Joint Committee on Transport, Tourism and Sport debate -
Wednesday, 11 Jul 2018

Proposals for Second Runway at Dublin Airport and Noise Regulation Legislation: Minister for Transport, Tourism and Sport

Chairman

The committee will now consider proposals for a second runway at Dublin Airport and for noise regulation legislation. In this regard, I welcome the Minister for Transport, Tourism and Sport and his officials.

I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I invite the Minister to make his opening statement.

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

I thank members for being present to discuss what everybody recognises is a vital piece of national infrastructure. It is correctly being examined by this committee, because without it we would lack connectivity which we need so badly. I have arranged a full briefing for members by my officials tomorrow if they want to get into the detail. They have all been notified of that.

The second runway is an important national transport project, which of raises a range of complex issues about sustainable and balanced national development, the future needs of our economy and a booming population, global connectivity and environmental protection. It involves difficult choices and decisions. Delivering major infrastructure often means the need for compromise.

If Dublin Airport, which is reaching capacity, is to service the needs of our island nation, it needs another runaway. Dublin Airport Authority, DAA, has started work on it, and as the committee recently heard from the new DAA chairman, Mr. Basil Geoghegan, all going to plan, it will be ready by late 2021, with construction to begin early next year.

There are complicating issues, which were recently raised with the committee by the DAA chairman. I have addressed these issues in Dáil and I will discuss them further now. I refer to the operating restrictions and the appointment of a noise regulator.

In 2007 the DAA received planning permission to build the new runway at Dublin Airport. Part of the conditions for granting that planning permission related to noise at the airport, and in particular, two conditions were introduced by An Bord Pleanála that will impose operating restrictions on Dublin Airport when the new runway is complete. Specifically, as I understand it, the restrictions mean that the number of flights landing and taking off at the airport between 11 p.m. and 7 a.m. will be halved once the new runway is completed. This will have a knock-on effect on aircraft utilisation throughout the day and may lead to aircraft being based elsewhere.

Those conditions still apply with the planning permission extended to 2022, and the DAA is concerned about the impact on the viability of the runway project and on Dublin Airport more generally in the medium to long term.

In the intervening period between the awarding of runway planning permission in 2007 and the DAA's announcement of the north runway project in April 2016 in light of the rapid recovery of passenger numbers, new EU regulations on airport noise management were introduced. EU Regulation 598/2014 came into formal effect in 2016, setting out a structured approach to assessing and addressing noise at airports using the so-called "balanced approach" developed by the International Civil Aviation Organization, ICAO. The objective of the regulation is to facilitate airport development and expansion in a way that minimises the noise impact of that expansion as far as practicable. Moreover, the regulation is crafted to support airport development and more and better global access. It therefore provides that the introduction of operating restrictions should only be a last resort after all other alternatives have been considered or applied. The Government last week approved a process that envisages enactment of a Bill to give effect to EU Regulation 598/2014 by the end of the year. This will allow for a re-examination of noise mitigation at the second runway from the perspective of a custom-built legislative framework for noise impact and noise management. This was not possible under the generic planning process as it applied in 2007. This re-examination will be done in accordance with both the EU regulation and existing environmental and planning and development laws and procedures.

It will be evidence-based, transparent, and subject to public consultation and oral hearing. There will also be an appeals process. If this results in workable and acceptable noise mitigation alternatives to operating restrictions, that will be a best outcome for all parties, but there has to be due process.

Some people have complained of unnecessary delays and foot-dragging. This ignores that this is a complex business and I must have regard to legal advice. Throughout 2016 and 2017, based on legal advice, extensive work was undertaken in my Department with a view to implementing EU Regulation 598/2014 by way of secondary legislation and having the Irish Aviation Authority, IAA, as the airport noise regulator. The IAA seemed to make sense as the existing air navigation service provider, similar to the implementation of the regulation in other jurisdictions. However, practical issues arose regarding the legal framework required to ensure the independence of the IAA as the competent authority, as required under the regulation. Legal advice, late in that process, made that approach impractical. This advice included the likelihood of successful legal challenge and the measures required to safeguard the independence of the IAA.

With this in mind and following intensive consideration of the available options, the Government agreed in January on a proposal to make Fingal County Council the airport noise regulator and An Bord Pleanála the appeal body, and to develop primary legislation giving effect to that. The approach we are now taking will address the interrelationship between EU Regulation 598/2014, the planning system and the environmental considerations. Primary legislation is being prepared as a priority.

The process for introducing or amending noise-related operating restrictions will be aligned and deeply embedded in the planning consent process. It will address the environmental legislative requirements. It will be transparent and will involve significant public consultation - it will have up to three months' consultation where operating restrictions are being considered. It will have non-technical summaries to ensure it is accessible to the stakeholders and it will fully comply with EU Regulation 598/2014 and planning requirements.

I would like to outline briefly the envisaged process so that we are all clear on progress being made. This will help to focus on the steps required to deliver the legislation in parallel with the delivery of the runway. The DAA will prepare an application for consideration by Fingal County Council, the competent authority. This application will contain all the information required by the council to enable it to assess and come to a regulatory decision. Once made, the application will be publicly available and there will be an opportunity for all stakeholders to contribute their views before the decision is made.

This regulatory decision, which may or may not contain noise-related operating restrictions, will replace the existing conditions that Mr. Basil Geoghegan outlined during his appearance before the committee. It is important to note that this will be the first decision made in Ireland under EU Regulation 598/2014. This decision can, of course, be appealed and An Bord Pleanála will be the appeals body. This process will be enabled by primary legislation which I am hoping have enacted by the end of this year. This aligns with the timeline for construction of the runway provided by the DAA.

I am confident that Fingal County Council is best placed as the competent authority and that will be demonstrated clearly in the course of the legislative process. The council has responsibilities under the EU environmental noise directive relating to noise caused by major transport infrastructure, including roads, railways and airports. In addition, in its planning functions it has considerable experience and expertise in the conduct of environmental impact assessments, appropriate assessments and in managing extensive public consultations. Therefore, considerable synergies arise from the assignment of this additional role.

I am also aware of the concerns of some local residents. I am sympathetic to their genuine concerns about this matter, particularly given the uncertainty over how the regulation was to be applied. The fact that there will be primary legislation and that the process will be clearly laid out should give comfort that we will provide an open and transparent regulatory process. I have every intention of introducing a Bill that will strike a balance between the rights of local residents, the DAA, as the regulated entity, and the broader national interest in recognition of the crucial importance of our primary national airport.

I want to outline some key milestones in the process. I expect to have the airport noise regulation Bill in the Houses by November and enacted by the end of the year. This will be followed by the initiation of the formal regulatory process and a regulatory decision by December 2020. This will align with the DAA's estimation for the construction of the runway by March 2021.

I acknowledge that this has been a lengthy process, for the reasons I have outlined. However, I hope members of the committee can see that significant progress has been made and that this effort will continue until the regulatory process is in place and in operation. This process will continue beyond the construction of the runway. It will be continually monitored and reviewed, and will provide the framework for consideration of future expansion of the airport. It is important that we get this right and deliver an open and transparent regulatory process.

I appreciate the concerns of the members of this committee and now that we have a clear pathway I look forward to their co-operation in meeting the timeframe for this very important national project.

Chairman

I thank the Minister. I wish to clarify that there is an extant planning permission dating from before EU Regulation 598/2014 came in, which, if and when it were implemented, without this EU regulation, would mean that there would be significant restrictions in the operation of aircraft before 7 a.m. or after midnight. That was a decision of An Bord Pleanála. In summary the Minister is saying that has now been superseded by this regulation. If the legislation passes, it will go through the planning process in Fingal County Council. An Bord Pleanála would be the appeal party in that context. Does that create a problem?

Deputy Shane Ross

No. The Chairman is correct in what he says. The restrictions are there but they do not kick in until it is finished. If the legislation is passed by the Oireachtas those planning permissions will then lapse and there will be new conditions. We do not know exactly what they will be at this stage.

Chairman

The point is that the appeal process will go back to An Bord Pleanála which has decided on it prior to this EU regulation coming in.

Deputy Shane Ross

That was in 2007 in different circumstances.

Chairman

However, I presume it will be challenged legally.

Deputy Shane Ross

I cannot predict whether it will be challenged. However, it will now be considered in different circumstances because it will be considered under EU Regulation 598/2014. It will be working to that template and those conditions. The conditions are quite different and it will be working under an EU directive when it issues its new findings.

Chairman

I just wanted clarity on that.

Senator John O'Mahony

I thank the Minister for outlining the process that is starting. When Mr. Geoghegan appeared before the committee, he pointed out that there could be a second runway but less throughput of passengers in Dublin Airport than at present, which would be disastrous given the growth the airport needs. Everybody's rights need to be taken into account. I understand the Minister's explanation of the process. Is it possible that we could go through that entire process and reach the position Mr. Geoghegan described? Is there any other game in town rather than taking this route? Everybody wants the throughput of passengers to increase for this important hub. Is there a plan B if this runs into the sand?

Deputy Robert Troy

I welcome the Minister and his officials. It is long overdue that we are having this discussion. We can all agree that the second runway is critical to our national infrastructure and the development of our country. The Minister outlined a clear timeframe, but this is not the first time he has outlined a timeframe. It is not the first time he has given an indication as to when he expects delivery of the competent authority. For 18 months he told me repeatedly in the Dáil it would be the IAA. In fact, legislation was imminent on three separate occasions. How can we have confidence today that what he is saying to us will be delivered and will be accurate? How can Fingal County Council have confidence that what he is saying today will be delivered and accurate? Did the Minister meet the CEO of Fingal County Council? Did he hear the concerns of Fingal County Council about its ability to become the competent authority?

I mentioned the 18 months wasted with regard to the IAA. Even in February of this year, the Minister facilitated a briefing with his officials at which we were advised we would have the legislation in weeks. Earlier this year, the Minister indicated he would have a draft Bill before the Dáil recess. The recess is tomorrow and we know we will not have a draft Bill until October. When was the Minister informed of the delays? When did he know there would not be a Bill before the Dáil recess? What is the reason for the delay? Is there a delay because of resource issues in the Department? Is it because there is not the relevant expertise in the Department? Is the Minister satisfied with the manner in which the Department has conducted the process? Has Fingal County Council received independent legal advice on whether there is a need for primary legislation as opposed to a statutory instrument? If so, has it shared that legal advice with the Minister?

This is an EU regulation, therefore, there is a requirement on all European countries to implement it. How many of our European counterparts have implemented this regulation to date? The Minister keeps saying we are taking a pot shot or cheap political shot at him. How many of his counterparts have implemented this? What are other countries doing regarding the establishment of an independent regulator? My understanding is that a number of them have appointed their equivalent of the Irish Aviation Authority. Did the legal advice recommend for 18 months that the IAA be appointed? Has the legal advice changed or is it that the person who is giving the legal advice has changed?

Head 15 refers to declassifying the development of Dublin Airport as strategic infrastructure development. Will that have ramifications down the road in terms of any future application the airport would have to make? The Minister stated the reason responsibility was taken from the IAA was the perception of a conflict of interest. Does the Minister not feel that very same perception could be given, given that the DAA is by far the largest ratepayer to Fingal County Council? He who pays the piper calls the tune. Does he think it will have undue influence in terms of being the largest ratepayer? What will he do to mitigate against that perceived conflict of interest?

Is the Minister aware the local residents' group, to which he referred in his statement, was satisfied with the IAA being appointed the competent authority. It was satisfied the IAA would act in an independent fashion, but it is anxious and concerned about Fingal County Council. Is the Minister aware of this?

Deputy Imelda Munster

In his statement the Minister said he had felt it made sense to have the Irish Aviation Authority as the airport noise regulator. I am curious as to why he thought that was a good idea when there were already serious questions about the independence of the authority. There was to be a process to separate the two main functions of the authority and bring the safety regulations under the Commission for Aviation Regulation. Will the Minister give us an update on this?

There was a lot of commentary on the separate independent authority that should be created for the purposes of noise regulation. The Minister said he chose Fingal County Council and that he is confident Fingal County Council is best placed. Why is this? According to what he outlined, it already has responsibilities under the EU environmental noise directive relating to major traffic infrastructure and roads and with regard to its planning functions. Every local authority has this. Is there a particular expertise that Fingal County Council has above the others? Is this why he chose it? As Deputy Troy mentioned, 8% of the local authority's funding comes from airport traffic rates. How does the Minister consider this to be independent?

After the time wasted on the Irish Aviation Authority, was it a chaotic last-minute decision to opt for Fingal County Council? Was it done because it is so rushed? It is very specialised work and I cannot see why it would have the expertise above others.

The Minister spoke about the regulation and the Bill. Will he outline what specifics are in the regulation or in the Bill regarding the rights of residents? He mentioned that the primary legislation will supersede planning permission. Will he elaborate on this?

Could this not go directly to An Bord Pleanála under the critical infrastructure provisions? That is a way for major decisions to be dealt with separately, and nationally. Given the complexity of the decision and the expertise required, is this not possible?

Deputy Shane Ross

Under the EU directive there needs to be an appeal body and An Bord Pleanála is the ultimate appeal body. If it went straight to them there would be no appeal body. We have to have construction and then-----

Chairman

There has to be a first stage, separate from the appeal.

Deputy Shane Ross

Yes. Senator O'Mahony asked about the throughput. According to the DAA, if everything went wrong and the planning restrictions were as they are now, it would halve the throughput of night-time traffic, that is, traffic between 11 p.m. and 7 a.m. That is very serious and would not be acceptable. We do not know if the new noise regulator will come up with a similar solution but the DAA is very concerned at the moment.

Chairman

How many flights are there between those times?

Deputy Shane Ross

I think there are some 120 but this would be reduced to 60.

Deputy Troy is right in much of what he says. There has been a delay, and when we thought the IAA would be the competent authority we anticipated an earlier timetable for the legislation and everything else. We were taken by surprise by our legal advice forcing us to look for another authority. That is why we have such a tight timetable. The Deputy is correct that we did not anticipate that happening. One cannot second-guess the Attorney General but we have to accept the advice and respond to it.

Deputy Robert Troy

The legal advice changed based on the change in Attorney General.

Deputy Shane Ross

It did change.

Deputy Robert Troy

Based on a change in Attorney General.

Deputy Shane Ross

I do not know what it was based on but it did change. It was probably based more on other judgments in Europe relating to the issue. The alternative to what we did was to ignore the legal advice but the advice was that, if we appointed the IAA, we would be subject to legal challenge. It would have been pretty irresponsible and reckless to appoint the IAA in the face of such advice. With an issue as important as this, we have to take every step to appoint a regulator which we can defend in the courts. That is why it took so long but I share the Deputy's frustration. Delay is an irritant for a Minister in my position but I believe the timetable will still be met. The issue is one of independence, which is a subjective judgment. We were advised that the independence of the IAA was questionable and we decided to take the advice. The Deputy would be the first person to criticise us if we had ignored it. I regret that it took so long but we could not force them to produce advice. If it is good advice in the end, that is fine.

I have not met the CEO of Fingal County Council and I have no plans to do so. My departmental officials meet regularly with officials of Fingal and the county council has been deeply involved in developing the processes required to implement regulation 598/2014. In June, the chief executive officer of Fingal County Council made a presentation to the cross-departmental team convened to support delivery of the north runway project and the council will be more involved as the legislation progresses. If the CEO asks to meet me I will consider it, but I am not sure it is either necessary or appropriate at this stage. Fingal has been appointed designate for the moment and will not actually be appointed until the legislation has been passed. I do not have particularly strong feelings on the issue but at the moment I believe this should continue at official level.

I am absolutely satisfied that the Department has served me very well on this. It has not been responsible for any delays and has responded to every event beyond its control in an extraordinarily efficient way. The complexity of the legislation is stunning as there are deep legal, environmental and planning issues which are in the sphere of specialists. It covers several Departments and there is a lot of exchange between Departments and the Attorney General and Fingal. I do not think the Department is to be criticised for an unfortunate series of events which meant things had to be changed. It responded perfectly adequately and things like that happen in a complicated system of this sort.

Deputy Troy also asked if the person who gave us the legal advice had changed. I do not know who the individual in the Department is but it comes through the Attorney General. There may be external people involved too but I am not certain whether there has been a change. It is more the case that judgments elsewhere gave rise to the change.

I was also asked if Fingal County Council was conflicted in the way the IAA was. The DAA rates represent 8% of the income of Fingal County Council. This is a significant amount but 92% is not from that source. This is a levy and not something for which they are competing with some other body. I am not sure it gives the DAA any great leverage on Fingal County Council as it does not have the option of fighting it. The council will be provided with the appropriate resources to undertake this additional role, ensuring it has the necessary tools to make evidence-based decisions in relation to noise mitigation measures and noise-related operating restrictions. Local authorities have a wide range of statutory regulatory and enforcement functions. These are related to the environment and planning and sit alongside their rate-collection and property tax-setting functions. If somebody wants to point the figure at Fingal, they could equally do so at all county councils, who may be so conflicted in all sorts of ways.

Deputy Troy said local residents groups were satisfied with the IAA but so were we at the time. I am not sure the same groups are dissatisfied with the current decision but, irrespective of their wishes, our wishes or those of the IAA itself, the Attorney General was not satisfied and that is the reason the decision was made.

As regards local resident groups, the DAA is still engaging with them and I am happy to engage with them from time to time. I have already met a large number of them and I have heard what they have to say. I do not think I have refused to meet any local resident group, but this does not mean I am opening the door for them all to come in. Some of them are involved in legal actions and they too, I think, would possibly be dissatisfied if they felt that the IAA was conflicted and this is what the Attorney General has decided.

The Deputy asked if other member states have made a decision on that basis and if they have appointed their aviation authority. I have a table which I can give to the Deputy if he wants it. Belgium, Romania, Spain and the UK have not yet designated their competent authority. The aviation authority designate or in other words, the IAA equivalent, has been appointed in Austria, the Czech Republic, Italy, Latvia, Poland, Portugal and Sweden. A national regional authority, which is similar to Fingal County Council, has been appointed in most cases, including by Ireland, Germany, Denmark, the Netherlands, Luxembourg, Hungary, Greece, France and Finland. The majority of member states appear to have followed the same path as Ireland. Others have appointed their designated authority but I presume that is because they have not had the same legal advice and do not have the same constitutional requirements.

Deputy Munster asked about the competency and independence of the IAA. I have already addressed the issue of independence. The Deputy also asked if Fingal County Council is best placed to take on this role. It offered the best way forward following interdepartmental discussions. We also considered the alternatives, of which we did not have a large number. We looked at State agencies as well. I am not sure if it is appropriate to name them but I am sure they are fairly obvious. We felt that owing to its experience and responsibilities in the environment and regarding noise pollution, Fingal County Council was better placed than other agencies, some of which had no experience or experience in only one particular area. This followed discussions between the Departments of Transport, Tourism and Sport and Housing, Planning and Local Government. We also had to have regard to EU Regulation 598/2014. As I said, Fingal County Council has responsibilities under the EU environmental noise directive, which include responsibilities relating to noise caused by urban conurbations and major transport infrastructures, including roads, railways and airports. In addition, in regard to its planning functions, it has a great deal of experience and expertise in the conduct of environmental impact assessments, EIAs and in managing public consultations. There are synergies arising from the assignment of this additional role to Fingal County Council.

On the issue of conflicts and the 8%, I have already dealt with that in my responses to Deputy Troy. An Bord Pleanála is an independent appeals body, which means the issue of conflict is less powerful because the matter has to be appealed. On the issue of whether the rights of residents are provided for in the Bill, probably not. I presume the regulator will be tasked with ensuring balance in terms of the rights of the nation, the rights of the airport authority and the rights of residents but we do not propose to write those rights into legislation. We do need to ensure there is balance and to make determinations around restrictions on flights or other ameliorating measures.

Whichever body is chosen will be authorised to immediately recruit expertise because there is no body in the country that has on hand the full expertise on noise regulation.

Chairman

When will the recruitment process commence?

Deputy Shane Ross

It will commence immediately.

Chairman

In anticipation of the legislation being passed, it is wise that it would know exactly what staff it needs in terms of its skills base and knowledge.

Deputy Shane Ross

The Chairman is correct. We will not be waiting for the legislation to be passed. People will be recruited in anticipation of that.

Chairman

I thank the Minister.

Senator John O'Mahony

In response to my question, the Minister said that the regulator may decide on the noise levels. In other words, the regulator may uphold the current restrictions. The Minister also said that this is unacceptable. Am I correct that he is saying that he cannot allow a situation whereby the progress and growth of Dublin Airport would be compromised?

Deputy Shane Ross

Yes.

Senator John O'Mahony

The Minister is referencing a bottom line and also pointing out all of the trapdoors along the way. Is there a predetermined outcome?

Deputy Shane Ross

No.

Senator John O'Mahony

Is there a preferred outcome and can it be guaranteed?

Deputy Shane Ross

No.

Senator John O'Mahony

It cannot. Consequently, as per the fears of the chairman of the DAA, we may end up with a second runway with all types of restrictions and less throughput of passengers.

Deputy Shane Ross

The noise regulator is independent and it can decide what independents do. We cannot put pressure on them or tell them what to do, etc.. It will be working within the confines of an EU directive. That directive states specifically that restrictions are a last resort. It is not anticipated that this will be the first choice at all. We may be right but we may be wrong. Restrictions are not regarded in the EU directive as the first port of call. If I were to anticipate, I would anticipate that it would look strongly at the restrictions already in place. I do not propose to second-guess what the regulator will decide because that would be irresponsible and wrong but it will be working within the confines of the EU directive which, to put it in its bluntest form, is a pro-airport directive.

Chairman

There would have to be significant mitigation in regard to people who have reasonable objections as well. It cannot be that we are implementing this and that is it. There is due process and if it can be mitigated it should be. That is the key point.

Deputy Shane Ross

The rights of residents are vital.

Chairman

The national interest comes first but residents and others are entitled to mitigation and full and independent consideration of their objections notwithstanding the overriding and overarching policy issue.

Deputy Shane Ross

Mitigation measures are front-of-house in this matter.

There is no way that anybody is being asked to override the rights of residents at all. We are talking about a balanced approach with mitigation measures being really upfront. The balance of that is that the national interest must also be protected and promoted.

Chairman

It is of course. I call Deputy Troy.

Deputy Robert Troy

I suppose therein lies the problem. Because of the delay we know the DAA will make an application to the new competent authority when it is established on these two planning conditions but we do not know what the outcome will be and because of the delay in appointing the competent authority, there is a knock-on delay in making that application and in knowing the outcome of that application and the potential of an appeal regarding it. Because of the inexplicable delays at the Department's level, there have been knock-on consequences over which we have no control in terms of the timeline and it could lead to serious negative consequences for the airport, we simply do not know.

The Minister has pointed out that the 18 months was not his fault and that it was legal opinion that changed at the 11th hour. I looked back, however, on a question I asked the Minister in the Dáil last September and at that stage it was clear, because for the first time he did not reply saying that he would have legislation within weeks. At that stage he was reviewing the process on the competent authority and he did not refer to the IAA. Almost 12 months have elapsed from when the Minister was aware that the IAA was not going to be appointed and we still do not have draft legislation. I ask again when the Minister was advised the IAA was no longer a runner.

Early this year, when we got the briefing from the Minister's officials, for which I thank them, the Minister indicated strongly that he would have this legislation debated in the Dáil before the summer recess. Is he satisfied there has been a further delay, even with the appointment of Fingal County Council? I take the point that the Minister said that Fingal County Council can now start employing the necessary expertise and that is welcome. Does the Minister think there is merit in him signing a statutory instrument appointing Fingal County Council to give it the certainty that there will be no further changes and that could be backed up by the legislation when it comes into place in the autumn? He stated he has met the residents groups on a number of occasions and I acknowledge that but on the other side of the debate, how many of the bodies and CEOs has he met in trying to advance this process? Does he believe it will be an independent unit within Fingal County Council or will it be based within the planning department?

The Minister keeps citing the complexities in this regard. I am open to correction but my understanding is that as of November of last year, 13 of the other 27 member states had their competent authority appointed. They received the same notification as we did. Is the Minister satisfied that 13 countries could have it done last November and we could not?

Chairman

Does Deputy Munster wish to come in?

Deputy Imelda Munster

As I said to the Minister earlier, when he said in his statement that he felt it made sense for the IAA to be appointed as the airport noise regulator, he cannot blame people for being concerned now if his thoughts on that proved to be wrong, given the legal advice that stated that the appointment of the IAA could have been subject to legal challenge. It is now widely felt he then appointed Fingal County Council in haste, given the delay that ensued up and until he got the legal advice on the IAA. It is clear from what the Minister has said that Fingal County Council does not have the expertise for this specialist area. It has the same knowledge and information as every other local authority but that is all it has. On the importance of an independent regulator, I note it is in receipt of 8% of its funding. While the Minister has stated 8% is low compared with 92%, 8% of any local authority's funding is substantial and given the legal advice on what could have come from appointing the IAA, it is important that any body or competent authority that is appointed be completely independent and not in any way reliant on funding in such a way that its judgment could be swayed or it could be seen not to be entirely independent. That is a real concern and the Minister has not really answered it in any specific detail. I wonder if he can be clearer on that because it is a worry.

Deputy Shane Ross

On the issue of the legal advice, I received it last September and I advised the House of that at the very earliest opportunity. I cannot remember the date off hand but it was the earliest opportunity after that legal advice had been given to me.

On Fingal County Council having the competent authority as a separate unit, we are determined on one principle alone, namely, that Fingal County Council does everything to ensure it is both independent and seen to be independent and if a separate unit is necessary, then that is a good idea. I assume it will do that. It is an internal decision for it but when that sort of independence is required, I would have thought that Fingal County Council will decide to do that and I would be very surprised if, building on its experience in dealing with the airport's development in the past, including noise issues, we did not get a decision where there was a single separate unit. I do not know, as Fingal County Council will decide internally. It would be correct for me to question-----

Deputy Robert Troy

The Minister has the power to ensure they do.

Deputy Shane Ross

Yes-----

Deputy Robert Troy

In the context of framing legislation, nothing should be assumed. The Minister is the responsible person.

Deputy Shane Ross

That is correct. I would ask questions if I thought there was any question of Fingal County Council's independence being compromised.

Chairman

If we had concerns we could write to Fingal County Council and ask it to give us its view. It is hugely important that it would have total and absolute professional confidence and any advice that it might need to second in or any skill or knowledge it might need to purchase in for the period during which the decision is being made.

Deputy Shane Ross

I would assume that and I will certainly take that on board. I would be very surprised if it did not but if it does not I will ask questions about why not.

That is perfectly reasonable. We have received advice from the Attorney General that a statutory instrument will not be necessary and Fingal County Council is not looking for one.

Is that everything from the Deputy?

Deputy Robert Troy

No. I asked what had caused the delay of 11 months in the IAA. I accept that there was a need for legal advice. That is not a problem. However, the Minister has confirmed that he was aware last September that he could not proceed with the IAA. We were informed of this closer to Christmas and brought in for a briefing on Fingal County Council, I think in the first week of February, by departmental officials. At that stage we were informed that the legislation would be brought before the Oireachtas before the summer recess. What is the reason for the delay? Why is it that, as of November last year, 13 of 27 EU member states had appointed a competent authority, but we still have not?

Deputy Shane Ross

We have addressed the reason for the delay up to November last year. It was because the Attorney General was taking time with the advice. In January the Government agreed to support the building of a new runway. It acknowledged the serious commercial risks for the company as identified by the DAA, to which I communicated to confirmation of the Government's intention to implement Regulation No. 598. I said I would publish the policy statement. What has happened since the Government's decision in January is that there has been a great deal of communication between the various Departments involved. My Department has been working with the Department of Housing, Planning and Local Government, the Department of Communications, Climate Change and the Environment, Fingal County Council and the Office of the Attorney General to agree on the process to be followed to ensure compliance with Regulation 598, about which I have told the committee today. More recently, a group of senior officials was convened, chaired by the Department of the Taoiseach, to co-ordinate and prioritise the delivery of the north runway project and prepare for the drafting of legislation as expediently as possible.

Deputy Robert Troy

When was the group formed?

Deputy Shane Ross

I think it was in June or perhaps May - in the last month. The group has been working through the details as quickly as it can. We have a tight but constructive timetable. It is very complex. It is extremely difficult for all of the Departments to do, but we now have a timetable which I have laid out before the committee which will be kept to, give or take a week or two here or there. It is perfectly viable and will deliver on time. The Deputy is right about the delays while waiting for the Attorney General's advice. It was extraordinarily inconvenient and has left us in a much more difficult position. However, we are working at full speed and with a great sense of urgency. The committee can see that the timetable I have set out is workable and provides sufficient time to deliver the runway on time and also to deliver the noise regulator in time to make new regulations for it.

Deputy Robert Troy

We are coming in at the eleventh hour. My party and I want to work with the Minister and his officials to deliver this project because it is in the national interest. This is not a cheap political shot, but we are here because of inaction and delays. The Minister has not prioritised the issue. He has prioritised work in other Departments which has taken his focus away from his own job. It is remarkable that he has come here today and it appears that the Department of the Taoiseach is taking the lead. Is that an indication that the Minister or his Department do not have the Taoiseach's confidence that they can deliver? My understanding is it has to be done by September. There is a deadline in September for the establishment of the competent authority.

Deputy Shane Ross

I reject what the Deputy has said. It is nonsense. It is a political charge and I am not going to answer it.

Deputy Imelda Munster

The Minister did not provide an update on the process of separating the safety regulation from the IAA to bring it under the Commission for Aviation Regulation. There was a process under way. I seek an update on it.

Deputy Shane Ross

What was the question? I am sorry, but I think I missed it.

Deputy Imelda Munster

I was fearful that the Minister had originally said he thought it made sense for the IAA to be the noise regulator, but the advice was that that would have been open to legal challenge. I have asked how we can have confidence that the Minister now feels it should be Fingal County Council which has no obvious or specific expertise in this specialised area other than the in-house expertise any local authority has. In circumstances in which the local authority receives a certain percentage of its funding from airport traffic, it could be compromised as an independent regulator and decision-maker. Surely, the body tasked with making decisions should not in receipt of any funding.

Deputy Shane Ross

The authority is not compromised because this is a levy and it is not compromised because it is a small amount.

Deputy Imelda Munster

It is only 8%, but 8% of any local authority's budget is a substantial amount.

Deputy Shane Ross

It is a significant amount in that context, but how would there be any leverage if it is a levy? How would it give the DAA leverage? It is not up to the DAA to state it will not pay it. It is not going to take that attitude.

Deputy Imelda Munster

Fingal County Council's point of view might be that being in receipt of such funding meant that it was not entirely independent in its decision-making.

Deputy Shane Ross

I do not accept that local authorities are somehow in the pockets of those who pay rates when they are imposed-----

Deputy Imelda Munster

That is not what I said. I said it gives one a feeling.

Deputy Shane Ross

May I finish? The Deputy interrupts me a great deal, whereas I just let her go. I do not accept that local authorities are in the pockets of their ratepayers. I have never accepted that and have no intention of accepting it. It would be easy enough to pick a hole in every local authority and say it was conflicted in every way in everything it did. In this situation the DAA is paying 8%. While it is a significant amount, the idea that the local authority would state it had to bow to the wishes of the DAA does not hold water when it is a levy.

Deputy Imelda Munster

That is not to say every local authority has been appointed as the competent authority as Fingal County Council has. That is the difference.

Chairman

The Minister has answered the question.

Deputy Imelda Munster

It comes back to the fact that the Minister originally felt it made sense to appoint the IAA, but that was the wrong decision.

Chairman

The legal advice indicated that the Minister could not hold that line and, therefore, he had to go to the next qualified-----

Deputy Robert Troy

The Department of the Taoiseach is now running the cross-departmental process.

Chairman

The Vice Chairman wishes to comment.

Deputy Kevin O'Keeffe

We appreciate that operational procedures and controls have to be put in place. Planning permission was originally granted in 2007, but ten years later, we are still waiting for by-laws to be put in place. From an operational point of view, throughput passenger capacity in Dublin Airport in June was over 3.1 million, a 7% increase on the number in the same period last year. If we continue to have one runway while experiencing continuous growth, will the DAA have to tell airlines that want to come in or existing carriers that want to increase the number of routes that the airport has reached maximum capacity? Can the Minister or his officials project the date on which that will arise? Will it take four or five years? If Dublin Airport does not have a second runway, when will maximum passenger numbers be reached in the growth period?

Some 14.7 million passengers passed through the airport in the first six months of the year, a phenomenal increase on the number in the same period in 2017. The economy is booming and more people are travelling into and out of Ireland. If the runway project is not progressed according to schedule, when will Dublin Airport reach maximum capacity such that the terminals will not be able to cope with more passengers?

Deputy Shane Ross

I understand the fears outlined by the Deputy in terms of it being an economic catastrophe, in the words of the chief executive of the DAA, if the second runway is not built. Although that is very colourful language, there are real dangers if the runway is not built. There is a build-up of traffic at Dublin Airport such that one or two delays may cause congestion, which emphasises the seriousness, urgency and importance of the runway project. Capacity at Dublin Airport is a serious issue. The Department and the DAA were somewhat taken by surprise by the sudden spike in passenger numbers. In 2007-08 the DAA did not act on the extant planning permission because of falling passenger numbers. It is very important that there be no reduction or dilution of our commitment to the project. I thank Deputies Robert Troy and Kevin O'Keeffe for their commitment to it; it is a national imperative. We must not tolerate unacceptable congestion at Dublin Airport because it is of such importance to trade, tourism, prosperity, employment and other matters in the State. The runway project is being pursued as an imperative and we do not see it falling behind schedule or not happening in any circumstance.

Deputy Kevin O'Keeffe

The Minister mentioned congestion. There is congestion at Dublin Airport. When will it become intolerable such that the airport will cease to function? When will the existing runway reach capacity? Could the Minister delay the project for two years? Perhaps "delay" is the wrong word.

Deputy Shane Ross

I do not wish to delay it and will not do so.

Deputy Kevin O'Keeffe

I will rephrase my question.

Deputy Robert Troy

The Minister has delayed it for two years.

Deputy Shane Ross

Is Deputy Kevin O'Keeffe asking me to delay it?

Deputy Kevin O'Keeffe

No. Within what timeframe must the Minister ensure the runway is operational in order to avoid the airport becoming over-congested?

Deputy Shane Ross

The timetable I set out in my opening address is clear that the runway should be built by March 2021 and operational six months thereafter. The noise regulator should be appointed according to that timetable and be in operation, have made a final determination and concluded all appeals before the runway becomes operational. If that happens, as we are determined to ensure it will, we will have gone a long way towards relieving the current and potential congestion at Dublin Airport to which the Deputy referred.

Deputy Kevin O'Keeffe

What about judicial reviews which may be lodged by affected property owners or other objectors?

Deputy Shane Ross

The legislation will specifically stipulate that the determination will remain valid during ongoing judicial reviews, appeals or other court cases.

Chairman

The determination will remain valid, notwithstanding the outcome of such appeals.

Deputy Shane Ross

Notwithstanding the fact that appeals are ongoing, the determination will be in operation.

Chairman

It will proceed. Does that mean that work will commence, regardless of-----

Deputy Shane Ross

Work has commenced.

Chairman

It will continue while appeals are ongoing.

Deputy Shane Ross

I am referring to appeals in the period from 31 December 2019 to 31 December 2020.

Chairman

I understand that, but I am referring to High Court appeals.

Deputy Shane Ross

The determination, once made in December 2019, will remain valid until ongoing appeals are decided on.

Chairman

I agree with colleagues that it is clearly of great importance that the legislation be progressed as quickly as possible. On behalf of all members present, if not the entire committee, I ask that the Minister advise us of any issue which may arise, as he is doing, and ensure the legislation will be brought forward in September or as soon as possible thereafter. Let us get going at this. Due process must be followed, but it will be very difficult to meet the deadline.

Deputy Shane Ross

I agree with the Chairman. However, the timetable was accepted by the Cabinet this week.

Chairman

I accept that. I am offering support in progressing the legislation.

Deputy Robert Troy

We could dance around the issue all day, but the Minister has not satisfactorily explained the delays which have occurred, even since the appointment of Fingal County Council as noise regulator, why 13 other countries had appointed a competent authority as of November last year and we have not yet done so, or whether he has met the chief executive of the DAA. He does not see a need to meet the chief executive of Fingal County Council, in spite of the fact that he is to meet the affected residents associations. He should meet everybody or nobody. We have grave reservations about the process, but we see the need for it and will work with the Department to deliver it. I take heart from the Minister stating the Department of the Taoiseach will take the lead in the cross-departmental group.

Deputy Shane Ross

Nobody has taken the lead in that way. The Department of the Taoiseach is obviously very interested, as are other Departments.

Deputy Robert Troy

The Minister said it was chairing the group.

Deputy Shane Ross

We want to include every relevant Department and will continue to so do. Such involvement is extremely welcome.

Chairman

The matter has been fully discussed. Deputy Robert Troy asked a question about a Brexit issue in the earlier session which he may wish to revisit.

Deputy Robert Troy

On the open skies policy and in the context of the bilateral agreement between Ireland and Egypt, what preparatory work is being undertaken by the Department on air connectivity between Ireland and the United Kingdom in the event that there is no agreement on Brexit?

Deputy Shane Ross

Extensive talks at all levels have been ongoing for several months and have considered all possibilities. The implications of Brexit for aviation are extremely serious and are being dealt with as such by the Department which has a dedicated Brexit unit. Aviation is its top priority because connectivity may be the most important aspect for this island. The European Commission has been made fully aware of the implications of Brexit for Ireland in the context of aviation. We have contingency plans if there is no deal and to cover every other possible contingency. I am absolutely confident the matter has been and will be fully addressed.

Chairman

I raised a particular road safety issue with the clerk to the committee. It was reported in an article in The Irish Times that drivers who failed a Garda roadside impairment test could not be required to provide a blood or urine sample owing to an error in the legislation. That is an urgent matter of concern for many involved in road safety. Will the Minister update the committee in that regard?

Deputy Shane Ross

With regard to the issue of the impairment tests and the problem with-----

Chairman

It should be in the Minister's correspondence.

Deputy Shane Ross

Impairment tests in road traffic cases are tests such as walking in a straight line or touching one's nose which can be used to indicate if a person is under the influence of an intoxicant. If a person refuses or fails to take an impairment test, the intention of the law is that gardaí will have the option of conducting a preliminary oral fluid test for drugs and also the option of taking a specimen of blood for evidential tests for the presence of intoxicants. The Irish Times, which the Chairman referred to, published an article on Monday, which said that due to a drafting error in the legislation, gardaí could not take the oral fluid specimen or a specimen of blood in these cases. This is true but it is not exactly news. It has been in the ether for a long time.

Impairment tests were introduced in 2014 based on section 11 of the Road Traffic Act 2010, which was amended in 2014. In 2016, section 11 was once again amended. This had the effect of changing the subsection numbers within section 11. As a result some cross-references to this section were no longer accurate and had to be changed, a fact which came to our attention in 2017. One area where this impact was felt was in regulations relating to impairment tests. I rectified this by revising the regulations in August 2017. The other area of impact was that referred to in the article. Cross-references in sections 13A and 13B of the Road Traffic Act 2010 now refer to the wrong subsections of section 11. Rectifying this means amending those cross-references, which requires a legislative amendment by the Oireachtas. I included amendments to make these corrections in the Road Traffic (Amendment) Bill 2017. The passage of the Bill was excessively delayed but has now passed the Dáil and I hope to see it pass the Seanad next week.

Prompted by the coverage of this issue, we will further examine the matter to see if all issues have now been addressed and if there is more that needs to be done, we will do it as soon as possible. In the meantime, this error is not fatal. People who refuse or fail to take an impairment test can be prosecuted for that. The penalty is a fine of up to €5,000 and-or up to six months in prison. It is the same penalty as that for intoxicated driving. There is, in other words, a flaw to be corrected but no one is getting away with anything as a result. In other words, it is being addressed in legislation.

Chairman

The key point is that notwithstanding the issue here the Minister is addressing it and in the Bill that will be before the Seanad next week, if there are any issues that arise in the interim-----

Deputy Shane Ross

It is in the Bill.

Chairman

It is in the Bill and the Minister is satisfied it will be covered. Will it have to go back to the Dáil?

Deputy Shane Ross

No, it is in the Bill.

Chairman

The Minister is satisfied it is in the Bill. We have dealt with everything but a Deputy arrived after-----

Deputy Darragh O'Brien

I will be very brief.

Chairman

I understand that but I do not want to reopen a discussion that has concluded.

Deputy Darragh O'Brien

Bhí mé ag féachaint ar an teilifís so chuala mé freagra an Aire. I will not detain the Minister because my party spokesperson, Deputy Robert Troy, and Deputy Kevin O'Keeffe have detailed some of the issues we have. As the Minister and his officials will know, for a long number of years I and my party have supported the development of the airport and the second parallel runway. There is no issue there and we are not saying this should not happen.

I have come here to ask the Minister a couple of quick questions. We had a briefing with officials a number of months ago on the legislation. The Minister outlined a very tight timeframe, which concerns me. First Stage of the Bill in the Dáil will be taken on 7 November. He is saying the Bill will pass the Dáil and the Seanad and be signed by the President, whoever that may be, on 31 December 2018. For very detailed legislation such as this, the timeframe from 7 November to 31 December is very tight. Is the Minister confident he will meet it? We have not met any of the timeframes up to now.

I am not a member of the committee and I thank the Chairman for his indulgence in allowing me to speak briefly. I place on record our grave disappointment that the Irish Aviation Authority is not the competent authority. I do not accept the advice the Minister has been given that he would not be able to create Chinese walls within the IAA to allow it to be the regulator. It should be the competent authority because it has the competence and staff to do the job. It has the salary structure to enable people to be hired to do the job.

I have great regard for Fingal County Council, a very progressive local authority which some of the Minister's officials will know very well. I have major concerns the council will not be resourced properly and does not have the expertise to perform this very serious role. I will live under the flight path of the new parallel runway and I accept that but we want to ensure residents' views and concerns are taken into account and the regulator is independent. Fingal County Council collects 22% of its rates on the Dublin Airport campus.

Chairman

It is 8%.

Deputy Darragh O'Brien

I do not know where the Chairman got that figure.

Chairman

We got it from the Minister.

Deputy Darragh O'Brien

I ask the Minister to check the figure. If one looks at ancillary businesses-----

Chairman

The figure is from the DAA.

Deputy Darragh O'Brien

I have no doubt the Minister's figure significantly understates it. Leaving that aside, while we may be able to accept that officials in Fingal County Council will adjudicate on the two planning conditions, it will be difficult for residents, including me, to accept it is an independent authority overseeing conditions imposed on it by the board which it did not impose itself. People will not accept that. We want buy-in from people and the Minister was good enough to meet and hear the concerns of a number of groups last year with me and other colleagues. They did not say they did not want a second runway or development at the airport. They said they wanted the airport to be a good neighbour. We are being sold a pig in a poke.

Will Fingal County Council be the noise regulator for Shannon Airport and Cork Airport? We will have a different regime with three different regulators on an island with the same population as Manchester. That does not make any sense.

The Taoiseach has set up this cross-departmental group and I am still at a loss to see exactly how it will work. Who will lead it? Will it be the Taoiseach or the Minister?

There is no way the Minister will meet the timeframe of the end of December. More than 17,000 people are directly employed at Dublin Airport and its campus and there are tens of thousands of indirect jobs. Many local people recognise that the airport generates 4% of GNP. We are very proud of our airport and the work that is done there. The Minister's and Department's stewardship of the development of the second runway and securing buy-in from the local community leaves a lot to be desired. We brought people along with this process, which I have been dealing with since 2004 when I was elected to the council. They are now very concerned about the ham-fisted manner in which the issue is being dealt with. This will put jobs in the airport and its future development at risk. We will not get an independent regulator.

The Chairman has been here all morning. I came in at the very end because I was at other meetings. The Minister will not meet the timeframes outlined here and it is fantasy to say he will. We are putting at risk the jobs in the airport and the potential of the airport. We are putting at risk the communities adjacent to the airport who have bought into the need to develop the airport. I do not understand why this cross-departmental group has been foisted on the Minister. According to the timeframe, he will publish the Bill on 7 November and it will pass both Houses and be signed by the President by 31 December. That is fantasy.

Chairman

I thank the Deputy for articulating his views. Many of those questions were answered earlier.

Deputy Darragh O'Brien

I apologise if they were. I will read them in the Official Report.

Chairman

That is fine. I am sure the Minister would like to respond in kind.

Deputy Shane Ross

I thank Deputy O'Brien for coming to the committee to make a contribution, most of which did not involve questions but was rather an expression of his views. That is fair enough. His views are very useful. Bearing in mind the constituency he represents it is an honourable position for him to take, and that is what he should do. I do not share the views but that is neither here nor there. As he is aware, however, I have met many delegations of residents, taken their views into account and relayed them to the DAA and to other appropriate people and institutions. I will continue to do that if he believes that is useful because this is about a balanced determination which has to take into account the overall national interest and the interests of his constituents. That is what will be done and, contrary to what the Deputy said, it will be independent. I have no doubt about that. I know the Deputy has a high regard for Fingal County Council, as I do. The issue of staff at Fingal County Council, which he raised, was covered several times when the Deputy was not present.

Deputy Darragh O'Brien

If it has, I apologise.

Deputy Shane Ross

That is fine. I am just laying it out for the other members. Staff will have to be recruited at Fingal County Council because it does not have all the necessary expertise. However, that would also have had to happen if the Irish Aviation Authority, IAA, had been made the responsible authority because it did not have the staff either. There was not a body in Ireland waiting for this particularly specialist call on noise regulation. There is not such a body in existence anywhere. People have to be recruited to do it, and they will be recruited for Fingal County Council, but they would have to be recruited also for the IAA.

Deputy Darragh O'Brien

It would have fit better with the IAA rather than a local authority.

Deputy Shane Ross

On the proportion of its income from rates Fingal County Council collects from Dublin Airport, which is 8%, the Deputy indicated the correct figure is 22%.

Deputy Darragh O'Brien

It is.

Deputy Shane Ross

The Deputy can say it is 22%. These figures were provided to me by Fingal County Council. If he doubts them, that is up to him.

Regarding Shannon and Cork airports, under this directive they do not have to be regulated by this noise operator because the requirement is 50,000 movements and Dublin is the only airport in Ireland which comes under that category.

I accept the Deputy's reservations about the timetable. This timetable was accepted and approved by the Cabinet last week. The Deputy is right that it is tight but we are determined to keep to it. I hope we will have the support of the Opposition for getting the Bill through quickly. It is extremely urgent and we expect the Opposition will recognise its importance and urgency.

Chairman

The members are fully behind-----

Deputy Shane Ross

I know.

Chairman

-----pushing the Bill through as quickly as possible.

Deputy Darragh O'Brien

I was never populist in my constituency about this issue. I stood in elections when other people were out campaigning against a second parallel runway. I want to be clear that I was supportive of it and have remained supportive.

Deputy Shane Ross

I have no doubt that the Deputy has been very responsible about it.

On the senior officials group chaired by the Taoiseach, there are similar groups for other issues of national importance. It is an appropriate group to be set up. An official briefing will be held on this tomorrow for the Deputy and others if they wish to attend it.

Chairman

I thank the Minister, his officials and the members.

The joint committee adjourned at 12.45 p.m. until 12 noon on Wednesday, 18 July 2018.