Aircraft Noise (Dublin Airport) Regulation Bill 2018: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister for Transport, Tourism and Sport (Deputy Shane Ross)

I thank the House for the opportunity to introduce the Bill, the main purpose of which is to implement EU Regulation 598/2014, which came into effect in June 2016. This regulation sets out the rules and procedures for managing and monitoring the impact of aircraft at all major European Union airports. The approach set out in the regulation is in line with the so-called "balanced approach" to aircraft noise mitigation, which has been developed by the United Nation's International Civil Aviation Organisation, ICAO. This Bill follows the regulation in its entirety and, therefore, represents best international practice in aircraft noise management at airports, as endorsed by the UN and the EU.

It may seem unusual that I am implementing this regulation through primary legislation, even though an EU regulation has direct effect in member states. Typically, I would implement such a regulation by way of secondary legislation, through a statutory instrument. However, the circumstances surrounding this regulation are atypical. There has been extensive policy and legal examination of how best to put in place a noise regulation regime which, on the one hand, fully accords with EU Regulation 598/2014 and, on the other hand, is wholly aligned with our existing planning and development and environmental frameworks. The outcome of these deliberations was the conclusion that the only certain way to achieve this was by primary legislation. I have taken much criticism for delaying or not moving fast enough on this issue. While I understand and share the frustration underlying some of this criticism, some of it also betrays an under-appreciation of the complexity of the issues that had to be worked through. I am glad to be before this House to present this Bill, and I am glad that the Oireachtas will have the opportunity to examine, discuss, come to understand and, ultimately, I am sure, support it as the best available option which serves the national interest.

I propose to bring the House through the key elements of the Bill and explain the policy rationale underpinning it. As a first step, EU Regulation 598/2014 requires all member states with a major airport to designate a competent authority as the independent noise regulator. The competent authority is responsible under the regulation for monitoring the noise situation at a designated airport.

The competent authority also decides on the appropriate noise mitigation measures that must be put in place by airport operators, up to and including operating restrictions to mitigate an identified noise problem.

Under the Bill, Fingal County Council is designated as the independent noise regulator for the purposes of EU Regulation No. 598/2014. I believe, given the complex issues we are dealing with, that the council is best placed to undertake the role as noise regulator for Dublin Airport.

The extensive policy and legal examination of the regulation which I mentioned earlier made it clear that there is a significant overlap between the EU regulation, the planning process and environmental protection requirements. In that respect, the council, with its extensive experience in planning and development, land use planning and management, appropriate assessment, environmental impact assessment and managing large public consultations, is well suited for the job. That is why I have defended the council in the House when others have questioned its suitability for the job. I have also defended it against what I consider baseless accusations of conflict of interest. Fingal is not conflicted. I believe in the effectiveness of local government by local authorities. I believe that giving Fingal County Council additional legal powers to regulate noise at Dublin Airport makes perfect sense, building on its functions relating to noise under the environmental noise directive and the planning code generally. It is joined-up public administration. It is empowering local government, allowing a local authority to make local decisions. It is in the best interest of providing a readily accessible, fully transparent and locally accountable process for managing and monitoring noise at the airport.

Fingal County Council is one of the largest local authorities in the country. It has a highly skilled staff complement. It has existing relevant expertise and it has the wherewithal to develop and bring in more expertise as necessary. I reject the notion that it is not a good fit and I reject the idea that local authorities can be conflicted in overseeing and providing local services and acting in a regulatory role.

All local authorities have a wide range of statutory-based regulatory functions, including environmental quality control, planning permissions, development planning, public lighting, road building and road maintenance. They have enforcement roles as well, and they have powers to charge taxes and fees, including property tax, commercial rates and planning related fees. The fee raising and charging powers are to ensure that the statutory and other public services provided by local authorities are funded. It is not a commercial enterprise and this is not about turning a profit.

Local authorities charge what is needed to cover service costs, and in the context of its new noise regulation functions, Fingal will do the same. Fingal County Council has a track record of performing the role of competent authority in areas such as planning and environment and does so in an independent manner. Its decisions are open and transparent and are subject to appeal and judicial review. This Bill is not breaking any new ground in this respect.

It is clear that the proposal relating to the implementation of EU Regulation No. 598/2014 is wholly aligned with the long-established multi-functional role played by local authorities. Moreover, any decision will be subject to an independent appeals process. I am confident when the Bill is examined more closely, it will become clear to all that given the close interrelationship with the Planning and Development Act and the current responsibilities held by Fingal County Council under the environmental noise directive, that the council is the most suitable body to take on the role as noise regulator for Dublin Airport.

I will be clear about the resourcing of this new function, which is a legitimate concern that has been expressed by a number of colleagues. It is true that Fingal County Council will have to build up capacity to fully undertake the role as noise regulator. It will have to procure noise expertise to assist in the application of the balanced approach and the decision-making process. It is building from a solid base with the existing in-house expertise and capacity to run a process, including the public consultation as prescribed in the Bill. Funding will be made available to allow it to do this. It is intended that any costs will be met by a levy that the competent authority will impose on the DAA. The DAA will be liable to pay this levy on a monthly, biannual or annual basis, as determined by the competent authority. It will be based on costs incurred by the council, or reasonably expected to occur, in the performance of its functions as the competent authority.

With regard to how the process set out in the Bill is intended to work, Fingal County Council has responsibility for noise assessments under the 2002 environmental noise directive. This Bill, in accordance with EU Regulation No. 598/2014, is an extension of that process. The Bill sets out the procedure to be followed where a noise problem is identified at the airport following a noise assessment undertaken in line with the directive. This entails undertaking an analysis of the various measures available to reduce noise. There are four high level options: noise reduction at source; land use planning and management; noise abatement operational procedures; and operating restrictions, as a last resort. The goal is to address any noise problem in the most effective manner.

This analytical framework is called the balanced approach and it is set out in regulation No. 598. It has been developed at the UN's ICAO as the best way forward to ensure that airports can develop in a more sustainable way and that air connectivity can continue to be improved as a key enabler of international trade and in the general interest of global access. What is proposed in this Bill, therefore, is an airport noise regulatory regime that has been developed as international best practice and adopted as EU law.

Having completed its analysis under the balanced approach, the noise regulator will come to a draft regulatory decision regarding the noise mitigation measures and operating restrictions, if any, to be introduced at Dublin Airport. The regulator will publish this draft decision and invite submissions and observations to be made within a period of 14 weeks. This open consultation is an important aspect of the Bill. The draft decision will be accompanied by a report detailing how the decision was reached which will include a non-technical summary. This will ensure any individual will be in a position to input into the process and that the consultation will not be limited to those with technical expertise. Once the public consultation process is complete, and having considered any submissions or observations received, the noise regulator will make a final decision. The regulator will specify a timeframe for the introduction of such measures and in the case of operating restrictions, will provide at least six months notice.

The Bill also inserts new sections into the Planning and Development Act, to put in place a framework for the application of regulation No. 598 requirements within the planning process. The purpose of this is twofold. Provision is made for the noise regulator to input into decisions of the planning authority in respect of planning applications for proposed development that may impact on noise at the airport. The Bill also provides for the ability of the airport authority to apply to the planning authority to review and amend any current operating restrictions in place at the airport as conditioned under a previous planning consent.

In both these circumstances, the planning authority is not permitted to make a final decision on the planning application until the noise regulator has completed its work. This work will involve assessing the planning application using the balanced approach framework and consulting with the planning authority and any other party it deems necessary. In line with normal Regulation No. 598 procedures, the noise regulator will also have to undertake a 14-week public consultation on proposed measures. Once the noise regulator notifies the planning authority of its regulatory decision, the planning authority will incorporate that regulatory decision, by way of planning conditions, into its final decision on the planning application.

It is well documented that DAA views the operating restrictions attached to the permission for the second runway as overly restrictive. On completion of construction of the second runway, those restrictions will immediately impact and reduce current operations at the airport. The restrictions were decided upon in advance of EU Regulation No. 598/2014 coming into force, and, therefore, it makes sense that they are now reviewed in light of the balanced approach process, in advance of their introduction. The Bill does not pre-empt any decision that may be made by the noise regulator on the appropriateness of these restrictions. However, it allows the noise regulator to examine all noise mitigation measures available, in line with the balanced approach, to mitigate any noise problem that may arise from the operation of the second runway.

Once it examines any application to review the operating restrictions attached to the second runway project, the noise regulator will come to a determination. It may decide that no change is needed to the current operating restrictions. It may decide that more onerous restrictions are required, or it may determine that a new set of noise abatement measures entirely are more appropriate. That will be a matter for the new regulator to decide, based on expert technical analysis, reference to best international practice, emerging technology and extensive public consultation.

The Bill sets out, in a detailed way, how the noise regulation is to dovetail with the planning process. This is important because it means that airport use and airport development will be subject to a more robust, interconnected regulatory regime that tests development proposals against planning and development benchmarks and now noise impact and noise management benchmarks.

To that end, the Bill provides that the planning authority must first consult with the noise regulator in regard to development at the airport that may have a noise dimension. This will facilitate the regulator in applying the balanced approach before reaching a decision on the application of any operating restrictions, as may be needed, to be incorporated into the final planning decision. Likewise, where there is a planning application to review current operating restrictions, the regulator will decide upon the most appropriate measures in line with EU Regulation No. 598/2014.

A further requirement of EU Regulation No. 598/2014 is the designation of an appeals body to provide for an appeals mechanism to a decision of the noise regulator. To provide for alignment with the Planning and Development Act, the Bill designates An Bord Pleanála as the independent appeals body. This decision will ensure cohesion in any future planning decisions on development at Dublin Airport. All regulatory decisions of the noise regulator are subject to appeal to An Bord Pleanála. Where an appeal to a regulatory decision of the noise regulator is made to the board, it will have 18 weeks to make a decision, with provision to extend this timeline if required. Provision has also been made for the board to, at its discretion, undertake a 14-week public consultation process. This may happen where the board is of the view that there are alternative noise mitigation measures or operating restrictions, other than those proposed by the noise regulator, which may be implemented at the airport and were not consulted on previously. In assessing any such appeal, the board will gain all of the powers of the noise regulator and must adopt the balanced approach in consideration of the measures to be imposed. Where a noise regulatory decision is made as part of an overall planning decision, that can also be appealed to An Bord Pleanála as part of an appeal of the planning decision. Where a planning decision into which the noise regulator has had input is appealed to the board, the board will again assume all the powers of the noise regulator. It will have the power to decide on the most appropriate noise mitigation measures and operating restrictions, if any, that are to be introduced at Dublin Airport and set out the timelines for their implementation.

Another aspect of the Bill relates to monitoring and enforcement powers. There will be an onus on the airport authority to ensure that it adheres to any decision of the noise regulator and that any measures are implemented effectively. The airport authority will be required to produce an annual compliance report, to include a non-technical summary. This report will be published by the regulator. The regulator will monitor compliance and has the power to direct the airport authority and airport users, as necessary, to comply with any noise mitigation measures and operating restrictions with recourse to the High Court for non-compliance.

The Bill also outlines other consequential amendments to the Planning and Development Act. One such amendment is the declassification of airport development as strategic infrastructure development for the purposes of planning applications. This measure means that an application for planning permission for development at airports will be made to the local authority in the first instance, with provision for appeal to An Bord Pleanála. This amendment is necessary, as it would not be possible for An Bord Pleanála to be both the deciding body and the appeals body for development at the airport, which will have a significant noise impact.

Ultimately, EU Regulation No. 598/2014 is intended to ensure that major European airports are developed in a sustainable manner and that they are subject to oversight and scrutiny not just in terms of planning and environmental laws but, in the case of airports specifically, noise levels. This Bill provides for this. It sets out a robust, rigorous and transparent noise regulation regime that will ensure that Dublin Airport can grow, but only in a way that is responsive to the impact of noise caused by aircraft. This means it will have to comply with regulatory decisions on how aircraft approach and depart the airport, for example, on how and when they can move around the airport, on the type of aircraft and engines preferred. All of these factors now form part of the decision-making regarding the long-term development of Dublin Airport. It is a much more comprehensive management and monitoring framework than currently exists.

While I fully understand that there are local concerns, I am equally confident that this new regime will come to be seen as a positive step forward. The Bill, therefore, sets out a noise regulation regime that has not been in place before, allowing for full stakeholder engagement. It also sets out an independent appeals process which will provide certainty to stakeholders and a framework for managing the process in a fair and balanced way. In essence, the legislation provides for a structured approach to assessing and addressing aircraft noise at Dublin Airport with the objective of facilitating airport development and expansion in a way that minimises, as far as practicable, the noise impact of that expansion.

I commend the Bill to the House.

Deputy Robert Troy

I will share time with Deputy Darragh O'Brien.

For the past four years, the Government has been aware of the requirement for an independent noise regulator for Dublin Airport following the passage of EU Regulation 598/2014, which sets out a noise mitigation and abatement framework for all European airports above a particular size. Ireland is one of two countries yet to fulfil this requirement, which is vital to the functioning of Dublin Airport. Given the manner in which the Government has approached the establishment of an independent noise regulator, which has been characterised by lengthy delays interspersed by gross missteps on the part of the Minister, the end result has not been pretty. We are faced with the choice of appointing a body about which serious concerns have been raised regarding its capabilities and independence or to further delay this vital infrastructure and thus jeopardise Ireland's economic future. The Minister has left us between a rock and a hard place. Reluctantly, Fianna Fáil will support this Bill but we propose to table amendments to it. I acknowledge that the Minister has agreed to hold Committee Stage in the new year, thereby giving all Members an opportunity to work on robust amendments.

Fianna Fáil will support this Bill in recognition of the implications that opposing it would have for Dublin Airport's proposed second runway, which was first granted planning permission in 2007 by Fingal County Council. Work has commenced on this runway with a view to it being operational in 2021. This is imperative in light of the economic uncertainty presented by Brexit, which requires Ireland to strengthen its links with existing trading partners and to develop trade with new partners. Our airports not only connect us with large trading partners such as the United Kingdom and the United States, they also foster connections with new and growing markets. In the past year, Dublin Airport announced new direct services to Beijing and Hong Kong. Amidst the growing uncertainty of Brexit, the capacity of our airports to offer new direct services and increase the country's connectivity is of great comfort to businesses and citizens concerned about their economic futures.

The funding is in place and construction has commenced on the vital infrastructure but an independent noise regulator has yet to be appointed. The delay in bringing forth this legislation lies with the Minister. The holdup relates to conditions attached to the planning permission for the second runway following an appeal to An Bord Pleanála, which resulted in 31 restrictions being added to the planning permission, two of which would limit flight arrivals and departures at Dublin Airport to 65 between 11 p.m. and 7 a.m. and permit no night time flights on the new runway. To put this into perspective, currently at night time, 99 flights arrive and depart from Dublin Airport, which means night time flight movement would be reduced by approximately one third. It is estimated by the DAA that these restrictions, if applied, would result in the loss of more than 14,000 jobs. It is the view of Dublin Airport that these restrictions are not fit for purpose and that the DAA needs to appeal them before the second runway is scheduled to be completed. However, for this appeal to proceed, there must be an independent noise regulator in place because the noise regulator will serve as the sole competent authority under EU Regulation No. 598/2014, essentially serving as the independent expert body responsible for monitoring existing levels of noise and evaluation the possible impacts of proposed changes. On the face of it, this sounds logical.

Monitoring noise levels and developing mitigating measures are a precise and exact science and it makes sense to develop an evidence driven regime that will be administered by experts. If this is done correctly, the new regime can carve a fair and effective path that does not compromise the well-being and rights of the citizens in pursuit of the goal of providing additional flights and connectivity.

I acknowledge the presence in the Visitors Gallery tonight of people who are affected by movement in the airport and the work they have done in engaging with Members of the Oireachtas and putting their case forward. They have been reasonable and sensible in their approach over the past number of years, but they have been left in limbo because of the Minister's inaction.

I take issue with the appointment of Fingal County Council as the competent authority under this legislation. Any discussion of this appointment would be incomplete without reference to how we arrived here. Following the passing of the EU regulation, it took more than two years for the Minister and his predecessor to identify a suitable body to take on the role of regulator for this regime. We believed that was finally over when the current Minister appointed the Irish Aviation Authority, IAA, in September 2016, more than 28 months ago. Following that announcement, which was welcomed by many of the residents and the DAA, the IAA duly commenced preparation to take up the role, diligently building the expertise it would need to do it. The Department set about drafting a statutory instrument that it maintained would be necessary to give effect to the noise regulator. We waited for the statutory instrument to materialise. We were then informed that primary legislation would be required. We waited again. Since 2016, I have raised this issue 25 times with the Minister and on each occasion he confirmed that work was well under way to make the IAA the statutory competent independent body.

The rug was pulled from under us when the Minister announced that his legal advice stated that the IAA was not an appropriate body to be appointed and that he would appoint Fingal County Council. The Minister outlined in his contribution why the council was the right and best choice. If it was the right and best choice, why was it not his first choice? Why did he waste so many years examining every other option before ultimately deciding on Fingal County Council? His decision has provoked widespread anguish among the local community, which has genuine concerns about the ability of the council to be an independent adjudicator of an airport that is its single largest rate payer and that generates 8% of its income. We have been waiting 12 months to reach this position today. In fact, it is more than 12 months. The Minister is not meeting the targets he set last February, which is regrettable. The Minister is at fault for spending so much of his time during the year pursuing legislation that is under the remit of the Department of Justice and Equality when he should have been pursuing the legislation under the remit of his Department.

On foot of a freedom of information request, I received a reply that Mr. Fintan Towey, assistant secretary in the Department, sent on 16 February 2018 to an official in Fingal County Council. He said that a lot of work had to be done of the draft heads of the legislation. He said the Department had an internal issue around resourcing to resolve which was complicating things but which he hoped to unblock soon. Was the Minister aware there were resource issues in his Department in respect of drafting the necessary legislation? If so, what did he do to ensure they were resolved?

Furthermore, there are concerns about the level of competence Fingal County Council has with regard to monitoring noise levels and developing a meaningful noise abatement regime. In the European context, it is highly unusual for a county council to be the competent authority in the operation of this regulation. In almost every other country, the Minister with responsibility for transport or the local aviation agency plays this role. Ireland will be one of only three countries in Europe where a local authority does it. Without seeking to cast aspersions on the integrity of Fingal County Council, I share the concerns of the residents. EU Regulation No. 598/2014 clearly states that the body appointed as the competent authority shall be independent of any organisation which could be affected by noise-related action. Given the significant reliance of Fingal County Council on Dublin Airport for rates and broader revenue, there are questions about whether the county council meets this requirement. If one follows the logic the Minister used against the appointment of the IAA, which he said was unsuitable by virtue of the financial benefit it derived from aircraft used in Irish airspace, the appointment of Fingal County Council is quite strange.

This potential conflict of interest is a matter of great concern for me and my party. I call on the Minister to ensure that the new noise regulator is functionally totally separate from Fingal County Council. That is the least the Minister owes the residents of Fingal. At a minimum, the Minister should examine the possibility of placing the new regulator in a separate building from that of the county council as well as allowing the new body to operate under a different name. It is also incumbent on him to provide greater detail about how citizens with noise complaints can raise them with the noise regulator and the process through which the complaints will be handled.

Furthermore, when one considers the magnitude of this role, it is vital that the council be equipped to perform it well. This will mean hiring a significant number of additional staff with expertise in the field. Among other areas, it will be necessary to have experts in runway operation, runway techniques, aircraft noise and performance, methods of noise abatement and airlines operation. Perhaps the Minister will outline how this will be achieved, particularly given the tight timelines under which he is operating. Will there be a formal mechanism in place for the noise regulator to collaborate with other experts in the field, such as the IAA or the European Aviation Agency? Ultimately, these are questions that will define how well the independent noise regulator will be able to do its job.

I have queries on a number of strategic observations. The Bill does not direct the competent authority to take account of the worldwide ICAO regulations concerning airport development known as the balanced approach. The EU regulation on noise is entirely based on this. The balanced approach is central and critical as it ensures that all stakeholders have an input. This is the normal approach worldwide. The Bill uses the term "balanced approach" but it should direct Fingal County Council to implement the approach and not just refer to it. It is interesting that there is far more emphasis on the habitats directive than on the EU regulation on noise with regard to the balanced approach.

Will Fingal County Council's development plan be amended to ensure dual and independent runway operations? Will that plan foresee an increase in aircraft movements, especially when new technology becomes available that enables different types of aircraft approaches such as satellite guided approaches, the ground-based augmentation system, GBAS? Does Fingal County Council have expertise in the runway operations, runway techniques, aircraft noise monitoring, aircraft and engine performance, aircraft noise abatement and other areas I mentioned, which is essential for performing the function of the competent authority for aircraft noise? If not, how will it secure this expertise, from whom and what is the estimated cost?

Exclusive competence does not apply to the operating restrictions relating to safety imposed by the Irish Aviation Authority. Will the Minister please clarify this?

What control costs are placed on the competent authority and how is it controlled? It appears to be a blank cheque. Is there an appeal on costs or can this be controlled by some other process? I have a number of other questions but I must give way to my colleague Deputy O'Brien. I acknowledge that the Minister will facilitate what I hope will be robust further scrutiny of the Bill on Committee Stage and that he will take on board the concerns of the Members on this side of the House when we reach Committee Stage in the new year.

Deputy Darragh O'Brien

I thank my colleague Deputy Troy for sharing time.

I have attended briefings with the Minister's officials and I have attended the Oireachtas Joint Committee on Transport, Tourism and Sport. I have also spoken to the Minister directly on this issue. I have lived beside the airport my whole life and I am aware of the importance of the airport, not only for our local economic development but also for the national economic development: some 20,000 direct jobs, more than 117,000 indirect jobs and €8.3 billion of value to the economy. It is a really important piece of infrastructure. As my colleague has outlined, it beggars belief that we have waited this long for this Bill.

I acknowledge the presence in the Visitors Gallery of many residents from communities like my own that will be affected, and who have lived beside the airport for all this time near the existing runway. All of these communities have acted responsibly and have been reasonable. Nobody is saying that the second parallel runway should not be built. It is nothing like that. If one positive thing comes from this legislation it is that at last it should deal with some of the outstanding issues, namely the voluntary sales scheme operated by the Dublin Airport Authority, which leaves a lot to be desired especially in the St. Margaret's and the Cloghran areas. Another outstanding issue is the insufficient noise insulation scheme that does not cover enough houses and does not look at the flight path near the new runway.

As my party spokesman has said, it is very important to note that the Bill requires major amendment. I am still not convinced at all that we cannot use the Irish Aviation Authority, IAA, or the Commission for Aviation Regulation, CAR, as the regulator. I still have grave concerns about the competency within Fingal County Council to do this. This is in no way to besmirch that council. I know that it is an excellent local authority, as the Minister has said. I work with the council every day of the week, but the Minister reasoned in his statement that: "It is empowering local government, allowing a local authority to make local decisions." This issue is not just about local decisions and that assertion is absolutely incorrect. This is about the establishment of a new noise regulator for an international airport through which 30 million passengers will travel this year. It is a busy airport that will grow further.

Since my days in Fingal County Council in 2004 I have consistently supported the development of the airport, but a responsible development that makes sure the airport operates a good neighbour policy. This is all that people want. The residents want to be listened to but they and I also want to ensure that when the DAA moves forward and looks to set aside or amend the current planning conditions, especially around the night flights, that we have someone who is independent to look at that. It is important that people's quality of life in Dublin Fingal, where I live and where I have spent my whole life, is protected and is balanced with the future economic growth of the airport. We know how important it is for jobs. Thousands of us who live in the community, including my friends and neighbours, work in the airport or derive their income from the airport. This is a good thing.

Nobody in any of the communities is saying stop and do no more. That is not what this is about. It is about a fair, open and transparent process. It is not about setting up a regulator simply to look at the planning conditions. This must be a noise regulator into the future, for the future development. Whatever we do now has to stand the test of time. This is why I welcome the fact that my party colleague and Deputy Clare Daly are ensuring that we are not rushing into Committee Stage. This is not what I want to do. Through my own party spokesman I intend that we would table a series of significant amendments to what has been produced here. It is gravely disappointing that we have waited this long, over two years, for this. I believe that there are better authorities and organisations in the State that could be beefed up, such as the CAR and the IAA. I am also aware of the need to allow future economic growth, but it has to be balanced with a good neighbour policy with our communities in north Dublin. They need to be listened to and they need to be absolutely clear that whatever process is used into the future is independent and transparent.

Deputy Imelda Munster

I welcome the opportunity to speak on this Bill. Dublin Airport is experiencing something of a boom currently, with record passenger numbers year on year. A second runway is due to be in operation by the end of 2021. While a second runway is needed at this stage, it is important that the needs of local people are respected and that flight and noise limits are imposed to ensure that their quality of life is maintained. The Minister is also looking for a third, privately run terminal to be built. He seems, however, to be on his own on that one with near universal agreement that such a development is not required at this time.

We find ourselves in a frankly ridiculous situation, thanks to the Minister. In order to give effect to EU Regulation 598/2014, a noise regulator must be appointed to Dublin Airport. Because the Minister and the Department assumed that the Irish Aviation Authority would be the competent authority it seems that no arrangements were made in case the IAA did not work out. Given that the IAA is currently being split into two entities because of serious concerns around conflicts of interest in respect of its regulatory role the Minister and his Department should at the very least have been aware of this possibility.

Now we have missed the EU deadline and we are currently in breach of EU law. We have a contract awarded to build a new runway and no noise regulator is in place. The Government is, therefore, trying to hammer through this important legislation in a couple of weeks. Earlier this week an idea was floated to have a deadline for Committee Stage amendments before Second Stage had even begun. Thanks to objections from me and others at the Oireachtas Joint Committee on Transport, Tourism and Sport the Committee Stage will now be put back until after Christmas to allow offices adequate time to prepare amendments.

The Government has decided that Fingal County Council is the best option for a noise regulator. It appears that this decision has been taken because the council would be in a position to take up this new role faster than the other options open to the Department. This is not a good way to do business. We have to end the practice in aviation of having regulators who are financially dependent on the entities they regulate. I propose that the Commission for Aviation Regulation is a more appropriate competent authority for noise regulation at the airport. The commission satisfies the independence requirements of Regulation 598 and has existing regulatory roles in respect of Dublin Airport. It is expected to have further regulatory roles around civil aviation in the near future when the functions of the IAA are changed due to the current conflict of interest. The IAA currently regulates civil aviation safety while simultaneously making revenue from these airlines. This is a desperately poor practice, which does not happen in other jurisdictions. It does not promote confidence in the ability of the Minister to address issues of conflict of interest in the aviation sector, or to remedy issues when they are identified.

The Irish Aviation Authority (Amendment) Bill 2017 was at the committee for pre-legislative scrutiny and has not been seen or heard of since. Will the Minister say when we might see that Bill? Will we see it in this Dáil term? The Department objects to the commission taking on the role of noise regulator as it does not have the expertise currently, but the same argument could be made for Fingal County Council taking the role. The real issue is that bestowing the function upon the commission will probably be a lengthier process, but that is the Department’s own fault for delaying, and it is not an excuse for poor decision-making.

It is very poor form to try to hammer this legislation through the Dáil; we need to do this properly. Fingal County Council has been identified for reasons of convenience - that is exactly what it is - as the most suitable authority to regulate aircraft noise, not because it is the most suitable authority. I would like it noted that I am not criticising Fingal County Council. This was the Minister’s decision. The council has no expertise in this area, and I am sure it never expected to be put in this position. It is very unfair. Given the total lack of expertise in the council, can the Minister outline exactly what arrangements must be made by the council to take on this new role? What additional funding will be at its disposal? What sort of expertise will it need to bring on board?

We have an obvious issue with the conflict of interest at the council. The council collects rates from the airport and will now be responsible for noise regulation and decision-making around flight numbers. The Government is at pains to emphasise that only 8% of the council’s revenue comes from the airport. That is a shocking attitude to take as 8% is a significant funding stream and the fact that any funding for the council comes from the airport authority is reason enough, surely, for the council not to be appointed as regulator. The fact of the matter is that a public body will be collecting money from an entity over which it has regulatory powers. This is a conflict of interest and raises serious concerns about the decision to appoint Fingal County Council as the competent authority. Clearly, there is an issue around timing, in particular with the runway, but the poor governance at the Department is not a legitimate excuse for poor policy.

Some 85% of air traffic in this State comes through Dublin Airport. It is essential that the airport not be subject to regulatory uncertainty. However, the solution is not to implement an inappropriate regulator or just any regulator at all. It is absolutely outrageous that we are in this position. The sheer incompetence demonstrated by the Minister is out of this world. He has displayed incompetence in many parts of his portfolio but this latest escapade is something else. The main thing here is independence. We need a completely independent entity to take on the function of the noise regulator. This could be the commission or it could be a new entity, if that was judged to be more appropriate. This is the direction we are taking regarding the funding of civil aviation safety regulation. It makes sense and removes questions of bias or conflict of interest. The Bill has serious issues that need to be amended. I intend to address those issues on Committee Stage in the new year.

Deputy Louise O'Reilly

This Bill seeks to give effect to EU Regulation No. 598/2014, which requires airports over a certain size to appoint a noise regulator. I welcome the people in the Gallery and must say I admire the restraint and patience of those who live beside Dublin Airport because they have been living with a lot of uncertainty for the past few years since planning permission was granted for the additional runway. They are practical people. They know that the airport is there. It comes as no surprise to them. They and we believe that the good neighbour policy Dublin Airport is keen to foster needs fostering and protecting. They know they live beside the airport; it does not come as a shock to them. They know it is going to be noisy but, equally, they have a right to a decent quality of life. It does not seem much to ask that the night flight restrictions be retained for the sake of the health and safety of those who live in the environs of the airport or under the flight paths.

Sinn Féin will not oppose this legislation progressing to Committee Stage but we do so only to facilitate the putting forward of amendments, as my colleague, Teachta Munster, has indicated. If these amendments are not accepted and if the concerns are not addressed then we will not be in a position to support this legislation. As has been said already, there has been substantial delay in progressing the legislation. Now, at the very last minute, we see attempts being made to rush it through. Of course that sets off alarm bells for the residents because they have seen years of inaction and delay, yet all of a sudden, at ten minutes to Christmas, everything has to be done. I commend Teachta Munster and others on the Oireachtas Joint Committee on Transport, Tourism and Sport on ensuring that we have adequate time to prepare amendments for Committee Stage. The deferral of Committee Stage is extremely important. It means we have time to engage within our own offices and parties, to talk to the people who are impacted and to formulate those amendments.

Notwithstanding that there was a delay, the legislation seems very hastily written. One particular omission is the mention of health. This is contained in the EU regulation but there is only one mention of it in the legislation. The regulation states:

The importance of health aspects needs to be recognised in relation to noise problems, and it is therefore important that those aspects be taken into consideration in a consistent manner at all airports when a decision is taken on noise abatement objectives, taking into account the existence of common Union rules in this area. Therefore, health aspects should be assessed in accordance with Union legislation on the evaluation of noise effects.

The regulation further states "The objectives of this Regulation are ... to facilitate the achievement of specific noise abatement objectives, including health aspects, at the level of individual airports, while respecting relevant Union rules, in particular those laid down in Directive 2002/49/EC, and the legislation within each Member State". This legislation, however, only mentions health at section 38(3)(a), which only refers to special areas of conservation and special protection areas, as was mentioned earlier. This is not acceptable; there are of course areas of special conservation around the airport but those areas and the airport exist beside real people in real communities whose health and well-being is not mentioned in the Bill. This omission gives those people cause to be very worried. They do not believe that their health and well-being is in any way a priority for this legislation and when they read the Bill they see that there is nothing there to contradict that view. The EU regulation is very clear on what it seeks to do. It states:

Sustainable development of air transport requires the introduction of measures aimed at reducing the noise impact from aircraft at Union airports. Those measures should improve the noise environment around Union airports in order to maintain or increase the quality of life of neighbouring citizens and foster compatibility between aviation activities and residential areas, in particular where night flights are concerned.

Where in this proposed legislation is the provision for maintaining, much less increasing, the quality of life for the citizens who are neighbours to the airport?

The proposal by the Government to appoint Fingal County Council as the competent authority is also a very curious one. This issue has been rehearsed and the arguments have been made. I cannot understand why the Minister would believe that it is a good idea - it might be a convenient idea - to appoint Fingal County Council to this role. I simply cannot fathom that. It is convenient but apart from that, I do not see a reason. The regulation provides that the competent authority shall be independent of any organisation which could be affected by noise-related action. It suggests that this independence may be achieved through a functional separation. How can there be a functional separation where the chief executive of the competent authority is also the chief executive of the entity that receives significant rates from the airport? I just do not understand how that functional separation can exist when there will be one unit in charge. That is not in any way to cast aspersions on Fingal County Council or the people who work in it because I know that they work hard. They themselves will say they do not have the expertise to be able to do this work. When we talk about functional separation, how is it going to be achieved? There is nothing in this Bill that gives us any indication. It seems to me that it is not possible. The experience and expertise are simply not there. I did attend briefings with the Minister's officials, who were of the view that Fingal County Council would have to buy in the expertise because the expertise does not exist.

If Fingal County Council has to buy in the expertise, that brings us back to the original question of how Fingal County Council was chosen. The answer, of course, is that it is convenient. The convenient solution is not necessarily the best.

As an Teachta Munster outlined, we will be proposing that the Commission for Aviation Regulation be appointed to be the competent authority. We could not support this legislation as it is currently written. We will resist attempts to appoint Fingal County Council as the competent authority and I know that others will be doing the same.

I urge the Minister to listen to the concerns of the residents and their representatives. Is it really a good idea for the regulator to be responsible for regulating its single biggest ratepayer? Is it really the best way to safeguard the health and safety of those living in the neighbourhood of the airport? We do not oppose the new runway but we will oppose the Bill if it does not fulfil the requirements of the EU regulation. We simply cannot support the appointment of Fingal County Council as the competent authority. Fingal County Council is a very good, hard working, competent and capable local authority, but it is not a regulator in that sense and it will need to buy in the expertise. It makes no sense when the expertise does not exist.

The Department of Transport, Tourism and Sport officials also indicated that temporary expertise might have to be brought in or that the council might be able to bring people in from time to time. I do not think that is any way to provide what the regulation requires which is that health and safety should be part of it. I do not believe it can be done in that piecemeal way.

This evening's discussion gives us a good opportunity to highlight concerns residents have, such as the concerns about insulation mentioned already. I am sure these people would very much welcome the opportunity to meet the Minister and discuss those in full. Nobody disputes that the airport is very important locally and nationally. Future developments must be balanced along with the needs of the people who will be impacted by this.

Because Committee Stage will not be taken until the new year, there is time to consider alternative options such as the Commission for Aviation Regulation. There is time to engage with the residents and their representatives to ensure this legislation goes through, and that we comply with the regulation in full.

Deputy Brendan Ryan

I also welcome the residents from Portmarnock, St. Margaret's and Swords and the forum group to the Gallery to listen to this debate.

The Bill, which has been repeatedly delayed, is finally here and yet it still seems hurried. The attempt to take Committee Stage next week was totally unacceptable and I congratulate the members of the committee who, I believe, unanimously rejected that request.

This Bill, which gives effect to an EU regulation on noise monitoring, is technical. Some might say it is too technical and some might even say it is dull. However, this is vital legislation and one which is causing huge alarm to many communities and residents in Fingal.

EU Regulation 598/2014 aims to improve the noise environment around EU airports to ensure greater compatibility between aviation activities and residential areas, in particular in the case of night flights. The rules are based on the principles of the balanced approach to noise management agreed by the ICAO, the United Nations body dealing with international civil aviation. The EU formulated the rules on the principles of the balanced approach to noise management agreed by this body, which seek to make airplanes quieter by setting noise standards, manage the land around airports in a sustainable way, adapt operational procedures to reduce the noise impact on the ground and introduce operating restrictions, usually as a last resort.

The purpose of the operating restrictions is that decisions regarding airports and their aviation are evidence based and offer the best solutions for noise problems with regards to safety, capacity and cost. EU Regulation 598/2014 states that this only applies to airports with more than 50,000 civil aircraft movements per year, meaning that Dublin Airport is the only airport in Ireland to which this applies. An operating restriction can take various forms, such as setting a noise or a movement limit, introducing a non-addition rule or adopting a curfew for a period of night. That is the context and includes the need for a balanced approach, something which is lacking in this Bill.

Any regulation which aims to improve the noise environment around EU airports should be welcomed with open arms. However, unfortunately we cannot welcome the legislation as it is currently drafted. Chiefly, Labour has a problem with the Minister's choice of Fingal County Council as the so-called competent authority for noise monitoring. We share that view with others who have already spoken.

The regulation states that this authority must be independent of any party that might have a conflict of interest. The Bill proposes to designate Fingal County Council as the competent authority and as such, we instantly have fears over potential conflicts of interest.

Under the Bill the functions of the competent authority are to be performed by the CEO of the county council. Those functions are to be treated as executive functions and the chief executive is to be independent in the performance of them. Specifically, the chief executive is not to be subject to the direction of the elected council acting by resolution under section 140 of the Local Government Act 2001. However, the chief executive may, to the extent that he or she is satisfied that it is appropriate to do so, have regard to any plan adopted by the elected council pursuant to its functions. That said, the members of the elected council are barred from influencing or seeking to influence the chief executive in his or her performance of a function of the competent authority. It is beyond me how this can be construed as giving power to local government. This shall not be construed to prevent the members of the elected council from discussing noise at the airport where relevant to the performance of their functions as the elected council.

The question is whether these elaborate safeguards satisfy the requirements of the airport noise regulation 598/2014. I believe they do not. Recital No. 13 of the regulation states that:

The competent authority responsible for adopting noise-related operating restrictions should be independent of any organisation involved in the airport’s operation, air transport or air navigation service provision, or representing the interests thereof and of the residents living in the vicinity of the airport. This should not be understood as requiring Member States to modify their administrative structures or decision-making procedures.

Article 3.2 provides that:

The competent authorities shall be independent of any organisation which could be affected by noise-related action. That independence may be achieved through a functional separation.

What is functional separation? That is key to this. Functional separation is EU jargon that is more familiar in the field of competition law as applied to monopoly utilities and service providers. It is a remedy that falls short of splitting up a monopoly and spinning off the component parts into separate ownership. Instead, the remedy is to impose an obligation on an undertaking to place certain of its activities into an independently operating business entity.

The best-known example in Ireland is the ESB. EirGrid and Electric Ireland are functionally separate entities within the ESB, with separate and independent boards. However, there remains a common ownership which is important, because the ESB can continue to borrow against the assets of the national grid.

However, I believe functional separation must require that each independent entity is confined to performing its own functions. Functional separation means a separation of function. For example, EirGrid is only concerned with the grid, Electric Ireland with sales and the ESB with generation. None of the three functionally separate entities has mixed or overlapping functions.

That is not what is proposed in this Bill. The CEO of the council is to be given certain functions, which he or she is to perform without direction from the council. However, he or she is to remain as CEO of the council: that will continue to be his day job.

If the CEO of the ESB was vested with direct responsibility for managing the national grid independent of the board of the ESB while continuing to perform the functions of CEO, anyone would think that grid management was functionally separate from the ESB. While the CEO of Fingal County Council will be independent of the elected members of the council under the Bill, he or she is not independent of the local authority itself, which is, in law, a separate concept. As such, he or she will remain as CEO of a body whose principal statutory function under section 63 of the Local Government Act 2001 is to provide a forum for the democratic representation of the local community and to provide civic leadership for that community. While providing a forum for democratic representation is primarily the responsibility of the elected members, it is the statutory duty of the CEO to advise and assist the elected members generally as regards the performance of their functions under section 132 (3) of the aforementioned Act.

The relationship between Fingal County Council and the DAA is very strong and close and needs to be thus. The airport is a key economic driver of the country and a vital source of employment for people all over Fingal. The rates are just one testament to the intertwined relationship of the DAA and council. The financial success of the DAA has a direct correlation with revenue generation for Fingal County Council. Coupled with this is the fact that the DAA is the largest ratepayer in Fingal County Council, with the authority accounting for 22% of the rateable income of the local authority. The existence of this financial relationship does not in and of itself indicate any party acting in a conflicted manner but it raises valid questions about the potential for a conflict of interest.

This Bill has to be read in the context of the building of the second runway at Dublin Airport. We are told that the delivery of the north runway will enable a 30% increase in connectivity which will support an additional 31,200 jobs and a further €2.2 billion of economic activity. This Bill, if passed, will pave the way for the second runway and for the DAA to apply to change the planning conditions which limit night-time flights on the new runway and across the entire airport. In recent years, the DAA has been making strong arguments through consecutive CEOs that the planning conditions need to be set aside to make the new runway economically viable. However, this argument can be disputed because there is a difference between viability and maximising profitability, which is the real concern of the DAA. The runway will be viable and profitable under the existing planning conditions but these conditions will restrict the DAA from wringing every last drop of revenue out of the runway. Allowing it to do so through night-time flights would be to the detriment of local residents in Fingal affected by flight noise, many of whom are in the Public Gallery this evening.

A balanced approach, as provided for in the EU's noise regulation - Regulation No. 598/2014 - must be applied but the constant references by the DAA to economic viability, which should be read as profitability, highlight what is really behind this project and provide context to this Bill. The economic relationship between the DAA and Fingal County Council leaves the council open to charges of a potential conflict of interest. Therefore, the Minister must choose a different body to be the competent authority.

The need for functional separation required by Regulation No. 598/2014 is not being met, as I outlined previously in the context of the ESB example. Fingal residents are also concerned about the council acting as both a decision maker for any planning applications regarding construction work and as an independent noise regulator. Dublin Airport will be forever building, expanding and growing and there have also been discussions in the Department on the building of a third terminal. In these instances, Fingal County Council would be both the independent noise regulator and the planning authority. The council should not hold both positions simultaneously. Surely the Minister can see this.

Another concern of citizens relates to the general aviation expertise of Fingal County Council. Is specific expertise currently at the disposal of Fingal County Council? If not, the council will have to hire in this expertise. Will its wage structure allow this? These are very real questions. This cannot be another responsibility added to an existing department or one given to an individual who already has other responsibilities. This is a highly specialised skill and, as such, needs the expertise of bodies such as the Commission for Aviation Regulation, CAR. In 2016, a ministerial press release claimed that the Irish Aviation Authority, IAA, was the best option to be the competent authority since it oversees aviation safety and air traffic control. Since then, the Minister has announced that he intends to split the IAA such that the CAR, which currently protects airport consumers and sets the level of airport charges, adopts the safety oversight feature of the IAA. Post-split, the IAA would only provide the for-profit, commercial air traffic control service while the CAR would be the independent regulatory body. Thus, the Commission for Aviation Regulation is a good option as it would fit the requirements of Regulation No. 598/2014, particularly in the post-reorganisation scenario outlined. The Environmental Protection Agency, EPA, is another option that would also be acceptable to the Labour Party.

There is no mention in the Bill of the importance of health, as referred to by other Deputies. This must be recognised as health is clearly referenced in Regulation No. 598/2014. I will not read the reference now but this must be included in the Bill. The regulation calls for an improvement in the quality of life of neighbouring citizens of airports, particularly where night flights are concerned. This is also not included in the Bill. What is the basis of the Minister's approach here? The suspicion of affected residents is that he is pursuing the bottom line and not taking a balanced approach to include the well-being of residents who live beside the airport and under flight paths. In fact, reference is made to animal habitats but there is no mention of the health of local residents. This is not a balanced approach.

If this Bill is enacted as proposed, there is a real risk of it being challenged before the European Court of Justice on the grounds that the current proposals do not achieve true functional separation as between the competent authority, namely, the CEO of the local authority, and the local residents via elected members on the council, which the competent authority will continue to serve, as CEO.

It is clear the Minister wishes to rush this Bill through the Houses. While the legislation has been delayed continuously, it still has an air of being rushed and hurried. This causes those of us on this side of the House to have concerns and suspicions. We are not happy with the Bill as drafted. We want the economy to grow and flourish. I want to see more jobs created at the airport. I also want to see more good jobs that are long term and will support families and local communities. Nobody wants to stand in the way of progress, including the local residents. As the Minister knows well, many of the residents objecting to the Bill have relatives or friends who work in the airport or work there themselves.

Nobody wants to see this done in the way the Minister is proposing. It will only lead to problems further down the line. It is fair to say that the relationship between the DAA and local people is not as good as it could be and faith in the Department of Transport, Tourism and Sport is not as good as it should be. This Bill, with Fingal County Council as the designated noise monitor, does nothing to meet the concerns of local residents. To be honest, it looks like the closer alignment of two powerful local forces, both of which can be forces for great work and delivery in Fingal. However, based on what I have already outlined and on what others have said and will say later, there should not be another bridge in their relationship carried through with this Bill because there is no need.

I ask the Minister to listen and to change this Bill. I urge him to introduce amendments on Committee Stage to replace Fingal County Council as the competent authority. He could choose the CAR or the EPA as the alternative. He should not leave it to those of us on this side of the House to choose an alternative for him by way of amendment.

Acting Chairman (Deputy Catherine Connolly)

I am sorry to interrupt but the Deputy's time is up. We must move on to the next business.

Debate adjourned.

Dáil Éireann debate - Wednesday, 12 Dec 2018