We are resuming on section 3. Before I take it I would like to remind the House that on the printed list of amendments, the heading section 7 should appear after amendment No. 7. Amendments Nos. 8 and 9 are to section 7 and not to section 6. I have also arranged updated lists of groupings of amendments to be circulated. If any Senator is confused as we go along please ask me. Senators have before them the groupings of amendments and the position on 15 March.
Local Government (Water Pollution) (Amendment) Bill, 1989: Committee and Final Stages.
Question again proposed: "That section 3 stand part of the Bill."
Question put and agreed to.
SECTION 4.
I move amendment No. 3:
In page 4, line 31, to delete "may" and substitute "shall".
This amendment relates to section 6 of the Principal Act which deals with regulations for the purposes of section 4 and section 8 of the Principal Act. Basically, section 4 deals with the licences for the discharge of trade and sewage effluent into water. Section 8 deals with appeals against this. The amendment seeks to provide that section 4(2) of the new Bill would read:
(2A) Regulations under this section shall make provision for—
(a) the payment to a local authority of a fee of such amount as may be specified in respect of an application to it for a licence under section 4, and
(b) the payment to An Bord Pleanála of a fee of such amount as may be specified in respect of an appeal to it under section 8,
Basically, this amendment was put down because we believe it strengthens the section.
I simply want to say that the more positive word "shall" would be much more effective in the legislation.
This matter of deleting the word "may" and substituting the word "shall" arises on many occasions. The word "may" is used to give the Minister discretion to act or not to act. I consider it more appropriate that section 4 of the Bill should seek to provide general enabling powers in relation to regulations and the payment of fees for licence applications rather than to impose a rigid obligation on the matters to be addressed by such regulations. The charging of fees for services is now a normal feature of the public sector. The provision in the Bill is intended to allow local authorities to offset some of their costs in processing licence applications by charging fees determined and prescribed by the Minister.
Substantial costs may be incurred by local authorities in processing such applications, depending on the nature of the effluent discharge and the complexity of the production costs involved. I can assure Senators that it would be my intention to bring forward regulations at an early date on the payment of fees to local authorities in respect of licence applications made under section 4 of the Water Pollution Act, 1977.
The provision regarding the payment of fees for appeals to An Bord Pleanála will similarly tend to offset what can be substantial costs. In fact, a fee of up to £36 is payable for appeals at present under the Local Government (Water Pollution) Fees Regulations. The Water Pollution Act specifically making provisions in relation to the payment of fees for appeals, which is provided for under section 4 of the Bill, is intended to consolidate and simplify the statutory basis for the charging of the fees. Perhaps in those circumstances the Senators might agree to the withdrawal of this amendment.
Following the assurances given by the Minister I am quite happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
NEW SECTION.
I move amendment No. 4:
In page 5, before section 5, to insert a new section as follows:
"5.—Planning permission for developments on sea water within the distance of 3 miles from the nearest shore line shall be required to be obtained from the relevant Planning Authority in whose functional area the said shore line is situated.".
I am confident the Minister will have no difficulty in accepting this amendment. I put it down because I believe it is a matter which should be governed by planning permission. I have particularly in mind the developments of fish farming cages and other apparatus associated with fish farming. There should be planning control on this matter because of the danger of pollution of beaches and damage to scenic amenity areas, particularly areas of high scenic amenities like Connemara, and indeed the Minister's own constituency, west Mayo. The Minister is well aware of one location I have in mind, the beautiful Killary Harbour which divides his constituency from my own. The developments there are, to say the very least, damaging to the scenic amenity. If one travels the road from Letterfrack to Leenane along the beautiful Killary coastline for about three miles, one sees all types of irregular cages, boxes and floats destroying what is probably the most scenic area in Connemara and indeed in Ireland. We as a county council on either side of Killary have no say in what goes out there because those matters are not subject to planning permission.
I am asking the Minister to accept this amendment because I believe it would give a guarantee to the planning authorities of the area that no such irregular developments could take place in their area and that those developments could be controlled by the planning laws. If along that area a farmer wanted to erect a bungalow or a sheep shed he would be subject to planning law regulations. In fact, from my own experience in that area he would be refused planning permission on scenic amenity grounds. Yet, anybody driving along that road is naturally looking out on Killary so there is a serious case to be made.
There are other cases I could mention. Recently a licence has been granted to a fish farm development in Murvey Bay near Roundstone beside Dogs Bay and beautiful beaches in that area. These projects should be subject to planning permission from the local authority. The Minister should accept the amendment.
I am not entirely clear on the point the Senator is making and whether I should support it or not. Are his comments related to floating objects on the shoreline or are we actually talking about fixtures on the shoreline itself? Obviously those are entirely different matters because one would be related to county council planning permission and the other would not.
In relation to floating objects — I am open to the direction of the Chair on this — there is a serious problem in relation to pollution. I would be concerned with visual pollution rather than pollution of seawater. Senator McCormack was making the point that it has a visual impact on the landscape. There is an additional problem of course. In many parts of the country there are mussel raft developments on a large scale and mariculture development which in their own way are contributing to forms of inshore water pollution not covered in this Bill. As far as I am aware, county councils in the main do not have authority over matters off the shoreline. The high water mark is not subject in any way to planning permission as is referred to in the motion here. Senator McCormack's point is very valid, but I do not know if it is covered in this Bill.
Section 5 amends section 7 of the 1977 Act. It is a good amendment. Previously the local authorities could only review licences at a minimum frequency of three years, or otherwise only if licensees agreed to review. Now local authorities can review a licence at any time, given reasonable grounds for doing so. The grounds for such a review appear to be very comprehensive but there is apparent drawback. A system of fees is suggested for various types of review, but who pays the fee? Before a review can be carried out, the fee for it must first be paid. Therefore, if the licensee is the person to pay the fee and he refuses to do so, then the review cannot be carried out. Is this correct? If so, amendment No. 5 (c) needs changing.
An Leas-Chathaoirleach
We are on amendment No. 4.
I am sorry.
Senator de Buitléar is talking about the section. On the amendment, it would be inappropriate to attempt to cater in this Bill for an amendment which has as its purpose a revision of planning legislation. That is the thrust of the amendment that is down here. Senator McCormack is concerned about fish farming activities which are carried on at sea and I will be dealing with that in amendment No. 7 which is also proposed by Senator McCormack. I do not know whether it is appropriate to deal with that now, but it is planning legislation we are talking about and I will deal with it more comprehensively under that section. If you like, a Leas-Chathaoirligh I will do the two now.
An Leas-Chathaoirleach
No. It would be better to deal with section 5.
I am prepared to wait. Time is on our side.
An Leas-Chathaoirleach
Is amendment No. 4 withdrawn?
No. I cannot withdraw the amendment. Can we transfer the matter to amendment No. 7 if it is going to be dealt with under No. 7?
An Leas-Chathaoirleach
No.
In that case we had better be more careful. I did not know that we had to actually dispose of it and wait for No. 7. I know the Minister may go into the matter more fully under No. 7, but if we wait and lose the amendment by passing on to No. 7 we will be closing the stable door after the horse has bolted. We will have to deal with section 5 now and this amendment. The Minister says it is a separate matter but I think it is a most reasonable request. I understand that in Scotland where some of the snags and problems relating to fish farming have been discovered recently, legislation has been introduced whereby planning permission is required for any development within a two to three mile distance of high water mark. Apart from the scenic amenity I am concerned about it from the point of view of the danger of pollution of beaches and inlets as a result of those developments. The local authority who will be the body responsible for following up those matters ought also to have responsibility for structures in the sea within that distance from land. They should also have responsibility for whether or not planning permission would be granted and the conditions that would attach to those and the order in which they would be kept after permission is granted. From that point of view I cannot lose the amendment now and I am prepared to debate it with the Minister now if it is necessary.
The position is that the Senator is speaking on his amendment No. 7 about licensing of the type of operation he referred to. In this amendment to section 5 he is really talking about revising planning legislation which is not appropriate to what we are talking about at all. Under the question about the amendment dealing with licensing I will talk about that but as far as I am concerned what the Senator is suggesting here is not relevant in so far as planning permission is not an appropriate matter to refer to at this time.
If planning permission or controls of planning can lead to pollution, this is what this Bill is about. I take this as a reasonable opportunity to have every safeguard put into this legislation so that we could have control over any matter on the sea or near the coastline that would be likely to cause pollution. Even though the Minister says he will deal with it in planning legislation I think it is a matter we should include in this Bill and I think it is a reasonable request that we provide in this Bill that those developments would be subject to planning permission. I put this amendment down so that local authorities would have some control over likely causes of pollution within their areas.
I do not want to be misunderstood. I did not say that I was going to deal with it as a planning matter at some later time. The question is dealt with quite adequately as far as I am concerned under marine legislation, 1980. It is not appropriate to deal with this matter now in so far as revision of the planning legislation is concerned and in so far as it affects this type of operation to which I presume the Senator is referring, such as fish farming and aquaculture of various kinds. I must ask the Senator to consider withdrawing that. We can deal with the question of licensing and the appropriateness of how that is done and the safeguards it provides in regard to pollution — which I take it is the principal reason the Senator is advancing it anyway — under existing marine legislation.
I am not at all satisfied that it is dealt with adequately under the marine legislation of 1980. I am a member of a local authority and therefore a member of a planning authority and it is not in the control of that planning authority. The planning authority do not give out licences. If I felt the matter was dealt with adequately in the marine legislation of 1980 I would not have put down the amendment here nor would I be pursuing it. This is an opportunity for us if we are serious about guarding against pollution to see that under the legislation planning permission would be required for such developments and that it would have to be obtained from the relevant local authority. That is the only way in which the local authority or the people of the area can have a say in what developments take place along their shoreline.
All I can say in response to that is that there is sufficient law there to deal with this matter. In very exceptional cases, I might add, where there is extreme pressure, the Minister could under the Local Government Reorganisation Act, 1985, make an order to extend the maritime jurisdiction of local authorities for certain purposes. There is no question of needing extra legislation to do so; it is already in place if one were to decide to do it. There has only been one instance of that to date relating to Bantry Bay. The law is there if the Minister chooses to use it, if there were exceptional circumstances attached to what he is saying.
I do not accept that the law is there to protect the interest I am talking about. If the law is there, is the Minister satisfied with what he sees in the Killary Harbour area as he drives past it? It is like a battlefield left after a crowd of itinerants had pulled out. There are all kinds of irregular developments and cages. There is no doubt at all in my mind apart altogether from the possible pollution aspect that it has destroyed the scenic amenity of a beautiful area. We as a planning authority on each side of Killary — the Minister on one side and myself on the other — have no say whatsoever in what goes out into that bay. I am asking now that we should have a say in that. That is a reasonable request to make and I am pursuing my amendment on that ground.
Amendment put and declared lost.
SECTION 5.
An Leas-Chathaoirleach
Amendments Nos. 5 and 6 are related and may be discussed together.
I move amendment No. 5:
In page 5, line 29, to delete "may" and substitute "shall".
These two amendments deal with section 7 of the Principal Act which is concerned with the reviews of licences under section 4 of the Principal Act. Essentially we are talking about licences for the discharge of traders' sewage effluent into waters. When both amendments are taken together section 5 (a) (2) would read:
Notwithstanding any other provision of this Act or any condition in a licence under section 4, any such licence shall be reviewed at any time and no later than every three years by the local authority that granted it....
We are back to "shall" versus "may" again, and I will be interested in the Minister's response to this.
If the local authority have reasonable grounds for believing that the discharge authorised by the licence is or is likely to be injurious to public health, or renders or is likely to render the waters concerned, unfit for domestic, commercial, industrial use etc., it seems to me that that would be self-evident. If this is the case, surely the obvious thing to say is that we "shall" rather than we "may".
This is a good amendment. Previously, the local authorities could review licences at a minimum frequency of three years or otherwise only if licensee agreed to review. Now the local authority can review licences at any time given reasonable grounds for doing so. The grounds for such review appear to be very comprehensive but there is an apparent drawback. A system and fees is suggested for various types of review, but who pays the fee? Before a review can be carried out, the fee must first be paid. Therefore, if the licensee is the person to pay the fee and if he refuses to do so, then the review cannot be carried out. Is this correct? If so, then amendment No. 5 needs changing. Perhaps the Minister might clarify that.
This debate seems to take place on every section where "may" and "shall" arise, but it is enabling the Minister to have some discretion in the matter because he might not want to proceed for certain reasons. I will give a good example. In so far as section (2) (a) is concerned, it might be reasonable to expect "shall" to apply there in certain circumstances, but if one were to apply it to (b), (c) and (d), then it would be entirely inappropriate to use it because where a material change took place for the better, "shall" then would make a nonsense of him having to do things he did not want to do. It would not be right to do it in those circumstances because the material change would have been to the better. The same might apply in (c). Suppose there was an improvement, why then would the Minister be mandated to do certain things? He may do it if he so wishes but if it were going in the other direction and it was disimproving, then it would be proper for the Minister or the local authority to act in those circumstances. That is the basic reason for having "may" inserted in legislation. It gives discretion to the local authority, or to the Minister, whichever circumstances apply, to do whatever is necessary or proper in the circumstances that exist. If you think things are disimproving, then a good case is made for having "shall" but if things improve in certain circumstances, it will make a nonsense of having "shall". From a technical point of view that is the basic reason it is worded that way. Senator O'Shea recognised that in the past and I expect that he would again. That is the reason I am asking him not to pursue the question in regard to "may" or "shall".
Maybe the Minister would clarify for us who shall or may decide when a review is necessary and who shall or may order a review in that case?
It is as stated in section 5 (2) — the local authority.
I accept the Minister's explanation on this occasion and I will withdraw the first amendment. Obviously Senator Ryan may like to look at the transcript and form his own view on this particular amendment and may want to return on Report Stage. The Minister has not applied himself to the second amendment. I realise they are being discussed together, but we are taking them one at a time.
May I respond to a matter raised by Senator de Buitléar in regard to fees? While detailed consideration has still to be given to the nature of a system of fees for licence review, the intention is that fees would only be introduced to cover situations in which the review has been necessitated by the actions of the person making the effluent discharge into the water, for example, where there has been a material change in the nature of the volume of the discharge or where the licensee applies to have the licence reviewed. Non-payment of fees should not hinder the review process where it is necessary to review a licence on public health or environmental grounds, and the circumstances in which fees will be payable are expected to be quite limited, for example, cases in which the licensee applies for the review. I hope that answers the question raised.
If the county council do not want a review, can they withold the fee?
The licensee would have to pay then. That would get over the problem the Senator would foresee in that circumstance. The licensee would be obligated to pay.
On amendment No. 6, basically under the Principal Act the reviews would have to take place within three years. There is no such provision now and I would ask the Minister whether this is advisable.
Amendment No. 6 would require licences to be reviewed no later than every three years, irrespective of the particular circumstances involved. Their significance and the local authority's assessment of the need for review is important irrespective of what the situation was. I would have to oppose that amendment because of its failure to take account of these matters and because of the unnecessary and unproductive burden of work it would place on local authorities. I think the Senator will appreciate that in the circumstances I have outlined. Why put all that extra work on themselves? Every time I come here I hear how they are overtaxed doing this, that and the other. I do not want to create a situation where they have to do things, irrespective of how good or bad the situation is. If it is needed, it will be done; if it is not, why burden them with the effort?
I believe that is reasonable and I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
I would ask the Minister to remove the term "salmon rearing cages" and replace it with "aquaculture operations". This will require amendment to section 4 (2) (a) of the 1977 Act by deleting "marine structures".
Where is the reference to that in the legislation?
Section 6, amendment No. 7.
An Leas-Chathaoirleach
We have not reached that section yet.
I am premature in my request.
The Senator is premature in many things.
Section 5 agreed to.
NEW SECTION.
I move amendment No. 7:
In page 6, before section 6, to insert a new section as follows:
"6.—Notwithstanding anything in the Acts that salmon rearing cages located in the sea shall be required to be licensed under the Principal Act.".
I would have no difficulty in agreeing with Senator de Buitléar in substituting "aquaculture operations" for "salmon rearing cages". In this section we hope to tease out the controls in this area. I have failed with my amendment as regards requiring planning permission for this type of development. Now we will be able to see — and I will await the Minister's assurances on this — what type of controls we can establish to ensure that this development does not run haywire, as has happened in some cases.
I mentioned this matter already but I was ahead of myself.
That is a habit.
I asked the Minister to remove the term "salmon rearing cages" and replace it with "aquaculture operations". Am I still ahead of myself?
I think Senator de Buitléar is trying to move an amendment to Senator McCormack's amendment.
I am accepting that.
This is something new.
Amendment No. 7 to section 6 in the names of Senator Doyle and Senator McCormack refers to salmon rearing cages. Senator de Buitléar would like to alter the wording of that amendment.
If the House is agreeable that can be done.
I want to change the wording to "aquaculture operations" rather than "salmon rearing cages" because that only covers one area of fish farming.
I am happy with that.
Senator de Buitléar knows better than I do that aquaculture covers a multitude of activities. I would not like to think that we would be putting any further constraints in the way of fishermen. I have no objection to Senator McCormack's idea in relation to salmon cages but there are other activities in the aquaculture and mariculture areas, for example, the relocating of scallop beds and so on, that mariculturists are now getting involved in. I would be somewhat reluctant to enter into that realm of licensing.
Of course, the Seanad would have a more considered view if the Senator would leave that change until Report Stage. Would that help the Senator in any way?
We better leave it as it is then.
The normal way would be to change the wording on Report Stage. Are you withdrawing the amendment now?
No, we will stick with the amendment as it is down.
Are you withdrawing it?
No, the Minister did not reply. He told me he would tell me a lot about this matter when we got to it.
The Senator was certainly doing things in a new way.
Salmon rearing cages and other aquaculture activities located in the sea are controlled by the Minister for the Marine under the Fisheries Act, 1980. The procedure outlined in the 1980 Act requires the Minister to publicise his intention to make an order designating an area within which it would be lawful to engage in aquaculture in accordance with licences granted by him. The public may make representations or object to the proposed designation order. Usually a sworn public inquiry is held and the Minister decides whether to make the order and whether to include all or only part of the area initially proposed on examination of the inquiry report. The Act allows a period of 28 days after the making of a designation order during which appeals may be made to the High Court.
Aquaculture licences in respect of specific areas within the designated area are issued by the Minister for the Marine following detailed consideration within his Department, including examination by a special aquaculture licence vetting committee and consultation with other State interests. Where it is proposed to issue a licence the applicant must give notice in a local newspaper of his intention to engage in aquaculture and indicate that any objections should be submitted within 21 days to the Department of the Marine. Any objections received are considered before the decision on the licence application is finalised.
Conditions may be attached to licences, including requirements in relation to fish numbers, monitoring of the operation and its environmental impact and other safeguards. In view of the legislative controls at the disposal of the Minister for the Marine to deal with salmon rearing enterprises located in the sea I do not consider that it would be appropriate to introduce parallel controls under the Water Pollution Act, 1977. That would be duplication.
I must also point out that the licence control system available under the 1977 Act is intended to cater for fixed point discharge sources and would not be a suitable mechanism to deal with effluent and other waste arising from salmon rearing activities at sea.
I must oppose the amendment. Perhaps that explanation is a good indication of the existing control of licence arrangements, oral hearings and considerations that apply in all these matters. It does not require to be strengthened at this time.
I had better not refer to what has happened in the past because we have lost that amendment now anyway. I do not think there would be sufficient control from what the Minister has said. It is all right to say that areas have to be designated and licensed and that there has to be a period of 28 days in which to allow people to appeal and so on. We have now established that we have no control in local authority areas. In other words, this is a matter outside the control of local authorities. In these circumstances and in view of the fact that the other amendment relating to planning permission was not accepted, it would be reasonable to accept this amendment as a little safeguard to the rights involved. It is all right to say that conditions will be laid down as regards controlling the number of fish, monitoring and so on. In regard to controlling the number of fish, can one go out to the installations and count the number of fish that is in them? This is a vague, difficult area. Off the Galway coast I know of installations that have far exceeded the limitations placed on them when the licences were granted. As regards monitoring, who is going to carry this out? Who is responsible for monitoring the situation in those areas to ensure that the developers are not exceeding the guidelines laid down when they got their licences?
I do not wish to prolong the debate except to say that I would put it to Senator McCormack, in so far as the counting of fish is concerned, that if the Department of the Marine are not able to count the fish in the cage the local authority would hardly be able to do so. In so far as monitoring of cages is concerned, that is a matter for the inspectorate attached to the Department of the Marine. If one were to pursue the line suggested by Senator McCormack, you would be simply transferring the workings of the system that is in operation to the local authority. It does not seem a right thing to do as far as I am concerned. Senator McCormack would have to agree that the regulations and the legislation set down in so far as the granting of licences and the whole procedure regarding people's rights and objections are concerned, and right up to court proceedings, if necessary, are to say the least, adequate. To add another layer would be duplication and therefore I would have to oppose the amendment.
I am not satisfied that the regulations laid down are adequate because what I see happening — and I can only report here as a public representative who is aware of what is happening in my own locality — is that, for example, recently a licence was successfully granted for Murvey Bay, a sheltered bay near a beautiful beach, Dogs Bay near Roundstone, which I think the Cathaoirleach and the Minister are familiar with. I am not satisfied that the legitimate objections of people are being taken into account when those licences are granted. I am trying to introduce a little more security to ensure that that is done and that is why I am pursuing the amendment.
Amendment put and declared lost.
Section 6 agreed to.
SECTION 7.
Government amendment No. 8:
In page 8, lines 2 and 3, to delete "either or both of the following, that is to say:" and substitute "one or more of the following, that is to say:
(I) to terminate the entry or discharge within such period as may be specified in the order, or".
This amendment is required to ensure that the court has power to order the termination of the entry or discharge in addition to ordering a person to mitigate or remedy any effects of an entry or discharge of polluting matter or ordering him to pay costs of investigation, mitigation or remedial measures incurred by another person. This amendment is also required to ensure consistency with the new section 10 (5) which empowers a local authority to serve a notice requiring the cesser of the entry or discharge. It is a very important amendment and I recommend it to the House.
Section 7 amends section 10 of the 1977 Act. This is one of the better proposals in the new Bill.
We are on amendment No. 8 to section 7. You are speaking on the section.
Any person may now seek to mitigate or remedy any effects of entry or discharge but even more important the cost of the necessary investigations to establish the extent of damage done and the best approach for the restoration of the effected area are now covered and not just the cost of stocking.
You are on the section whereas there is still another amendment to be disposed of. Is amendment No. 8 to section 7 agreed?
Amendment agreed to.
Amendments Nos. 9, 17, 21, 23, 26, 31, 35, 36 and 38 are similar. Similar amendments 28, 33 and 39 are also related. We are taking all these amendments together, so if there is any confusion please ask me and I will help.
I move amendment No. 9:
In page 9, subsection (2), line 8, after "fine" to insert "exceeding £250 but".
There is a basic principle to all these amendments. In regard to conviction on summary offences, we are seeking that there would be a minimum fine of 25 per cent. Regarding the fines on indictment we are seeking that there would be a minimum fine of 10 per cent. The Minister may be aware that a number of convictions in my own county in Waterford over the past few years have concerned many of us as there have been inconsistencies between the various courts as regards fines. There was one case in County Waterford where a very large quantity of animal blood was dumped into a feeder river to a water supply and a £100 fine was imposed by the court. Fines like this are soul-destroying for the excellent people in our environmental department of the local authority who try to ensure the highest standards. When fines of this order are imposed by courts it is likely, I believe that people will continue to commit these offences. I earnestly request the Minister to take these amendments on board.
These amendments provide that a person shall be liable on summary conviction of an offence referred to in the sections in question to a fine of not less than £250 and where convicted an indictment to a fine of not less than £2,500. These amendments would constitute an unwarranted interference with the discretion of the Judiciary to deal with each case on its merits. I have the greatest confidence in the ability of the Judiciary to apply a sensible sentencing policy when dealing with water pollution offences and feel that the imposition of a mandatory minimum fine in such cases could lead to an unnecessary rigidity in the law. There will always be exceptional cases where particular mitigating circumstances exist which would justify the imposition of a small or even a nominal fine. For instance, if a person is convicted of non-compliance with a notice under section 12 of the Principal Act the fact that the person may be able to provide evidence that he has complied substantially with the terms of the notice in the interim between the issue of the summons and the hearing of the case might be such a mitigating factor. I cannot, therefore, accept these amendments.
It is also important to relate this to the question of expenses under section 28 where the full cost can be recovered. There are other sections of this legislation that deal as well with the possible amount of money that an individual might or might not have to pay but to tie down the Judiciary in the fashion suggested would be too rigid and would not allow for the exceptional circumstances that might exist. I would ask the Senator to recognise that.
I want to be constructive about the Bill. I acknowledged previously that I believed the Minister was making every effort to get the Bill into the best form possible. There are four incidents that I am aware of where fines were derisory. Can the Minister give me any encouragement that that type of fine will not continue to be imposed? I accept that we all have confidence in the Judiciary but I wonder sometimes do members of the Judiciary take such offences seriously enough when imposing fines?
Section 7 (8) (g) may answer the Senator's questions. It covers projected losses. It means that any consequential losses must also be made good. This might perhaps include losses due to reduced recruitment which would result from mortalities occasioned by the actual discharge.
The Senator mentioned some cases where he felt the fine was not substantial enough but I would have to draw his attention to other cases. A recent judgment was given of an 18 month jail sentence in a pollution case in County Cork. I do not know if the Senator noticed that in the recent past there has been a general increase in the penalties being applied by the Judiciary in matters connected with pollution and environmental matters. That is an indication from the Judiciary that they, too, recognise the new awareness that is required in so far as environmental protection is concerned. We have noticed in the Department that the level of penalty being imposed has increased quite substantially. We are making the point that there will be exceptional cases where, for whatever circumstances that exist, it might not be the right thing to do. In those circumstances we should not tie the hands of the Judiciary in applying their discretion. It has always been the case that discretion was allowed to the Judiciary in these matters.
Is the Minister saying that the experience in the Department, viewing the scene nationally, is that the Judiciary are imposing fines or jail sentences more consistently, fines that relate to the offence? For instance, there were two cases where industrial effluent was released into a bay in my area and two-figure fines were imposed. The effluent was 1,000 times the level permitted by the licence. I am concerned that the people who are employed by Waterford County Council, or indeed any county council, to impose standards should have the backing of the court, when they succeed in bringing people before the court, in having these people convicted.
I think I know the case the Senator is referring to. I keep an eye on these matters from an environmental point of view. It has been our experience, particularly over the last year or so, that the general level of penalty imposed by the Judiciary is substantially higher than heretofore. They had to take notice of the importance of certain aspects of life and they apply measures in accordance with that. I do not think we should be talking about how the Judiciary apply the penalties available to them under any particular legislation except to say that with environmental matters it appears there is a better understanding of the need to apply severe penalties and that is happening. I cannot go into individual cases but we are happy that the system is working properly.
Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
Section 8 agreed to.
SECTION 9.
Amendments Nos. 10 and 11 are related and may be discussed together.
I move amendment No. 10:
In page 11, between lines 40 and 41, to insert the following:
"(a) the deletion of ‘shall' and substitution therefor of ‘may' in subsection (2),
(b) the insertion in subsection (2) of the following paragraph—
‘(d) require the person to or on whom the notice is served to submit in writing to the Local Authority concerned—
(i) maps, plans, drawings or photographs showing the location, nature, extent and condition of any facilities for the collection, storage, treatment or disposal of the effluent or other polluting matter and any other premises from which polluting matter may enter water, and
(ii) such other particulars as may be specified in the notice of the matters aforesaid, including particulars of the arrangements, systems and methods in use or proposed for the disposal of the effluent or other polluting matter, and of the times and rates at which such disposal is effected.'".
Both these amendments relate to what I think is a practical problem that arises vis-à-vis sections 12 and 23 of the Principal Act and Statutory Instrument 348-84. Basically what we are seeking to do with the first amendment — and we are back to “shall-may” again but on a different basis — is to change “shall” to “may”. The reason is that if this new subsection were included it would remove flexibility from the local authorities in terms of dealing with section 12 notices. I am giving the Minister's argument in reverse at this stage. Basically works carried out on foot of a section 12 notice are exempt under the Planning Acts for development under the statutory instrument which I mentioned. That statutory instrument, I suggest, was brought in for the right reasons: in other words, if there is a pollution problem it would need to be dealt with quickly. It has been stated to me that some farmers are almost asking local authorities to serve section 12 notices on them so that they are removed from the necessity of applying for planning permission. Basically as the position stands, if a section 12 notice is served on a particular polluter he can carry out works which will satisfy the pollution aspect but which could be aesthetically very damaging to the environment. That is one aspect.
The other aspect relates to what we are seeking here. Under section 12, as distinct from section 23, the local authority may require information from a polluter or a potential polluter and may also look for particulars as to how the polluter intends to deal with the problem; in other words the works that are to be carried out. As matters stand, if a local authority want to compel a polluter or potential polluter to carry out certain works, a section 12 notice is served. If the local authority want information regarding the extent or scale of the pollution and details as to how the polluter intends to remedy the problem they must use section 23 to get that information. If it were all brought together under one section it would mean there would no longer be a need for two managers' orders for two separate notices. This gives rise to certain legal difficulties. I would suggest it would be much more straightforward and reasonable for a local authority, under a section 12 notice, to compel somebody to do something but give him reasonable time to come back with information and detailed plans as to how a certain problem is going to be dealt with. I would like to hear the Minister's views on this item.
The deletion of the word "shall" and the substitution of the word "may" could weaken the Principal Act, in my opinion. The amendment is a good one in section 9. It strengthens the power of the local authority to regulate or restrict the disposal of polluting matter on lands where such disposal could result in entry of polluting matters to waters. It is open for the recipient of a section 12 notice to make representation to the local authority in respect of the notice.
The quick answer to the Senator on that matter is that the things that need to be done following the issue of a section 12 notice, such as structures for the making or storage of silage and similarly, provision for effluent discharge are exempted. There are a whole range of other activities which are exempted as matters stand in regard to planning.
The statutory instrument which was introduced in 1984 exempts all development in compliance with a section 12 notice. That is the basic point I am making. The statutory instrument relates to the Planning Acts. I am pointing out that a problem arises for local authorities in that something that may satisfy conditions from the polluting aspect may be aesthetically unacceptable from a planning point of view.
The planning authority controls all that. How does the Senator see that as a difficulty? Is he worried that it might not be acceptable aesthetically?
This is a separate issue to the amendment but I am making that point because I think it is relevant. The local authority have not got jurisdiction over what the polluter does. A certain type of tank is seen by the sanitary authority as solving the problem but as regards the structure — the local authority have no say in that.
I do not know whether I follow the Senator exactly. When a section 12 notice is issued to somebody it means that they are at fault in some way and they have to carry out remedial works. Those remedial works are exempted development. Those agriculture things I mentioned and a lot of other operations are exempted development, but, under the principal Act, the notice that issues from the local authority can specify the measures so that the control is there already with the local authority in the specification of what has to be done under the principal Act.
Why was it necessary to bring in a statutory instrument in 1984 to exempt works carried out on foot of a section 12 notice from the planning laws?
That would be the normal practice in so far as agricultural developments are concerned within the curtilage of the property attached to the development — it was exempted development. That is included in a planning situation as it now exists. If you want to change that you are talking about an entirely different matter. What we are talking about is that those items that are going to be put in place under section 12 notice are specified by the local authority and because of their exemption they do not require planning permission. I agree that some of them might be ugly looking but not all agricultural buildings would be the subject of oil paintings. We are talking about farm development and farming activities. I do not see why the Senator is pursuing this now.
It is only for this reason. Say a certain type of tank is designated. That may be overground or underground or it could be overground in a scenic area and interfere with the scenic quality of an area. Developments under this section should be subject to the planning Acts but that is something the Minister can do without legislation by rescinding the statutory instrument of 1984 under the planning Acts. That is not directly related to the amendment and I accept that.
It is as simple as this: the Senator is worried that if certain remedial works are carried out they might not be aesthetically beautiful in high amenity areas. The authority can adjust their attitude to that in that they control the specified remedial works they are asking to be carried out under the order. They can say what is to be done so they could take the Senator's point into account. The local authority would have the authority to adjust the order to make sure that the work was aesthetically acceptable in particular areas.
I do not want to labour this but under the section 12 notice what goes out would be a technical solution to a pollution problem whereas it cannot deal with an aesthetic problem because it is exempted from the planning Acts. I do not accept we are splitting hairs. This is the real problem.
The real problem is the control of effluent and what I am saying is that when a section 12 notice issues it is to deal with the pollution problem that might come from the bad usage of effluent or the way it is treated. We can demand that certain things be done in certain circumstances and those items are, because of what you say, exempted development. I suggest that it is much more important to have the remedial works put in place and remove the pollution.
It is important that the pollution problem be dealt with but whatever remedial works are carried out, if they are aesthetically unacceptable from a planning point of view they are going to be there for a very long time.
I do not want the Senator to feel he is not getting a fair crack at this. The measures he refers to can be specified by the local authority and I would think they would be conscious of what was required to do the job properly and they could specify it in that way. So, what is the problem?
I think Senator O'Shea's problem is that quite often section 12 is used as in a crisis situation and as a consequence of that, aesthetic considerations are not borne in mind. The Minister's point is equally valid when he says that it is up to the local authorities to ensure that they are borne in mind. The Minister should be aware that certain farmers in sensitive areas deliberately provoke use of section 12 so that they are automatically exempt. I have seen that happen in a few places and in my own area.
Senator O'Callaghan has the nub of it.
Are you happy, Senator O'Shea?
I am still not happy but I am not going to labour the point. To strengthen the position of the local authority regarding the problem we are talking about, if the Minister accepts the amendment I put down, the local authority can require details from the polluter or potential polluter as to the works they are going to carry out.
Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
I want to get a chance to look at the record and consider what the Minister has said on these amendments and I may want to come back on Report Stage.
Section 9 agreed to.
SECTION 10.
Government amendment No. 12:
In page 12, line 31, after "area" to insert "or any such seashore as aforesaid".
When we come to another section the Senator's problem on the previous one might be dealt with adequately without seeking to pursue it further. Sorry, a Chathaoirligh.
I think the nice thing about Committee Stage is the graciousness one encounters and we get better legislation as a result.
The Minister has a reputation for generosity which often gets him into trouble. This is a drafting amendment needed to ensure consistency with subsection (c) which provides for preventing polluting matter from affecting the seashore. The provision, as drafted, does not appear to allow local authorities to take measures to mitigate or remedy the effects of pollution on beaches or the sea-shore.
I will support that amendment. It is coming back to the earlier problems I had about the lack of jurisdiction for the local authorities over anything outside high water mark. This would appear to give them some authority to deal with water pollution incidents.
Yes, Senator McCormack.
This Bill confers wide powers on the local authorities and sanitary authorities to intervene directly to prevent or deal with entry of polluting matter to any matters or to any drain or sewer provided solely for the reception or disposal of storm water.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
Amendments Nos. 13 and 14 may be discussed together. I understand Senator O'Shea is taking Senator Ryan's amendments.
I move amendment No. 13.
In page 12, line 47, to delete "amended" and substitute "amended—
(a)".
I agreed to formally move these amendments. I see a problem regarding the water pollution management plan of each local authority being produced by 31 December 1990 for reasons that I have often put to the Minister and his colleagues regarding staffing.
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Section 11 agreed to.
SECTION 12.
Amendment Nos. 15 and 16 may be discussed together.
I move amendment No. 15:
In page 13, lines 7 and 8, to delete "paragraph" and substitute "paragraphs".
These amendments deal with a problem that could arise regarding payments under paragraph (b) of this section. I would be very concerned that there would be regulations laid down by the Minister which would ensure that the payments did not vary from local authority to local authority. What we are talking about here is discharge of trade effluent into sewers. For instance, if one local authority decided to drop its payment by way of attracting industry into its area and another local authority that was going along more willingly with the whole spirit of this legislation was at a higher level of payment, the attractiveness of one area versus another for a potential industry could be affected. So, I believe in the interests of achieving the objectives of the Bill, uniformity of these payments between local authorities is desirable.
There is a wide variety in the nature of discharges to sewers and in the degree of treatment undertaken by sanitary authorities. I suggest that it would not be feasible to make regulations which would provide for the determination of payments in respect of all the discharges in the country. It is my intention, however, to issue guidelines to local authorities on the manner in which such payments should be calculated, taking account of the variations that might be involved from one area to another. It should be remembered that any payment specified by a sanitary authority will form a condition of the licence issued under section 16 of the principal Act and accordingly may be appealed to An Bord Pleanála; that is already in place. Therefore, it is reasonable to ask that the Senator would not press the amendment.
Would it be the Minister's intention to issue these guidelines as soon as possible after the passing of this Bill in both Houses of the Oireachtas?
That would be important.
In relation to the Minister's response, I would hope that we are not at variance on the point we are discussing. I made a point earlier in the debate that when the Minister is considering introducing specific categories he should be particularly mindful of hospital effluent discharge. This is a problem that has not been addressed specifically in the Bill for obvious reasons. It is a particularly offensive area that has not been addressed at all. Either a county council can be empowered to treat the sewer on behalf of the health board or the health board itself could be obliged to treat the effluent emitted from a hospital into a sewer because it might have particularly damaging effects on maricultural industry in towns where there are hospitals.
I am grateful to the Senator for his interest in that regard. It is a particular problem now in certain areas to which the Senator is referring, where the larger hospitals are.
Towns where there are larger hospitals.
I take the Senator's point.
Amendment, by leave, withdrawn.
Amendments Nos. 16 and 17 not moved.
Section 12 agreed to.
Sections 13 and 14 agreed to.
SECTION 15.
Government amendment No. 18:
In page 15, subsection (1), lines 38 and 39, to delete "A person to whom a licence under section 16 has been granted" and substitute "The occupier of premises from which a discharge to which a licence under section 16 relates is made".
This amendment is necessary to cover situations where the ownership of a premises has changed to ensure that the current occupier may appeal the revocation of a licence in cases where a licence had been granted to a previous owner of the same premises.
Amendment agreed to.
Government amendment No. 19:
In page 15, subsection (1), line 42, to delete "grant or".
This is an amendment to rectify an error in the drafting. There is no point in providing an appeal mechanism against the grant of a licence which can only be used by the occupier of the premises who clearly requires the licence if a trade effluent is to be discharged from his premises. An appeal against an attachment of conditions is provided for under subparagraph (2).
Amendment agreed to.
Section 15, as amended, agreed to.
Section 16 agreed to.
NEW SECTION.
I move amendment No. 20:
In page 17, before section 17, to insert the following new section:
"17.—Section 22 of the Principal Act is hereby amended by the insertion of the following subsection after subsection (2):
‘(3) The results of all monitoring under subsection (1) (a) and all information collected under subsection (1) (b) shall be available for inspection and copying by any member of the public who so wishes.'".
This amendment relates to section 22 of the Principal Act which relates to monitoring by local authorities and sanitary authorities. It seeks to insert the following subsection:
‘(3) The results of all monitoring under subsection (1) (a) and all information collected under subsection (1) (b) shall be available for inspection and copying by any member of the public who so wishes.'".
I can identify with Senator O'Shea's effort to ensure a greater openness — that is what is involved here — in relation to data gathered by official agencies of the State on the state of our waters and the nature of discharges which affect them. I also appreciate his concern to secure public access to that data.
The Senator will probably be aware of the extent to which the public already have access to applications for effluent discharge licences and to the registers of licences issued which are maintained by the local authorities. Provisions in this regard are already contained in the Water Pollution Act, 1977, and in regulations made under the Act in 1978. I am committed to securing greater openness on environmental matters generally. This is essential if public authorities are to enjoy the confidence of the general public in the performance of their pollution control functions and if the efforts of Government to tackle issues of global concern are to be understood clearly by the public and supported by them.
In the case of water quality data, I made specific provisions for public inspections of monitoring results in regulations I made last year, setting quality standards for bathing waters and for designated rivers capable of supporting salmon, trout and other fresh water fish. Extensive monitoring data used in the compilation of the most recent review of water quality in Ireland was published for the first time in 1987. I intend that this practice will be continued when future national reviews are completed at three to four year intervals by the environmental research unit at my Department. I am concerned to ensure that the right of public access to data on the environment is catered for through comprehensive legislation rather than tackling it in a piecemeal manner in a series of individual Acts dealing with particular aspects such as water, air, waste etc.
This legislation should reflect the complexity of the issues involved and strike the right balance between public right and the safeguards needed to restrict access to commercially sensitive data, production methods and other matters which, if revealed, could threaten the viability of the enterprise or aid its competitor. I would urge the Senators — and particularly Senator O'Shea — to withdraw the amendment in favour of a more comprehensive approach to the matter along the lines I have outlined and which I intend to pursue. It is a sensitive area — trying to get the balance that is necessary, giving the right amount of information, the openness that is needed in environment, and at the same time being conscious of the sensitivity in certain commercial sectors.
Yes, I accept that it is a sensitive area but it is also a sensitive area for the public and I would support the idea of the right of public access to data and monitoring results. As the Minister has said so many times today, there is a great public awareness now of the dangers and seriousness of pollution and much of the anxieties and fears are because people do not exactly know what is going on. There is the lack of knowledge in those areas. Anything that could open up that to the public and allay their fears would be better than a partly guarded secrecy. Let us not be seen as trying to hide anything if there is anything to be hidden. I urge the acceptance of this amendment because the worst thing is for people not to know what is going on as regards the possible pollution of the waterways and the water around them. If they knew the facts it would not be such a speculative and secretive area and people would not be so fearful.
I would just like to express my appreciation of the Minister's commitment to being open; that in itself is very welcome. We have to try to strike a balance here because too often I found that the environmental lobby — and I have great admiration for a lot of the things they do — tend to hit local authorities over the head for this alleged closed door attitude which I could never find and I am a member of a local authority for 17 or 18 years. They keep saying they do not have access to all the facts. I cannot accept that except in the case where the individual rights of companies or indeed of privately owned companies who also have significant rights in these areas must be protected. Any industrialist who is acting through the IDA is acutely aware of the need to jealously guard their industrial secrets and, as a consequence, this balance has to be struck.
I think this Minister particularly has a great desire to be open because we do not have anything to hide, either the Government or local authorities. Where water quality management studies are done they are available at county council meetings for the whole world to see. As I said, sometimes it is convenient for people in this particular lobby to say: "We do not have access" or "We have no confidence in the local authorities" or "Their environmental staff are incompetent," complaints which we hear regularly at public meetings. Quite often their desire for information is insatiable, quite often for information that is not available to anybody, I suspect. I think there is evidence in this Administration of willingness to let some fresh air into this particular debate. That is very welcome and the Minister's attitude here today is indeed welcome.
I would like to support this amendment which is excellent. It closes many gaps and extends the powers of the local authority to cover in addition to abstraction of water from and discharges of polluting matter to waters, custody or control of polluting matter and activities or practices which may cause or permit polluting matter to enter waters. The local authorities can now, by written notice, demand all relevant information in relation to work practices or activities. Prior to this, discharge had actually to be entering waters; now actual entry is not necessary. The provisions are very extensive and they even cover photographs showing conditions of facilities for collection, storage etc. of polluting matter, maps, plans and location of premises which includes lands from which polluting matter may enter waters; methods for disposal, times and rates of disposal, etc. This can be seen on pages 17 and 18 of the Bill.
There is just one point I would like to put to the Minister and that is rather than having records available to everybody at this stage I suggest replacing "any member of the public who so wishes" with "authorised persons at all reasonable times." Instead of having "any member of the public who so wishes" it would read "authorised persons at all reasonable times."
Is amendment No. 20 withdrawn?
Yes.
Amendment, by leave, withdrawn.
SECTION 17.
Amendment No. 21 has been discussed with No. 9 and cannot be moved.
Amendment No. 21 not moved.
Section 17 agreed to.
SECTION 18.
I move amendment No. 22:
In page 18, between lines 34 and 35, to insert the following subsection:
"(5) Notwithstanding anything contained in subsection (1) the Minister shall, by 31st December, 1990, prescribe quality standards for sewage effluents and standards in relation to the treatment of such effluents.".
This amendment relates to section 26 of the Principal Act which deals with the quality standards of sewage effluent. I think the amendment is self-explanatory.
Work within the Department on the preparation of quality standards for selected sewage effluents throughout the country is well underway and it is envisaged that regulations setting standards for these discharges will be made in the near future. However, this amendment would commit me to prescribing quality and treatment standards for all sewage effluents in the country by the end of 1990. This would, of necessity, involve a massive investment in treatment works for which the financial resources are not available at this time. We would like, of course, to provide the best possible treatment for all sewage discharges today or not later than tomorrow, if it were feasible, but, unfortunately, it is not feasible. Much progress has been made in providing improved treatment for sewage discharges in recent years.
Since 1980 it is interesting to note nearly £300 million has been invested by local authorities for this purpose using finance made available by my Department and, as a result, considerable progress has been made in eliminating pollution blackspots. This programme of action to tackle pollution from municipal sources has borne results. Water quality surveys show a significant reduction in serious pollution of rivers and streams since 1971 and much of this reduction is directly linked to the investment that has been made.
In 1989 over £62 million is being provided for the sanitary services capital programme. This provision will allow us to fund work in progress, including some important pollution abatement schemes, as well as giving sufficient scope to approve new urgently-needed schemes. In deciding on schemes to go to construction in this and in the coming years, the House may be assured that due weight will be given to the importance of building on the progress already made and ensuring that the local authorities are enabled to play their full part in the drive against water pollution. It should also be remembered that while sanitary authority sewers are exempted from the provisions of the Water Pollution Act, 1977, the sanitary authority in question can be prosecuted by the fishery boards if discharges from a sewer are causing pollution. That is a big change and Senators might like to note that.
I would like to welcome the Minister's commitment in this area because obviously the financial commitment is proof positive of commitment. I would like to say — and it was in the Minister's original speech when the Bill was introduced — in commenting on the various areas that were subject to grant contribution right through the eighties, the common denominator in all cases is the fact that they were virtually exclusively inland towns. While it is obvious that the blackspots would primarily be in inland towns, I would ask the Minister in his review to be conscious, as I am sure he is, of the serious impact that is equally in evidence in coastal towns. There is a feeling abroad sometimes that because a municipal sewer is going into Bantry Bay or Killary Harbour or wherever that the sewage is put away. It is not, of course, tragically, it is deposited on the shoreline quite often. I am sure the Minister is aware of this and, while he would obviously be preoccupied up to now with the removal of blackspots in inland towns — certainly in my own county a major advance has been made in a number of inland towns such as Fermoy — I would appeal to him to be conscious of the impact it is also making in the coastal towns.
I would like the Senator to be assured that I am conscious of that but he will appreciate that the enormous sum of money that has been spent since 1981 had to concentrate on the pollution blackspots where the effluent was being discharged, often raw, into receiving waters that did not have the capacity to carry it. We had to eliminate that area of pollution first. I am more and more turning my mind to the seaside towns which because of their tourist involvement have enormous intake of people at certain times of the year and the results are not happy from a pollution point of view. We are doing something about that now. You will be aware of the capital expenditure that will be going on so far as Dublin Bay is concerned and there are some other locations around the country as well. More and more I am increasing my attention to that element, now that we have carried out such a major capital investment programme on the inland towns in so far as the rivers inland are concerned.
Amendment, by leave, withdrawn.
Section 18 agreed to.
SECTION 19.
Amendment No. 23 not moved.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21.
Amendments Nos. 24 and 25 are related and may be discussed together.
I move amendment No. 24:
In page 19, subsection (2) (a), line 47, to delete "may" and substitute "shall".
I do not think I need go through the arguments again. This relates to by-laws to be made by local authorities, and I would ask to hear the Minister's line on "shall" and "may" again.
There is just one area in relation to slurry being transported around the country each year, and there are tens of millions of gallons of slurry being transported all over the country. Local authorities must have access to precise details regarding the origins and destinations of these materials and I would be very concerned about that.
Yes, this is of concern.
Amendment, by leave, withdrawn.
Amendments Nos. 25 and 26 not moved.
Amendments Nos. 27, 28, 32, 34 and 37 are similar and may be discussed together.
I move amendment No. 27:
In page 20, line 36, after "£1,000", to insert "(together with, in the case of continuing contravention a fine not exceeding £400 for every day on which the contravention is continued)".
There is no provision under the new Bill for continuing fines where there is continuing contravention. I understand that under the old Bill there was provision for these continuing fines but I do not know if they were ever used. I would like to hear the Minister's views on these amendments.
Under the old legislation the basic fine was below the constitutional limit, and under this legislation it is right up to the top of the constitutional limit. That is a very big change and it is not necessary to have the continuing provision because the constitutional limit debars it.
Amendment, by leave, withdrawn.
Amendments Nos. 28 and 29 not moved.
Section 21 agreed to.
SECTION 22.
Government amendment No. 30:
In page 21, subsection (2) (b), line 49, after "the", to insert "owner or".
This is a drafting amendment to ensure consistency in the paragraph, and the owner may make representations, and the amendment ensures that his representations must be taken into consideration.
Amendment agreed to.
Question proposed: "That section 22, as amended, stand part of the Bill."
This is a new section. The term "combined drain" should be clearly defined. It must be assumed because of the statements in the Explanatory Memorandum, pages 6 and 7, that the combined drain does not contain water or otherwise each discharge could be licensed under section 4 for discharge to waters. It is implied that in a combined drain the two trade effluents will combine before discharge to waters. It is stated that difficulties may arise in identifying the person responsible for breaches in conditions attached to the licence issued in respect of the combined effluent discharged from the drain. It is contended that by declaring the combined drain to be a sewer then individual licences can be issued under section 16. However, it must be stated that this will not make the individual licences any easier to enforce. There is a big danger here that too many channels will be described as combined drains and, therefore, may become open or piped sewers.
I refer the Senator to section 22 (7) where he will find "combined drains", defined —"combined drains has the meaning assigned to it by section 10 of the Local Government (Sanitary Services) Act, 1948". That might be helpful to the Senator.
My concern was that it might be abused.
Question put and agreed to.
Section 23 agreed to.
SECTION 24.
Amendments Nos. 31 to 37, inclusive, not moved.
Section 24 agreed to.
SECTION 25.
Amendments Nos. 38 and 39 not moved.
Question proposed "That section 25 stand part of the Bill."
The addition of a good defence clause in subsection (2), I feel, weakens section 171. Therefore subsection (2) of the new section 25 should be omitted. May I suggest that you remove the "(1)" in line 26 and the "(a)" in line 30 and in line 31 end at "or both", and omit the rest?
We inserted this good defence provision at the request of the Department of the Marine. They wanted the modified good defence provision to be inserted in section 3 of the water pollution legislation. It is being applied to the offences under section 171 of the Fisheries (Consolidation) Act, 1959, section 25 (2) and that will achieve this purpose.
To avail of the good defence it will be necessary for the accused to prove to the satisfaction of the court that he could not reasonably have foreseen that the act or omission concerned might cause or permit deleterious matter to fall into any waters. The application of the good defence provision to section 171 offences will secure a greater degree of uniformity in relation to water pollution offences under fishery and local government legislation. Public understanding of pollution controls and offences should be improved and more equitable enforcement of the legislation should be achieved by the change. In view of the limitations on the situations in which the new good defence provision may be availed of, the ability of fishery boards to tackle pollution under the 1959 Act will not be impaired in any way in practice.
A good defence mechanism is already available under the Fisheries (Consoliation) Act, 1959, in the case of offences under section 172 of that Act. The offences concerned involve the failure of the owner of a receptacle for storing deleterious matter which is located within 30 yards of any waters to provide and maintain such means as will effectively prevent the passage of any of the matter from the receptacle into the waters. Owners of such receptacles may apply to the Minister for the Marine for a certificate recognising that suitable means have been provided to maintain the receptacle and to prevent pollution. In the event of owners failing to provide and maintain such receptacles, the charges will be dismissed where current certificates are produced. We are doing this in co-operation with the Department of the Marine, who sought these necessary adjustments.
The problem I see is in a rural area where somebody is convicted and where he can actually call for his case to be tried by jury. Of course, he may not be convicted in the end for his crime.
Of course, one can have a matter tried in that way, but it is an expensive business.
Rural justice.
I do not know whether it is rural justice, but it is the kind of justice that is contemplated under the legislation. Those who are deliberate polluters will be a lot lighter in their pockets following the enactment of this legislation. That has been welcomed across the board by everybody.
Question put and agreed to.
SECTION 26.
An Leas-Chathaoirleach
Amendments Nos. 40, 41, 42, 43 and 44 are related and may be discussed together.
Government amendment No. 40:
In page 23, line 42, to delete "or a sanitary authority" and substitute ", a sanitary authority or a regional board".
These amendments make provision for the payment of fines to regional fisheries boards where they prosecute offences under the 1977 Act and for their recovery in the event of nonpayment as if they were due on foot of a decree or court order issued in civil proceedings. It was originally intended to include these provisions in the Bill but to put regional boards in the same position as local and sanitary authorities with regard to the payment of fines to them. However, they were omitted due to a drafting error.
The table in section 27 shows the offences which may be prosecuted by a regional board. These are principally offences under sections 3 and 4 of the 1977 Act. There is already provision in fisheries legislation for payment of fines to regional fisheries boards where they obtain convictions in respect of pollution offences under section 171 and section 172 of the Fisheries (Consolidation) Act, 1959.
I would just like to ask a question. Is there any danger here that, effectively, the prosecution falls between two stools? Given all the constraints on local authorities at present, I could see where people might stand off and say that is a job for the fisheries board or, indeed, vice versa. I see the logic of including or joining the fisheries board in legislation. Is there any facility under the Act whereby one would take precedence over another or one would be expected to act before another? I agree that it is unlikely, but there could be the occasional situation where one would leave it to the other and as a consequence the polluter escapes.
The experience has not been that way. The number of prosecutions promoted by local authorities has increased dramatically, happily so. However, I would like to foresee a day when there would be no prosecutions at all — but for the right reasons, of course. In the meantime until such time as everybody understands and appreciates that the environment will be protected not just by enforcement but by education — unfortunately until sufficiently educated people understand precisely what has to be done — the enforcement element has to be there. We find now that local authorities are acting, perhaps, because they are benefiting from it in some way by the fines and penalties. I would rather that that was not the only reason, but it is an incentive in some ways and the number of prosecutions has increased dramatically. There is quite a good bit of co-ordination between the fisheries boards and the county councils in these matters. I am satisfied that this will address the problem we all wish to see remedied.
Amendment agreed to.
Government amendment No. 41:
In page 23, line 43, after "authority", to insert "or board".
Amendment agreed to.
Government amendment No. 42:
In page 23, line 45, after "authority", to insert "or board, as the case may be,".
Amendment agreed to.
Government amendment No. 43:
In page 23, line 46, after "authority" where it firstly occurs, to insert "or board, as the case may be,".
Amendment agreed to.
Government amendment No. 44:
In page 23, line 46, to delete "the authority", where it secondly occurs and substitute "it".
Amendment agreed to.
Section 26, as amended, agreed to.
Sections 27 to 29, inclusive, agreed to.
SECTION 30.
Amendment No. 45 not moved.
Section 30 agreed to.
Section 31 agreed to.
Title agreed to.
Agreed to take remaining Stages today.
Bill reported with amendments, received for final consideration and passed.
Ba mhaith liom no bhuíochas a chur in iúl duitse a LeasChathaoirligh agus dona Seanadóirí uilig a ghlac páirt sna diospóireachtaí ar an Bhille fior-thábhachtach seo maidir le truailliú a chosc.