June, the Attorney General confirmed that an order under the Ministers and Secretaries Act was unlikely to be able to resolve this contradiction and that separate legislation was necessary to provide for the kind of influence which Dúchas must continue to exercise in planning cases. This legislation has to be enacted before the Government order transferring the functions is made, otherwise Dúchas will immediately have to suspend its involvement in the planning process. This would have significant implications for current planning applications and appeals to which Dúchas is a party. Since this is an urgent matter I will, despite my reservations, facilitate the passing of this Bill.

Section 1 proposes an amendment of section 30 of the Planning and Development Act, 2000, which places a limitation on ministerial power. It states: "Notwithstanding section 28 or 29 . . . the Minister shall not exercise any power or control in relation to any particular case with which a planning authority or the Board is or may be concerned." Section 2 amends section 79 of the Environmental Protection Agency Act, 1992, which basically deals with general policy directives. It provides:

1. The Minister may, whenever he thinks proper, give such general directives in writing to the Agency as to policy in relation to environmental protection.

2. In performing its functions the Agency shall have regard to any directives given by the Minister under this section.

3. Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to the performance in particular circumstances by the Agency of a function assigned to it by or under this Act.

4. Where the Minister gives a directive under this section, he shall–

(a) as soon as may be cause a copy of the directive to be laid before each House of the Oireachtas,

(b) cause a notice of the issue of the directive to be published in Iris Oifigiúil and in at least one daily newspaper circulating in the State, and

(c)cause a copy of the directive to be transmitted to the Agency and to each planning authority.

5. A notice under sub-section (4) (b) shall specify where a copy of the directive to which it relates may be obtained and the fee (if any) payable in respect of such a copy which shall not exceed the reasonable cost of making the copy.

Section 3 is an amendment of section 60 of the Waste Management Act, 1996 which is a section relating to policy directions by the Minister in relation to waste licensing, the movement of waste and other matters and reads:

(1) The Minister may, whenever he or she thinks proper, give general directions in writing to the Agency or each local authority as to policy in relation to, as appropriate—

(a) the making or review of the hazardous waste management plan or a waste management plan,

(b) the management of waste recovery or disposal activities carried on otherwise than under a waste licence,

(c) the granting of waste licences,

(d) the performance by the Agency or local authority of its functions under this Act with respect to movements of waste,

(e) matters related to matters aforesaid.

(2) In performing its functions under this Act, the Agency or each local authority concerned, as the case may be, shall have regard to any directions given to it by the Minister under this section.

(3) Save as respects the matters referred to in paragraph (a) thereof, subsection (1) shall not be construed as enabling the Minister to exercise any power or control in relation to the performance in particular circumstances by the Agency or a local authority of a function conferred on it by or under this Act.

(4) Whenever the Minister gives a direction under this section, he or she shall–

(a) as soon as may be cause a copy of the direction to be laid before each House of the Oireachtas;

(b) cause a copy of the direction to be transmitted to the Agency or each local authority concerned, as the case may be;

(c) cause to be published in the Iris Oifigiúil a notice of the giving of the direction.

(5) A notice under subsection (4)(c) shall specify where a copy of the direction it which it relates may be obtained and the fee (if any) payable in respect of such a copy (which the Minister is hereby empowered to charge).

The amendments to the above mentioned sections of the Acts basically do the same thing and disapply the injunction in relation to the Minister intervening in the process either before the planning authority or An Bord Pleanála or, in the case of the Environmental Protection Agency Act and the Waste Management Act, 1996, the EPA, thus allowing Dúchas to continue with the work it has been doing to date.

In relation to the Waste Management Act, 1996, Dúchas was a statutory consultee and gave its views and comments and, therefore, must be disapplied in this case. This Bill, if enacted, will provide for the transfer of functions to the Minister for the Environment and Local Government from the Minister for Community, Rural and Gaeltacht Affairs by an order under section 6(1) of the Minister and Secretaries (Amendment) Act, 1939, entitled "Divers Powers of Government in relation to Departments of State."

Dúchas must continue to exercise influence in planning cases and needs to be involved in significant issues for nature conservation, habitats and, as I said earlier, built and archaeological heritage. The built, movable and natural heritage is an integral part of our national inheritance. It forms part of our sense of identity and provides us with resources of social, education, recreation and aesthetic value. Dúchas, the heritage service of the Department of Community, Gaeltacht and Rural Affairs, manages the Department's responsibilities under national and European law for the pro tection of conservation management and presentation of Ireland's natural and built heritage.

Ireland's built heritage consists of architectural and archaeological elements, both movable and immovable, including gardens and instances of vernacular architecture. The National Monuments Act, 1930-1994, provides a statutory basis for the protection of the built heritage and I know that a range of integrated measures are being implemented to strengthen the protection of our built heritage and this responsibility is carried out in co-operation with local authorities and voluntary groups at national and local level by influencing and implementing statutory responsibilities to protect the architectural and archaeological heritage which is not in the care of the State and by caring for over 700 heritage properties in the ownership of the State.

The protection of the natural architectural and archaeological heritage is an integral part of the State's responsibilities, requiring co-ordinated effort in many areas. Through developing appropriate policies and legislation, the heritage policy division, I know, contributes to this task. By working on policy documents and legislation, the heritage policy division also ensures heritage is taken into consideration by other Departments or bodies whose work may impact on the natural heritage and provides advice on such matters. Dúchas assists in finalising heads of Bills for legislation before submission for drafting on the natural, architectural and archaeological heritage and it also gives advice on policy and legislative implications of certain cases and issues and ensures heritage input to legislation programmes and policies of other Departments so, therefore, I believe that it is appropriate that this legislation is allowed proceed unhindered by this House.

As I stated earlier in my contribution, we have to deal especially carefully with legislation in relation to planning and development. In that context, I ask the Minister for the Environment and Local Government, Deputy Cullen, to examine a decision made by the outgoing Minister for the Environment and Local Government, Deputy Noel Dempsey, who approved a development scheme for the Spencer Dock in north Dublin. The scheme had been submitted by the Dublin Docklands Development Authority and modifications were made to the plan by Deputy Dempsey, including increasing buildings on the north quays by one storey. I find that very strange, particularly in view of the fact that this area was the subject of much controversy with an earlier proposal failing to get acceptance. The general election was held on 17 May and in the interregnum situation on June 5 the Minister approved a scheme endorsing the broad thrust of the DDDA scheme. The Minister said that the modifications he had made included a provision for increasing building height by one storey along North Wall Quay and extending the proposed Station Square southwards to North Wall Quay to embrace the river frontage. He stated that the modifications complemented and strengthened the planning scheme vision for the development of that area in a way that will provide a solid basis for the attainment of the very high urban design standards that are essential in developing a successful city quarter in the North Lotts area. He said they reflected the importance of the River Liffey to the city's heritage.

If I apply for a garage to be built on my property I would not expect the person adjudicating on my application to add a four storey house to it. It is strange that a submission made by the DDDA, the Dublin Docklands Development Authority, was changed dramatically by the Minister. At whose behest was this done? All information in regard to this decision needs to be made available. I presume it can be obtained under the Freedom of Information Act, 1997. Who lobbied the Minister?

The DDDA made the submission, but I want to know who lobbied the Minister to make a substantial change to the development, changing the whole facade facing onto the river front?

Last year the Dublin Docklands Development Authority made a planning scheme known as the Docklands North Lotts Planning Scheme under section 25 of the Dublin Docklands Development Authority Act, 1997. This planning scheme had been submitted by the authority to the Minister for approval under section 25(4) of that Act.

As the Minister will be aware, the North Lotts is bounded by campshires on North Wall Quay, East Wall Road, Upper and Lower Sheriff Street and Gill Street and measures just under 81 acres in area. It is strategically located immediately east of the financial centre and extends to the Point Depot. The predominant land use in that area is warehousing, distribution and light industry and there are a number of small but dispersed pockets of residential developments – that is the important issue. For the purpose of the planning scheme, the area is divided into eight distinctive zones, each with its own distinctive character and ownership patterns.

I am asking what were the factors and reasons which led a Minister to decide to raise the height of the building by one storey and add to the scheme as I outlined earlier. The Minister owes it to the House to make a full statement on this matter. It bears much on the subject we are discussing. Any legislation dealing with the sensitive matter of planning and development, which has such a history in this country, needs to be scrutinised in a detailed way. I ask the Minister to respond to the request I have made for the factors which influenced the former Minister, Deputy Dempsey, to dramatically change the character of this building in a sensitive residential area.

Mr. Penrose

I wish to share my time with Deputy McManus.

While this appears to be a simple technical Bill, it has significant ramifications. We respectfully disagree with the thrust of it, initially with the establishment and separation of Dúchas and of the transfer of it to the Department of the Environment and Local Government per se. I understand what the Minister is doing and the advice he received and I do not disagree with the advice he was given by the Attorney General on the aspects with which he is dealing. However, we thought that in the overall decisions made by the Taoiseach this function should have been left where it was, in an independent area in the Department.

The Bill is required as a consequence of the announcement made by the Taoiseach on 6 June, when naming his Cabinet, that he was transferring responsibility for heritage policy and Dúchas from the former Department of Arts, Heritage, Gaeltacht and the Islands to the Department of the Environment and Local Government. The Taoiseach indicated at that time that responsibility for the management and other operational aspects of our built heritage was being transferred to the Office of Public Works and as a result the Minister would have to bring forward this Bill.

The Minister outlined in expansive detail a whole panoply of important functions which Dúchas performs. That is why we disagree and will oppose the Bill on Second Stage. We all know about the importance of the principle established in legislation since the mid-1970s, under the 1976 Act, that the Minister for the Environment and Local Government must not and cannot intervene in individual cases before An Bord Pleanála. Therefore, the Minister effectively has no function, hand, act or part in such appeals and the independent principle is underpinned, paramount and sacrosanct. We all agree with that and the Minister referred to this point in his speech.

The Minister, however, was given power to issue general policy directives to the board to which it must have regard. I know what the Minister is doing in so far as he wants to incorporate Dúchas to permit the giving of special advice by the Department on the natural and built heritage, a function currently fulfilled by Dúchas. The Minister stated that the transfer Bill will enable Dúchas to participate fully in the exercise of its statutory consultative role. I understand the rationale behind what the Minister is doing but we respectfully disagree with it. It is all right in so far as it goes, but it offends the "arms length" principle which must underpin everything. I want to make it clear that it is not of the Minister's doing but a direct result of decisions made farther back in the chain to sever the Departments in the manner outlined in the allocation of Government portfolios. The Taoiseach's announcement did not raise much comment at the time, but the very fact that this Bill is now regarded as necessary raises very serious questions about the decision and in particular about whether conflicts of interests may now develop for the Minister for the Environment and Local Government as a result of the transfer.

Dúchas is an important body carrying our important functions, which the Minister set out very eloquently. It manages the Department's responsibilities under national and European law for the protection, conservation, management and presentation of Ireland's natural heritage. The national parks and wildlife division is charged with the conservation of a range of ecosystems and populations of flora and fauna in Ireland. The division is responsible for the implementation of a large body of legislation, both domestic, such as the Wildlife Acts – the Minister is busy already and he has a big role as it stands, but it is going to get bigger – and international, such as the EU Habitats and Birds Directives, and the management and development of national parks and nature reserves. The development applications section of Dúchas provides an important service in the assessment of the impact of proposed developments on the natural heritage. A particular responsibility of this division is the designation and protection of special areas of conservation, SACs, special protection areas, SPAs, and natural heritage areas. The protection of our heritage is essential not only for our own good as a people, but also to preserve the unique physical qualities of this country which draw so many tourists to our shores.

However, sometimes there can be conflicts between the need to protect our heritage on the one hand and the demands of development on the other. Recently Dúchas was the subject of criticism from a former Minister and probably from people like myself – therefore this is not a puritanical view – regarding concerns they might raise on some particular matter. That illustrates the strong independence which was always evident in Dúchas. Irrespective of our views, Dúchas was always extremely independent.

The Department of the Environment and Local Government will now have responsibility for Dúchas and the Minister also has responsibility for other important areas, including planning and development, housing, environmental services and waste management. This may lead to a conflict of interest for the Minister. He does not have to answer this today but I am raising it for the future – as a barrister, I always see issues which may arise down the line. One could envisage a situation where the Department of the Environment and Local Government, wearing its waste management hat, might favour the construction of an incinerator in a particular location, but Dúchas might have very legitimate concerns about the impact of such an incinerator on our heritage. A similar issue might arise with a major local authority housing development. I would strongly support such development and would encourage the Minister to get as much money as possible for local authority housing schemes – no doubt he will. If there were any such conflicts, how would they be resolved?

Section 60 of the Waste Management Act, 1996, states that the Minister may give general directions to each local authority as to its policy in relation to waste management plans, waste disposal or recovery activities carried out otherwise than under a waste licence and the granting of waste licences. I recall the debate on that Bill, the passage of which took virtually a year. I will never forget it and I would not ask anybody else to go through it.

Other than in respect of these areas, the Minister is specifically excluded from exercising any power or control in relation to the performance of powers by the Environmental Protection Agency or local authorities. As a result of this Bill, however, that restriction will now be qualified in regard to the functions transferred to the Minister for the Environment and Local Government from the Minister for Community, Rural and Gaeltacht Affairs by order. What is more, this applies to any functions carried out by him even before this Act is enacted.

I appreciate the fact that the Minister informed me that this Bill was being introduced and I am not taking any issue with him in that regard. I suppose I am at an advantage over my colleague in that I have some legal knowledge and I was able to read through this Bill. The Government obviously received advice from the Attorney General and that was forwarded to us through the Chief Whip. The order to which I refer has not yet been made so we still do not know the extent of the powers to be transferred. This is a most unsatisfactory state of affairs.

There is clearly a potential conflict of interest with regard to the functions a Minister may now have to carry out under his or her two different hats under the Waste Management Act. A similar potential conflict arises with regard to the Planning and Development Act and the Environmental Protection Agency Act. Even at this stage, I urge the Government to look at this issue again. It seems there is a compelling argument for giving political responsibility for the protection of our heritage to a member of Government other than the Minister who has responsibility for planning and development and for waste disposal.

I hope the Minister will be able to deal with the following matters specifically rather than globally, but I will understand if he cannot do so. In fairness to him, he is one of the better Ministers at listening to the points we make. I did not get a chance to acknowledge that in recent days. He listens to the points we make. He does not think that we come in here trying to set traps, but to improve legislation and he accepts that we do not just oppose it for the sake of doing so. We fundamentally believe what we say. I hope the Minister will see from where we are coming.

Given that many aspects of the Department of the Environment and Local Government's functions at the moment are matters for independent judgment and scrutiny by Dúchas, how would potential conflicts of interest be resolved? Can the Minister ensure the integrity of the statutory consultative functions being exercised by a body that has, effectively, been absorbed? Dúchas is being absorbed. It is a legitimate question. Will Dúchas be ring-fenced to ensure its autonomy? That could well address some of the apprehensions rightfully raised in this morning's discussion.

We argue strongly that it was not necessary to break up the former Department of Arts, Heritage, Gaeltacht and the Islands in the first place. With regard to heritage, we share the view concerning the separation of the built and natural heritage. In our view, Dúchas should be strengthened.

Will the absorption of Dúchas – the Minister calls it a transfer – into the Department not constitute a reduction rather than a strengthening of its powers? The separation of functions between the heritage and planning aspects has always existed. They should remain clearly separated because the arm's length principle is vital to underpin this aspect of the matter and to ensure there is always a perception of independence.

I have tabled an amendment in respect of another matter, and the Minister may wonder why I did so. I will try to explain, maybe not as well as he does. The purpose of the Bill goes beyond what is required in so far as it is completely open-ended. It permits the Minister to transfer functions at any time in the future. This forms the basis of my amendment which limits the power to transfer such functions to a definitive period of 30 days subsequent to the passing of the Bill from the Minister for Community, Rural and Gaeltacht Affairs.

We have a number of reservations. The Minister is, no doubt, in a position to rebut every one of them, but it is better that we present them for his consideration. We are not casting aspersions on anybody, just asking questions. We will be opposing Second Stage of the Bill. I will hand over to my colleague, Deputy McManus.

Ms McManus

I thank my colleague, Deputy Penrose, for allowing me to speak. He has expressed concerns that are shared by other Labour Party Members in respect of any potential for conflict of interest as a result of this Bill.

The Bill is relatively straightforward. It concerns powers being transferred and impacts on the relationship the Minister will have with An Bord Pleanála or his or her role under the Waste Management Act. Since we have an opportunity to consider that relationship, I would like to make a point about An Bord Pleanála. It is no longer acceptable to have a body as unaccountable as the board. That is not to say that I am arguing for interference by the Minister. That would be the last argument I would make. The nature of decisions and the way they are transmitted to the public, in terms of providing information on how they are made, is deficient. It sometimes operates on the policy of "never apologise, never explain".

My county has been on the receiving end of a number of decisions by An Bord Pleanála. The board went directly against its own inspectors' reports. It had extremely strong and expert advice on certain occasions, but inexplicably went against it. One has to remember that the inspector is the only person related to An Bord Pleanála who actually visits the site in question and has an intimate knowledge of the particular development proposal. That is an issue of concern to me.

The Waste Management Act is alluded to in this Bill. I tried to raise a matter on the Adjournment this week and requested the Minister to come into the House because I am extremely concerned about the issue of illegal dumping in County Wicklow. A reply was issued to me stating the Minister had no role to play under the Waste Management Act in terms of assessing or investigating the role of the local authority in investigating illegal dumping. Again, I find this difficult to accept.

Now that we are assessing a new relationship under the Waste Management Act, we can assess whether there are areas that the Minister needs to consider. In 1998, for example, residents in west Wicklow reported illegal dumping activity to Wicklow County Council. Nothing was done, certainly nothing effective, although specific information was given about the registration numbers of vehicles involved in the dumping. Last year the local authority at first denied that the letter had been sent when the matter came to public notice and the extent of the dumping began to be understood. The county council then said it had found the letter. What is remarkable is that, even though that letter is central to the criminal investigation on which the Garda has embarked, the county council is now saying it does not have it.

I wished to raise that issue in this House because it is a serious issue of waste management and because the Minister is the Minister for the Environment and Local Government. It is not correct for a local authority to investigate itself. It is not fair on the people working in the local authority and it is certainly not fair on the public which has an interest in this matter. My request to debate the matter on the Adjournment was refused on the grounds that the Waste Management Act precluded the Minister from getting involved.

We do not yet know the full extent of dumping in County Wicklow but it involved hundreds and thousands of tonnes of illegal waste, some of which was hazardous. We must remember that when the extent of dumping was discovered, who was down in his boiler suit only the Minister for the Environment and Local Government with a retinue of press photographers and journalists to see him visiting the site. It certainly made for tremendous photographs. However, if the Minister for the Environment and Local Government is saying he has no role in this regard, what was he doing at Whitestown? Why was he involved in terms of the public perception, yet did not get engaged in terms of how the process panned out since then?

There has still been no legal process, action taken or people appearing in court. We were told in January by the county council that this action was imminent yet nobody has been charged. The local authority lost an important piece of evidence, found it and lost it again. Now it maintains that it was not terribly important anyway. It was extremely tardy in calling in the Garda, despite urging from me and other councillors to bring in the experts, the people who had the legal authority to question people. Months passed before that was done. In effect, the local authority took upon itself the responsibility for a criminal investigation. Of course, the role of the local authority is questionable. I pay tribute to the people in Wicklow County Council who are working very hard at the moment to get to the bottom of this. Their rights must be protected and the wrongdoers responsible for the illegal dumping activity, who are still out there, must be brought to book.

In that context, I do not think it is correct for a local authority to be left, in effect, investigating its own role, as is happening now. The Minister for the Environment and Local Government has a particular duty of care and a role to play and he should not stand aside in a case such as this. A consultant's report is to be issued shortly and decisions will have to be made in Wicklow – decisions relating to the policy outlined by other people on waste management. These decisions will affect local people in the beautiful, if not spectacular, area of west Wicklow. Their environment has been polluted and contaminated by a huge amount of extremely profitable criminal activity. The detritus left behind will be impossible to clean up fully because of the scale of the damage. It is certainly the worst crisis I have seen in my long career – I do not want to say how long – as a county councillor, yet the Minister appears to stand aside. I mean no disrespect to the current Minister, but I ask him to listen to what I am saying. He has a very good reputation for fairness.

The information we have from the county council is sketchy. Even though I am a member of the council I have difficulty extracting information. The local residents have been informed that the letter they sent has gone missing once again. There has never been a satisfactory explanation for the fact that a notice prepared by the council last year under section 55 of the Waste Management Act, 1996, was not sent out. The council has admitted it was responsible for a certain amount of inert dumping at Whitestown. We need to know the extent of that. We also need to know why Wicklow County Council, in April 1999, sent a letter through one of its engineers to the owner of the land at Whitestown stating that the council had an interest in carrying out dumping on that site.

I have been in the Department of the Environment and Local Government, so I know the Minister will argue that local authorities are sovereign in the sense that they must manage their own business. However, at the end of the day somebody must evaluate the performance of local authorities. Somebody must be responsible for ensuring they are doing their jobs correctly. If there are questions relating to the role of the local authorities on any issue, there must be checks and balances to make sure that right is done and seen to be done. It is a year since the issue of waste management in west Wicklow first came up. A policy has been outlined very clearly by the Minister for the Environment and Local Government. I do not believe, looking at Wicklow County Council and County Wicklow itself, that the policy is working. It cannot be working if, despite such extensive evidence of illegal, massive dumping, nobody has been taken to court. The position of the county council is that it cannot stand aside from the part of this story that relates to it. The only person who can deal with this is the Minister. While the Garda is carrying out criminal investigations the members of the council are doing their work, but I am concerned about this issue.

I also ask the Minister to assess the functioning of An Bord Pleanála. At present, Dúchas has certain rights the Minister does not have, but they are very limited. We must ensure that important, fragile heritage areas, particularly in the area around the greater Dublin conurbation, are protected. These crucial matters, in terms of both planning and waste management, deserve a more extensive debate than the one we are having today, which is about a minor and limited aspect of legislative change. Inevitably, once any change relating to these two fundamental issues is considered, bigger issues come into play. It is important these are addressed. A new Minister is now setting out, hoping to make his mark. Having been freed of his responsibilities in terms of roads, he has an opportunity to deal with these matters, some of which are central to the future and the quality of life of the residents of my county and of the country at large.

Acting Chairman (Mr. McCormack)

As there is nobody on the Government side we will pass on to Fine Gael. I am anxious to contribute to the debate, so I ask Deputy Allen to take the Chair. Deputy Cuffe will be free to be called after that, but the Minister must be called at 12.50 p.m.

Mr. McCormack

I am surprised there are not more Deputies in the House, because this is very important legislation and, as a number of speakers have pointed out, it needs to be dealt with fairly urgently. The purpose of the Minister for the Environment and Local Government (Performance of Certain Functions) Bill, 2002, is to complement the making of a Government order on the Ministers and Secretaries (Amendment) Act, 1939, transferring the functions relating to heritage matters to the Department of the Environment and Local Government. I am puzzled about the reason for this. The Minister has a busy schedule, so why are extra functions being passed to him from the former Department of Arts, Heritage, Gaeltacht and the Islands? I have no doubt about the Minister's ability to deal with extra functions, but, as a number of speakers have pointed out, there is now a stronger possibility of ministerial conflicts of interest.

As Deputies Penrose and Allen have pointed out, there are several matters for which the Minister will have primary responsibility as the Minister of the Environment and Local Government, including planning and other local authority matters and waste management. It puzzles me how the Minister will overcome these possible conflicts of interest. Perhaps he might elaborate on this when replying. For example, the Minister will have responsibility for waste management and if an application is submitted to build an incineration plant in a certain area and that application goes to An Bord Pleanála, where will the Minister's function rest or what will be his major responsibility?

While we have taken a position not to impede the legislation because it is necessary, that does not stop us from asking serious questions. Does the passing of the legislation strengthen or change the effect of the Minister's involvement with An Bord Pleanála? I am not exactly clear whether his functions and responsibilities are increased compared to those which existed previously or whether it is a direct transfer of the same responsibilities which were previously held by the Minister for Arts, Heritage, Gaeltacht and the Islands and which will now be held by him as Minister for the Environment and Local Government. I would like an answer to that.

There are times when some of the decisions of An Bord Pleanála are puzzling to say the least. It concerns the public and public representatives in some cases when the board overrules the recommendation of its inspector and makes a different decision. That is puzzling to members of the public and to public representatives because they do not have a clue of the position in that regard.

Mr. Cuffe

I echo many of the concerns my colleagues have voiced about the legislation, especially the centralising of power within one ministry. There is a seminal issue of the conflict of interest which may arise whereby the Minister may act as judge and jury on certain issues relating to specific areas under the legislation. I am concerned that a conflict of interest may arise in the area of waste management.

I will put forward a scenario. If the Minister were to decide an incinerator was necessary in a certain area in which heritage issues are at risk, for example, the Boyne Valley where a waste management plan might call for an incinerator while significant issues of heritage might need protection, we would be concerned that that might involve a significant conflict of interest for the Minister.

We are also concerned about the disappearance of the word "heritage" from the title of a Department, and this goes beyond a simple issue of naming. It shows the lack of importance given to heritage by the Government in recent times. There is a reduction in the amount of conservation grants issued, from £4 million last year to €3 million this year, a reduction of 40% in assistance from the State to architectural heritage throughout the country. I am concerned that not only are we seeing the word "heritage" being dropped, but there is a significant reduction in the amount of finance being made available to those trying to conserve or protect architectural heritage.

I am also concerned that, by having powers vested in the Minister in the area of heritage, it may allow him to intervene in many planning applications. For example, when an environmental impact statement is called for or submitted within a planning application, that statement must examine a myriad of issues, among which is heritage. I am concerned that that may give the Minister a facility to intervene in major planning applications within the State. This centralising of power could lead to a conflict of interest in this regard. We are concerned that significant powers are vested in the Minister.

Returning to the issue my colleagues raised earlier about the Dublin Docklands Development Authority, it was pointed out that when the previous office holder approved the plan for the North Lotts area, he increased the quantum of development on the site. That is a significant power being vested in the Minister. It is not irrelevant to point out that some of the lands on which the area which could be developed was increased belonged to a major contributor to the Minister's party. It is important that the potential for a conflict of interest is minimised in this regard. I am concerned when I see further powers being vested in the Minister.

Mr. Cullen

On a point of order, that is a highly regrettable remark the Deputy has made. He may be new to the House but he should withdraw the remark he made about a developer who is involved in the Dublin docklands development site having a relationship with my party. The way he put it is highly regrettable and should be withdrawn.

An Ceann Comhairle

It is not appropriate to refer to people outside the House who are not in a position to defend themselves in the House.

Mr. Cuffe

Not being familiar with protocol and procedure of the House, I withdraw the remark. It is the type of remark I would make on Dublin City Council. If it is not in accordance with the rules and protocol of the House, I withdraw it.

We are concerned that the word "heritage" has disappeared from the title of a Department and that that is reflected in funding available to architectural heritage. I am also concerned that a conflict of interest may arise, especially in the area of waste management where the Minister already has extensive powers and, if heritage issues arise in addition to waste management ones, he may well be judge, jury and executioner. I oppose the legislation.

Minister for the Environment and Local Government (Mr. Cullen)

I thank Members for their thoughtful contributions to the debate. I understand the points made and the reasons people made them.

I am not making any changes to the legal base of operations. I am maintaining the legal position as it stands. However, because of the transfer of functions, the advice from the Attorney General was that I needed primary legislation to confirm the existing legal framework and what is already an operational matter. No change is being made.

I thank Deputy Allen for his support of the Bill, notwithstanding the reasonable reservations he outlined. A short time frame was available to me to produce the Bill. I tried to flag it quickly to the Opposition spokespeople when I became aware of the advice. My attitude would be to try to keep communication lines open particularly between the major parties and myself. I will ask my officials to facilitate in terms of the supply of information where possible.

That we want to get rolling on this quickly should be seen as indicative of the Government's approach and enthusiasm for the Taoiseach's changes as outlined when the Government was formed and new Departments were set up. In a sense that point comes back to the amendments put down by Deputy Penrose. If there were any doubts or lack of enthusiasm about this I would not be here today moving the Bill. It is something we need to do quickly and was supported by all sides of the House in the Seanad yesterday. It demonstrates the Government's commitment in regard to the new Department of the Environment and Local Government and its transferred responsibilities.

Many Deputies raised the issue of the Dublin Docklands Development Authority. Members will appreciate that I am not in a position to go into that in detail today. My predecessor, Deputy Dempsey – the current Minister for Education and Science – for whom I have great regard and who is viewed by all Members as a man of integrity, would have examined the matter in the exercise of his functions and in good faith would have brought to bear his policy, right and function in regard to any changes made.

Much imagination could be brought to the planning process in terms of policy. Something that struck me as Minister of State with responsibility for the Office of Public Works concerned our built environment. In parts of Dublin one can pick out clearly identifiable timeframes in our history which is something positive. I am not so sure that can be done elsewhere in Dublin or throughout the country, with perhaps just a few exceptions. I have a great interest in the built environment. I do not accept simplistic arguments that make general rules such as height is wrong or everything should be low. We cannot approach the built environment in that way but we must look at areas and then make judgment calls as to what we are trying to do.

It has been the Government's approach in the past five years to look for character when building new buildings. Buildings should speak well of and represent a community. A building should not be just a standard pro forma, prefabricated building and the same design no matter where it is in the country. I have a healthy abhorrence to such an approach. A building should speak of a community, its location and the environment in which it is located. That brings into play different issues which cannot be gathered together by having one rule of thumb across the board.

Deputy Penrose spent time on the issue of conflict of interest. I have been involved – so too has Deputy Penrose – in debates on the environmental issue. In that context, what is euphemistically called "the green environment" understates the environment. It is much more than that. However, I will use the terminology because it seems to convey a particular bent in regard to the environment. It is right to be serious about the environment and its demands and conflicts. I do not deny there are conflicts in terms of our built environment, the modernisation of the country, our economy and agriculture and all these issues require balanced decisions. Bringing Dúchas under the umbrella of my Department makes a body of expertise available to the State and the Department. We are not trying to just get a more centralised approach but a more streamlined approach to the area of policy so that we will have a clear vision in terms of how and what we want to deliver as an end product in the totality of the environment in this country.

Some Deputies used the analogy that a major incinerator to cope with waste management could be built in a special area of heritage or of conservation. I would be appalled if any local authority or combination of local authorities would knowingly want to site an incinerator in an area obvious to everyone as an important area of heritage. That does not make sense and I cannot see that sort of extreme case arising. I assure the House that I will be careful with regard to my functions and responsibilities under the various planning and waste management Acts and in regard to my functions under Dúchas. I will perhaps put in place a protocol within the Department to deal with this and I will consider the issue.

My concentration for the first few weeks has been on getting legislation through both Houses and I thank my Opposition colleagues for facilitating that. Now I will have to look at this area. It is not simple but I believe the thrust of the policies formulated are right. I will be mindful of what Deputies have said and of the potential areas of conflict that could arise. There are mature ways of dealing with this. One of the things I intend to do is to be open and transparent on these matters and I will listen to what Deputies have to say. The points made here this morning were fair and reasonable and they brought up issues with which we will want to deal when we get to the body of major legislation. We will tease out those in the context of the programme for Government.

This Bill is specific. It confirms the functions that exist under a former Minister in another Department. I simply want to make certain in law, particularly as the Dáil is going into recess, that there is no question mark about the role of Dúchas. As we know, it is involved in many different planning applications on an advice basis. I do not want to undermine that. In introducing this Bill speedily, my Department demonstrates its good faith. If I wanted to undermine matters, the last thing I would do would be to rush the Bill through the House. My approach is to copperfasten and confirm the status quo and not to undermine the approach of Dúchas.

I thank the Deputies for their contributions on Second Stage. I accept and understand the general areas of reservation on policy but in time the decision will be welcomed by all in the House as we move forward to face the challenges, particularly that of waste management. I will not get into the issues raised by Deputy McManus in regard to Wicklow. There is a criminal investigation under way there and I will wait until that is completed. I will not be nationally passive, mute or deaf when major issues arise.

Question put.

Tá

Ahern, Michael.Ahern, Noel.Andrews, Barry.Aylward, Liam.Brady, Johnny.Browne, John.Callanan, Joe.Carey, Pat.Carty, John.Cassidy, Donie.Collins, Michael.Connolly, Paudge.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian.Cregan, John.Cullen, Martin.Curran, John.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Fahey, Frank.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Fox, Mildred.Gallagher, Pat The Cope.Grealish, Noel.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Hoctor, Máire.

Jacob, Joe.Kelleher, Billy.Kelly, Peter.Killeen, Tony.Kirk, Seamus.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McEllistrim, Thomas.Moloney, John.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M. J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Donovan, Denis.O'Keeffe, Ned.O'Malley, Fiona.O'Malley, Tim.Power, Peter.Power, Seán.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Mary.Wilkinson, Ollie.Woods, Michael.

Níl

Broughan, Thomas P.Costello, Joe.Ferris, Martin.Gilmore, Eamon.Gogarty, Paul.Healy, Seamus.Lynch, Kathleen.McGrath, Finian.McManus, Liz.Morgan, Arthur.Ó Caoláin, Caoimhghín.

Ó Snodaigh, Aengus.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Rabbitte, Pat.Ryan, Seán.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Wall, Jack.

Tellers: Tá, Deputies Hanafin and S. Power; Níl, Deputies Gogarty and Stagg.

Question declared carried.