Environment (Miscellaneous Provisions) Bill 2011: Instruction to Committee

Minister for the Environment, Community and Local Government (Deputy Phil Hogan)

I move:

That, pursuant to Standing Order 177, Standing Order 131 is modified to permit an instruction to the Committee to which the Environment (Miscellaneous Provisions) Bill 2011 may be recommitted in respect of certain amendments, that it has power to make provision in the Bill to amend the placename provisions of the Local Government Act 2001 and to change the name of An Daingean to Daingean Uí Chúis in the Irish language and Dingle in the English language; to provide essential technical amendments to the Planning and Development Act 2000 including amendments to enable the commencement of certain provisions of the Planning and Development (Amendment) Act 2010 which further implement the Environmental Impact Assessment Directive and the Birds and Habitats Directives; to provide for a new costs rule to apply to court proceedings that concern breaches of certain environmental licences or other consents and to certain other proceedings relevant to environmental matters; to amend section 6(2A) of the Local Government Act 1998, as amended by the Local Government (Roads Functions) Act 2007, to allow payments from the Local Government Fund to the Minister for Transport, Tourism and Sport to be expended on all public roads (National, Regional and Local) and in the provision of public transport infrastructure; and to change the title of the Bill to take account of these provisions.

I am pleased to have the opportunity to bring forward amendments to the Environment (Miscellaneous Provisions) Bill 2011 which will address a number of important issues, mostly of a technical nature. I am conscious of the importance of the legislative process and, equally, the value of the time of the House. Therefore, given the miscellaneous nature of the Bill, it was deemed to be an appropriate manner in which to deal with a number of issues which required attention but which of themselves would not justify the initiation of separate legislation. I will outline for Members the nature of the amendments under consideration.

The amendments I propose to local government law will substitute new provisions for the existing code in respect of the changing of placenames which is set out in Part 18 of the Local Government Act 2001. Other than section 197, the remaining provisions of Part 18 have not been commenced, due principally to the difficulty of local government law and the Official Languages Act 2003 working in harmony. In the absence of commencement, the Local Government Act 1946, as amended, provides the relevant statutory framework.

The new Part 18 will restate large elements of the existing code but with significant changes and some new provisions. In an effort to streamline the legislation, it will provide that the placename provisions are contained within one section, as opposed to four sections of the 2001 Act. Any proposal adopted by a local authority to change a placename must specify the proposed name in Irish only or in English and in Irish. There will be an explicit requirement that any plebiscite held must be by way of secret ballot and all proposals will require a resolution adopted by half of the total members of the council.

The incompatibility between local government law and the Official Languages Act has been brought into sharp focus by the long running controversy over the name of An Daingean, or Dingle. The amendment will also seek to solve that problem in section 191 of the new Part 18.

Deputy Finian McGrath

Bring back Jack.

Deputy Phil Hogan

He failed to do it, but I am doing it. As Members might recall, the official name of Dingle was changed to An Daingean by the Placenames (Ceantair Ghaeltachta) Order of December 2004 made by the Minster for Community, Rural and Gaeltacht Affairs under the Official Languages Act 2003. As is well documented at this stage, the change in name has provoked an extended debate, with significant opposition locally based on a perceived lack of consultation prior to the making of the placenames order and the wish to preserve the name "Dingle" from a tourism perspective. A campaign was established to change the name of the town to Dingle-Daingean Uí Chúis under the change of placename provisions of the Local Government Act 1946, as amended, to which I referred. In September 2005, the Attorney General advised that the local government code may not be used to change the name of a place already subject to a placenames order, as in the case of An Daingean and this advice was notified to Kerry County Council, the sponsoring authority for such a procedure under local government law. Notwithstanding the advice, the council proceeded to hold a plebiscite under the Local Government Act 1946, as amended, to ascertain whether the majority of qualified electors in the town consented to an application being made to the Government for an order to change the name of An Daingean to Dingle Daingean Uí Chúis. The proposal put to the electorate was carried overwhelmingly. Kerry County Council then resolved to apply to the Government to make an order under section 77 of the Local Government Act 1946, to change the name to Dingle Daingean Uí Chúis. However, in view of the earlier advice of the Attorney General, it was not possible to accede to the council's request. Subsequent efforts by the previous Government to introduce legislation to deal with this issue were unsuccessful and I am, therefore, availing of the earliest possible legislative opportunity to undo the impact of the 2004 placenames order as it applies to An Daingean and to provide, in law, that the name of the town in the English language will be Dingle and in the Irish language will be Daingean Uí Chúis.

Of more general application, the proposals before the House today provide a more coherent, modern and streamlined set of procedures for changing placenames. They allow for greater recognition to be given to the Irish language generally when placename changes are proposed and they set responsibility for this function at local level, where it should properly reside.

The office of the Attorney General has advised that the insertion of a new part into the Environment (Miscellaneous Provisions) Bill, is urgently required to provide essential technical amendments to the Planning Acts. The amendments do not depart from the policy intent behind the amendments made by way of the Planning and Development (Amendment) Act 2010. The amendments in question will enable the commencement of certain provisions in the 2010 Planning Act, which further implement the environmental impact assessment directive and the birds and habitats directives. Certain amendments are required to settle EU complaints against Ireland and so must be urgently commenced to avoid incurring European Community fines.

I now wish to provide an overview of the planning amendments included in the new Part 4. Sections 8 and 9 amendments are standard definition sections. Section 10 is a technical amendment which restates the amendment to section 4 of the 2000 Planning Act, made by way of section 5 of the 2010 Planning Act, with required transitional provisions now included. Section 11 amends section 13 of the Planning Acts on foot of the transfer of the heritage function to the Minister for Arts, Heritage and the Gaeltacht and the role of that Minister in varying development plans. Section 12 is a consequential amendment to section 30 of the Planning Acts which is on foot of technical revision in this Bill to Part XAB of the Planning Acts. Section 13 amends section 50A of the Planning Acts to the effect that a court may now grant leave to apply for judicial review of planning applications, appeals, referrals and other matters where the applicant has a sufficient interest in the matter which is the subject of the application. Section 14 amends section 50B of the Planning Acts, which deals with legal costs in certain environmental matters. Sections 15, 16 and 17 are technical amendments to sections 57, 82 and 87 of the Planning Acts to clarify that exemptions given in the planning regulations do not apply to works to a protected structure or proposed protected structure and further, do not apply to works in architectural conservation areas or special planning control areas. Sections 18, 19 and 20 provide technical amendments to sections 130, 135 and 153 of the Planning Acts, respectively. Sections 21 and 22 provide technical amendments to sections 157 and 160 of the Planning Acts. These new sections have the same policy intent as sections 47 and 48 of the 2010 Planning Act but provide clearer legal text. Section 23 provides a technical amendment to section 170 of the Planning Acts to correctly reference Part X of the Planning Acts, which relates to Environmental Impact Assessment. Section 24 technically modifies the definition of "candidate special protection area". Sections 25 to 29 are amendments to Part XAB of the Planning Acts to reflect the transfer of responsibility for heritage functions to the Minister for Arts, Heritage and the Gaeltacht. Sections 30 to 33 technically amend sections 181A, 181B, 182A and 182C. Section 34 amends the Seventh Schedule of the Planning Acts to clarify the type of health infrastructural development that should be sent directly to An Bord Pleanála under the strategic consent process. Section 35 provides for the repeal of certain sections of the Planning and Development (Amendment) Act 2010, which required technical amendment through this Bill.

The motion also provides for the inclusion of a number of new amendments in the Bill which, on the advice of the Attorney General, are necessary before the State can ratify the Aarhus Convention. They include a provision for a new costs rule and further provisions to specify the type of court cases to which the new costs rule will apply. These provisions also seek to give clarity in advance to applicants on the level of legal costs they may incur when taking such cases. As Deputies will be aware, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, better known as the Aarhus Convention, was adopted in June 1998. The convention lays down a set of basic rules to promote citizens' involvement in environmental decision-making. Ireland is the only EU member state yet to ratify the convention and commitment is pledged in the programme for Government to complete ratification. With Ireland's Presidency of the European Union approaching in the first half of 2013, it is important that ratification takes place as soon as possible. The convention is linked to environmental legislation generally and is particularly relevant to decision-making on licensing issues such as waste licensing and air pollution licensing, for example. Owing to the relevance of the convention to a wide spectrum of environmental legislation, it is considered appropriate to include the necessary legislative provisions in the Environment (Miscellaneous Provisions) Bill.

A technical amendment to section 70 of the Environmental Protection Agency Act 1992 was agreed on Committee Stage to complete implementation of Article 5 and the Committee Stage amendments proposed today will complete implementation of a number of other articles of the convention.

The amendment proposed to Section 6(2A) of the Local Government Act 1998, as amended by the Local Government (Roads Functions) Act 2007, will allow the Minister for Transport, Tourism and Sport the power to expend moneys from the local government fund on all public roads -national, regional and local — and on the provision of public transport infrastructure. The local government fund was established under the Local Government Act 1998 and is financed from motor taxation receipts and an annual contribution from the Exchequer. Under section 3(2) of the Local Government Act 1998, as Minister for the Environment, Community and Local Government, I have responsibility for managing and controlling the fund. Responsibility for non-national roads transferred from my Department to the Department of Transport, Tourism and Sport in 2008. A protocol arrangement between the two Departments provided that funding for non-national roads would continue to be channelled on an annual basis from the local government fund to the Department of Transport, Tourism and Sport. This amendment will allow the Minister for Transport, Tourism and Sport discretion in the allocation of local government fund moneys within his responsibilities for national and non-national roads and the provision of public transport infrastructure. This will permit the effective targeting of investment to those areas of transport infrastructure of highest national priority.

I have set out for the House the reasons for these necessary amendments and I ask that this motion be passed to allow for a formal discussion of these amendments during Report Stage of this Bill.

Deputy Niall Collins

I propose to share my time with Deputy Finian McGrath.

Acting Chairman (Deputy Charlie McConalogue)

Is that agreed? Agreed.

Deputy Niall Collins

Fianna Fáil will not oppose this motion. I thank the Minister for his statement to the House. He has introduced a number of initiatives which had been discussed on Committee Stage.

The initiative regarding placenames is welcome. The Dingle situation was closely followed, especially by those living in the county. A similar but not such a high profile situation occurred in County Limerick with regard to the changing of the name of the village of Doon in east County Limerick. I welcome the clarification and the introduction of a clear set of guidelines as to how placenames may be altered if this is the will of the majority of the people.

I ask for clarification regarding some provisions outlined by the Minister:

Section 13 amends section 50A of the Planning Acts to the effect that a court may now grant leave to apply for judicial review of planning applications, appeals, referrals and other matters where the applicant has a sufficient interest in the matter which is the subject of the application.

I ask the Minister to expand on his definition of "sufficient interest".

On the readvertising, the Minister has provided for significant further information to be lodged as part of a planning application. People in an adjoining property can seek leave to apply to An Bord Pleanála to appeal a decision if they have not made a submission in the first instance to the planning authority. I ask the Minister to clarify that for us when he gets an opportunity.

Also, the Minister mentioned section 47. In regard to sections 21 and 22, these new sections have the same policy intent as sections 47 and 48 of the Planning Act but provide clearer legal text. My understanding of section 47 is that it is to do with sterilisation orders. Is that correct? The Minister might expand on that. According to the rural house guidelines, section 47 should be used in exceptional circumstances, but it is my experience in Limerick County Council that nearly every grant of planning permission for a single rural house is accompanied by a section 47 sterilisation order. The follow-on from that is that every grant of planning permission is an exceptional circumstance, and I would not like to think that is the case. We need to focus more, be it in this House or in committee, on section 47 and sterilisation orders because my experience is that local authorities are engaging in brinkmanship with applicants in that when deciding on a file, they tell them that if they sterilise the entire farm holding, they will give them planning permission and so on. That section is being abused to some extent.

The Minister mentioned health infrastructure developments. Is that to do with 100 bed facilities in that if an application is made for a facility in excess of 100 beds, it would have to go straight to An Bord Pleanála for a decision on planning permission rather than through the local authority? There may be merit in examining the possibility of making it apply to, say, a 50 or 60 bed facility because we have an under-supply of health facilities. I ask the Minister to clarify those issues when replying.

Deputy Finian McGrath

I thank Deputy Niall Collins for sharing time. I am grateful for the opportunity to speak on this Environmental (Miscellaneous Provisions) Bill 2011. I resent the way this legislation is being rushed through the House. Sixty five minutes is not enough time to debate it, and we all know the reason for that. The legislation as amended by the Government represents another major U-turn and broken promise.

I welcome the Minister, Deputy Hogan, and Deputy Kevin Humphreys to the Chamber because I have just received some information today that the Minister and the Deputy will be interested to hear. I do not know whether the Minister realises it but he is already making a name for himself across the north side of Dublin where he is called Poll Tax Phil with the introduction of these new charges. I thought he should know that he is now a brand name in that area.

On the legislation, I remind Deputies that the Minister of State, Deputy Lucinda Creighton, stated she would fight tooth and nail to stop the incinerator in Poolbeg, and Deputy Kevin Humphreys criticised the former Minister, John Gormley, for not doing enough in that regard. Deputy Kevin Humphreys has reneged on his commitments in the most cynical way, but what is worse is that the Taoiseach gave a written commitment to the people of Dublin South-East that he would stop this incinerator going ahead. I will return to that later as I have a copy of the letter before me. This is a Taoiseach who does not have a shred of credibility left in regard to promises. He promised to deliver many things to many communities knowing full well that he would have to turn his back on those people once they had voted for his party. That is a serious allegation.

The deletion of the incineration levy is yet another stunning U-turn by this Government. The coalition parties never ceased to criticise the previous Minister on this issue and yet it is now clear from the statements made by Covanta that had the provision for the incineration levy remained in the legislation, this oversized incinerator for the Poolbeg peninsula would not be going ahead. In an article published in The Sunday Business Post before the election, a representative for the company stated clearly that it would not proceed as long as this provision remained. The article also stated that the company had met Deputy Enda Kenny and Deputy Ruairí Quinn. The Covanta aide said they were happy with the meeting. One wonders what was said by the Taoiseach at that meeting.

The more one reads about this project and the capitulation of the coalition, the more suspicious one becomes. It is a project that has been shrouded in secrecy with no democratic accountability. Only recently the Minister published the Hennessy report on the financial viability of the plant but with large sections of the report censored. So much for the transparency the Government talked about in the past. The report shows that this is a mad contract which will cost the taxpayer dearly if Covanta does not get sufficient waste. Have we learned nothing? We only have to look at the mess of the M3 public private partnership and the Limerick tunnel, where the lack of cars means major penalties for the State. Is it not extraordinary that there has been no democratic scrutiny of this contract? Not a single councillor, TD or Minister had seen the contract. That is why the senior counsel, John Hennessy, asked the then Minister, John Gormley, to examine the contract. I understand that even Mr. Hennessy had considerable difficulty getting his hands on the contract.

The Government has chosen to ignore the Hennessy report. It has also chosen to ignore the international review on waste management which argued cogently for the imposition of an incineration levy to drive waste higher up the waste hierarchy and get the very best rates of recycling. Why has the Minister decided to dump the international review drawn up by international experts? At a time when resources are growing scarce, when peak oil is a reality and when we have to reduce our carbon emissions substantially, it makes no sense at all to opt for an incinerator on this scale. In order for it to be profitable it will have to draw waste from every part of the island and perhaps beyond. Is that sustainable? This is a national issue. It is not an issue specific to one constituency. That is the reason I raise it in the House today.

There are other aspects of this deal which deserve closer attention. Mr. PJ Rudden is often quoted in the media as a waste expert who favours the incinerator. None of these newspaper reports state that Mr. Rudden's company has made €25 million in consultancy fees from the project. Is it any wonder he is in favour of it?

The other major question is the reason Dublin City Council decided to proceed with the preliminary contract during the 2007 election campaign and why it proceeded to sign the contract when the Minister warned it not to do so. A lot would come out in the wash if there was an inquiry on this matter but with the way this Government has pandered to the wishes of big business, it is unlikely that we will get such an inquiry.

I will deal with some of the issues I mentioned earlier in regard to broken promises. The website of the Minister of State, Deputy Creighton, on 13 July 2010, stated:

Fine Gael remains committed to stopping the proposed incinerator in Poolbeg. Lucinda recently sought assurances from Fine Gael party leader Enda Kenny that the party would oppose the construction of the proposed incinerator if elected to government. Deputy Kenny unequivocally confirmed that Fine Gael would continue to fight tooth and nail to oppose the incinerator.

She further stated: "Lucinda again calls on Minister John Gormley to stand by his promises to the people of Dublin South East and scrap the incinerator for once and for all". That is another example of a broken promise.

There are other aspects of this deal which deserve closer attention. Mr. Rudden is often quoted in the media as being a waste expert who favours incineration. I mentioned the payment of €25 million before a single brick is laid.

It is also important to address the claim of legal problems as this is an excuse local representatives will use mostly to justify their support for the Bill. On Committee Stage the Minister made the entirely disingenuous claim that because of legal constraints, he had no option other than to remove section 7 which provided for the incineration levy. He claimed that was because it was incompatible with the revised waste framework directive which came into force early this year. However, if there was an incompatibility, it would set a higher level than the incineration levy. Similarly, a levy on incinerators that qualify as recovery facilities can be set at a lower level than that for incinerators classed as disposal facilities. These are simple matters to address and it is clear the Minister's decision to scrap the levy is not down to any legal difficulties. The Irish Waste Management Association is in favour of levies and against the Poolbeg incinerator. While the industry is crying out for a financial instrument to encourage recycling, the Minister is ignoring it in favour of giving the green light to a facility that nobody wants other than Dublin City Council. It is important that we raise these issues. I welcome the opportunity to discuss this very important legislation. I hope the Minister will respond to some of the key points I raised.

Deputy Brian Stanley

I want to clarify a few points with the Minister so we will be clear on what is happening. Given the proposed changes in respect of placenames, will it be the case, based on the Minister's legal advice, that a town that wants to change its name, be to Dingle, Daingean or Daingean Uí Chúis, for example, can do so without recourse to the Minister?

I understand from the amendments that have been made that all moneys collected through road tax will now be used for local, county, regional and national routes and public transport infrastructure. Is this the case?

On an earlier Stage, I referred to the packaging and labelling of fuel for sale. I do not see any amendment in this regard. Has anything been done thus far to exempt firewood and peat?

I have an amendment on incineration that I understand I will have an opportunity to discuss on Report Stage. I will not reiterate everything said by the previous Deputy; suffice it to say we are very concerned about the Poolbeg incinerator, particularly the terms of the contract. From speaking to members of Dublin City Council — Deputy Kevin Humphreys is a former Dublin city councillor — I have learned that none has seen a copy of the contract. Previous speakers stated nobody wants the incinerator only Dublin City Council but I regard the council as its 52 members. That they have not been party to the decision is very unfortunate.

The major concern is that, as the volume of waste is reduced over time, as I hope will be the case, there will not be enough waste to fill the hungry beast that is the incinerator. The recession has already resulted in a reduction. Given that we do not know the terms of the contract, will the taxpayer be held liable for any shortfall or loss to the private company running the incinerator? Will the Minister address these questions?

Deputy Joe Higgins

Le cead an Tí, ba mhaith liom mo chuid ama a roinnt leis an Teachta Catherine Murphy.

Fáiltím go mór roimh socrú na conspóide maidir leis an ainm caoi ar Dhaingean Uí Chúis. Caithfidh mé a rá gur chuir an chonspóid áirithe iontas orm ón tús. Bhí sé amaideach ón chéad lá aon athrú a dhéanamh ins an slí ina hainmníodh Daingean Uí Chúis. Ariamh ó mo chuimhne féin bhí an t-ainm Béarla agus an t-ainm Gaoluinne á úsáid againn i gCorca Dhuibhne. Glaomísne Dingle agus Daingean Uí Chúis ar an mbaile agus ní raibh fadhb ar bith faoi sin. Ar na comharthaí bóthair mórthimpeall an cheantair, bhí an Béarla agus an Ghaoluinn luaite. Ar ndóigh, nuair a hathraíodh an dlí agus an Daingean amháin a chur isteach, níor chuir sé ionadh ar bith orm go raibh trioblóid faoi.

Is baile turasóireachta é Daingean Uí Chúis. Mar is eol dúinn, tagann cuairteoirí ó chian is ó chóngar de bharr áilleacht na háite. Cuimhnímis go seasann Daingean Uí Chúis mar gheata go dtí iarthar Chorcha Dhuibhne, go dtí an Ghaeltacht féin, go dtí an chósta agus na cnoic agus go dtí an áilleacht ins an nGaeltacht. Tá sé mar gheata chuig Dún Chaoin ina bhfuil na báid ag dul amach go dtí na Blascaodaí. Tagann na mílte duine ó mhórthimpeall an domhain go dtí an Daingean agus a chomharsanacht agus tá na céadta de lucht oibre na háite ag brath ar an turasóireacht agus ar na cuaiteoirí úd.

Bhí sé míréasúnta amach is amach dlí a leagadh síos nach bhféadfaí Dingle a chur ar na comharthaí bóthair. Ní dhearna sé aon chiall ar bith. Is tír dátheangach an tír seo agus tá súil agam go mbeidh sé dátheangach ariamh.

Cé gurb é an Béarla teanga labhartha an tromlaigh tá sé an-thábhachtach go mbeadh an Ghaoluinn mar theanga láidir, chomh maith leis an gcultúr agus gach a bhaineann leis. Níl aon dabht ach go bhfuil brú ar an nGaoluinn agus ar an nGaeltacht. Tá an géarchéim eacnamaíochta ag cur an-bhrú orainn i láthair na huaire, le daoine óga á mbrú amach as a gcomharsanacht féin mar nach bhfuil aon obair ann dóibh. Dá bhrí sin tá brú ar an teanga agus ar an gcultúr, gan trácht ar an mbrú atá ag teacht ó na meáin agus ó fhórsaí eile.

Tá sé tábhachtach an Ghaoluinn a caomhnú ach ní féidir é sin a dhéanamh le héigeandáil. Dá bhrí sin, is socrú ciallmhar é seo a theastaigh ó fhormhór mór mhuintir na háite. Nuair a bhí an vóta acu bhí tromlach ollmhór ag lorg go mbeadh an dá ainm traidisiúnta ar an mbaile. Dá bhrí sin, níl anseo ach an rud ceart agus caoi a dhéanamh.

Ba mhaith liom ceist a cur ar an Aire mar gheall ar an phróiséas anois. Cad a tharlóidh tar éis an lae inniu maidir leis an gcinneadh seo a chur i bhfeidhm? Cén saghas fráma nó próiséas ama atá i gceist? Caithfidh mé imeacht go dtí cruinniú sular labhróidh an t-Aire ach ba mhaith liom go mbeadh soiléireacht ag muintir Chorcha Dhuibhne agus an Daingin cén saghas ama atá i gceist maidir leis an rud seo a chríochnú agus na comharthaí bóthair a chur thar n-ais mar is caoi sa chomharsanacht.

Deputy Catherine Murphy

Can I put it on record how unsatisfactory it is to be debating this motion today? We received the motion this morning and were looking for it all day yesterday. We are being asked to take at face value some of the proposals contained therein. There was certainly not enough time to examine the issues in detail. I would like to have had the opportunity today to discuss the conflict that might arise between the Official Languages Act and the new section 19, for example, but I do not feel I have time. Although our job is to hold the Government to account, we are not allowed to do so by virtue of the way business such as this is being handled. It is most unsatisfactory. I do not doubt the exact same points would have been made by the Minister if he were on this side of the House. It is not acceptable.

I have a question on the changes proposed to the Official Languages Act. We can all point to conflicts in our constituencies. The local authority in Naas uses An Nás whereas Nás an Ríogh is widely used. There are differences in name signs. I hope the Minister will respond to this and that a petition system will be properly provided for to rationalise this. I also hope there will not be a conflict between this and the Official Languages Act.

Deputy Luke ‘Ming' Flanagan made the point that he cannot participate in this debate because he is attending a meeting of the committee with responsibility for health. He had a conflict between Roscommon County Hospital and bogs. He wanted to attend this debate and make that point.