I welcome the Minister. Amendments Nos. 13 and 14 are related and may be discussed together.
Vol. 139 No. 8
I welcome the Minister. Amendments Nos. 13 and 14 are related and may be discussed together.
Donegal South-West): Amendments Nos. 13 and 14 are essentially drafting ones, which make no substantial change to the meaning of the section. They simply clarify that more than one map can be used.
I move amendment No. 15:
In page 9, subsection (3), line 11, after "necessity" to insert "or for reasons of safety".
I welcome the Minister. The effect of the amendment is to clarify the circumstances in which the owner or occupier of a monument must give notice to the Commissioners of Public Works about alterations and so on. There is an exemption in the Bill which states "in the case of urgent necessity". The question arises as to whether reasons of safety are converted by the phrase "urgent necessity". I will wait for the Minister's reply before commenting further on the amendment.
(Donegal South-West): The words “urgent necessity” are intended mainly to cover reasons of safety. There is no need to use the two terms. It is preferable to have one clear comprehensive term. What is more urgent than safety? Reasons of safety are provided for in the words “urgent necessity”.
Amendment Nos. 16 and 17 are alternatives and may be discussed together.
I move amendment No.16:
In page 9, between lines 13 and 14, to insert the following subsection:
"(4) When the owner or occupier (being the commissioners) of a monument or place which has been recorded under subsection (1) of this section or any person proposes to carry out, or to cause or permit the carrying out of, any work at or in relation to such monument or place, he shall first consult with the National Heritage Council and thereafter give notice in writing to the Minister of the proposals to carry out work and shall not, except in urgent necessity or for reasons of safety and with the consent of the Minister, commence the work for a period of two months after having given the notice.”.
This amendment is more substantial than amendment No. 17. Section 12 (3) refers to the responsibilities of owners and occupiers of national monuments, other than the Commissioners of Public Works. The purpose of the amendment is to impose the same responsibilities on the commissioners. It is important that the commissioners should not be exempt from the same restrictions imposed to others. To do so would give them such latitude that it would render the Bill totally unacceptable.
The amendment proposes that the commissioners should consult the National Heritage Council and, thereafter, give notice of their proposals in writing to the Minister. The reason is simple; the National Heritage Council, or some other competent body, could be given a role in this matter. The heritage section of the Programme for a Partnership Government states that the National Heritage Council will be placed on a statutory footing. If this happens, there are very good reasons it is the body which should be consulted. Even if it were never to be placed on a statutory footing, there are plenty of precedents in legislation passed by this House over the years to allow non-statutory bodies to be consulted on matters like this. The responsibilities of the commissioners under law should not be different from those of the private citizen. They should have a duty to consult some competent body, which we recommend should be the National Heritage Council.
Unless Senator Dardis's amendment or mine is accepted, a different situation will apply to the commissioners from that applying to private owners and others. It is essential that where the commissioners are proposing to carry out work, proper notice of the proposal should be given and people must be aware of it. A situation has already occurred where the commissioners, without notifying people, were able to commence work. They were treated entirely differently from other parties which is not proper. When work is being carried out, the commissioners and other parties should all be treated equally in law. Section 12 (3) creates a distinct difference and this is not good enough.
Instances where the commissioners have carried out their responsibilities, without obtaining permission, have led to considerable difficulties when the commissioners did not have to proceed in the way which normally applies to other parties carrying out works. They did not have to apply for planning permission or have obligations imposed on them, which are imposed on other parties. The purpose of my amendment is to make certain that the commissioners and everybody else have the same responsibilities. The commissioners should be equally obliged to give notice in writing of their intention to carry out works. The Minister should also be notified. It is essential that from now on there is no distinction when works are being carried out and that the commissioners are obliged to serve proper and adequate notice, like everybody else.
(Donegal South-West): The functions of the Heritage Council will be set out in a separate Bill and it would be inappropriate to make provision as proposed in this amendment. This proposed subsection is precisely the same as subsection 5 (8) of the 1987 Act which provides for registered monuments and it would not be logical to provide for more rigorous procedures in this Bill.
It is not appropriate to provide in this Bill for the commissioners and other owners of recorded monuments to notify the relevant local authorities of proposed works. The planning Acts are the proper place to provide for such procedures. If the amendment was accepted, land owners could find themselves having to deal with the same local authority under two separate codes of legislation — the Planning Acts and the National Monuments Acts — in regard to a single development.
The Office of Public Works is compiling the list of monuments and it is in the best position to know if developments are likely to harm a monument. Under the planning regulations, the planning authority is obliged to consult with the monuments advisory body in relation to planning applications for developments in the vicinity of monuments. While there is no advisory body in existence at present, it is expected that this function will be taken over by the proposed statutory heritage council. This arrangement ensures that there is a liaison with the local authority in regard to monuments. Amendment No. 19a which I am introducing proposes to place on the Commissioners of Public Works the requirement to go before the Oireachtas in cases where they propose to interfere with such a monument.
I do not regard that answer as satisfactory. There is a great deal of talk at the moment about consultation on matters such as Mullaghmore — which is not the same as the national monuments issue but involves the same principle. When it is really put up to the Government to consult with people it does not do so. It is illogical for the commissioners to consult themselves, but who else can they consult? I suggest that the National Heritage Council which we are about to put on a statutory footing would be the appropriate body.
It is not consistent to say that the Oireachtas should be the arbiters of tastes. That institutionalises the rights of the commissioners and brings us into the difficult area of defining good taste. We would have to say that the people who worked on the restoration of the Seanad Chamber exemplified good taste. However, we can think of many precedents within our history where the official State taste, as represented by the commissioners, was totally out of keeping with any objective assessment of what good taste might be in artistic or other terms.
An Taisce has made substantial representations on this matter. In a letter to the Minister for Arts, Culture and the Gaeltacht, dated 3 December 1993, it stated:
The need to provide quality standards in relation to work done to monuments needs to be addressed whether this work is done by State agencies or private owners. At present, the Commissioners of Public Works are the sole arbiters of quality standards in regard to any works done to the national monuments and they have no obligation to consult any other body before making decisions in this context.
The letter goes on to state:
Effectively, the Commissioners of Public Works are exempt from the planning process for any works they do to national monuments. An Taisce would recommend that this Bill should incorporate the principles of the Granada Convention, 1985, adopted by the Council of Europe members, including Ireland. There is a considerable amount of international data in this context that would be drawn on including the attached Charter of Venice, 1966, by the International Conference of Monuments and Sites of which the Office of Public Works is a member. Articles 1, 6, 7 and 11 of the Venice Charter are particularly relevant in Ireland.
It further states:
An Taisce is urging that the principle of quality standards should be included in the text of the Bill but that the detail could be left to ministerial regulations and should include a consultative process, which could be a function that could be assigned to the national heritage council, which could form part of this Bill designed to give it statutory recognition which forms part of a commitment by Government.
If a body of the stature and importance of An Taisce feel that way about this matter I submit that the Government should feel the same way. The Minister has made the point that this should be incorporated into the planning acts. On a regular basis in this House, it is given as a reason for not improving a Bill before us that certain provisions are to be incorporated into some other legislation. However, that does not happen. Once the Bill is passed through the House it is forgotten about and we rarely, if ever, come back to incorporate the changes advocated in one Bill into other legislation. I do not see anything wrong with people being governed by two sets of legislation. Local authorities are governed by a multitude of legislation and they are able to work wihin that ambit. The fact that we have two areas of legislation, one in the planning Acts and one in the National Monuments Bill, does not create an impediment. I am not clear about the functions of the National Heritage Council when it is put on a statutory footing. I would be grateful if the Minister would clarify the comments he made.
The explanatory memorandum makes this quite clear. It states: Subsection (3) provides that an owner or occupier of a monument or place recorded under subsection (1) shall not carry out any work on the monument or place so recorded unless he gives prior notice in writing to the commissioners. The owner or occupier has a responsibility to notify the commissioners. Whatever other powers the commissioners have, they are not infallible. The Minister stated that the commissioners know best. That is the wrong approach. I have put on record my praise of the works carried out by the commissioners over the years. However, on occasions I have disagreed with some of their work. I am seeking that where the commissioners are carrying out works on a recorded monument, there should at least be notices placed in newspapers and adequate notice given to the owner of the property. The public should be informed that these works are to be carried out. It would be wrong for the Minister to proceed without seeking to give adequate written notice to the relevant local authority and the public.
I support Senator Dardis's proposal about the National Heritage Council. The local authorities are charged with responsibilities in regard to planning. If work is going to be carried out on any monument the local authority should at least have an opportunity to see the proposals. They could debate them publicly and the local or national press might be interested. The local public representatives would then at least have the opportunity to agree, disagree or comment on the matter. I have considered the question of the National Heritage Council, but the local authority should be involved. It will not be an expensive proposal but a notice in writing should be circulated.
Lately many Bills have been challenged in regard to their constitutionality. The Family Home Bill in regard to joint tenancies, for example, has been held to be unconstitutional. According to one of the national newspapers, the Council of State may have to meet to discuss the Criminal Justice (Public Order) Bill. Reservations have also been expressed here about the constitutionality of section 11 of this Bill. If there is to be one law for one person and another for somebody else, there may be a constitutional challenge to this section. Local people in the area around the monument should be allowed some input. There are historical societies in most of the counties we represent, comprised of serious people who take an active interest in their local areas. The amount of work they have done to date — and their splendid research — is proof of their active interest in these historical sites. The failure of the Government to take this on board is a regrograde step.
There have been problems with this matter in the past in Counties Wicklow, Clare and Meath because specific applications were not made and planning permission was not obtained. All I seek is a simple amendment which would meet reasonable requirements, would be regarded as fair and allow those with local knowledge to have some input, rather than giving all the power to the Commissioners of Public Works.
There must be a consultation procedure incorporated between the Commissioners of Public Works and the planning authorities as we are all conscious of the need to preserve our amenities. All our buildings must blend with the areas around them. I hope this Bill will incorporate consultation procedures. We do not need to go beyond having the local authorities and people involved. The planning of such a consultation procedure has already been indicated and must be incorporated because we are all involved in the preservation of our amenities and of national monuments in our areas.
One can think of many such monuments where access must be referred to the local authority because it is responsible for the land surrounding the monument. One such example in my constituency, Rathfarnham Castle, belongs to the Office of Public Works while the surrounding land is the responsibility of the local authority. There is already a high level of consultation there. Every time there is a discussion in regard to the Office of Public Works, there is also one with the local authority; it is a joint meeting. I am happy with that consultation procedure but it needs to be reinforced. Our areas are becoming increasingly tied to each other. We are all conscious of our environment and there are monuments of great prestige in many areas. The people want a consultation procedure but it is already in place. Perhaps the Minister will refer to it again in the context of my statements.
(Donegal South-West): I emphasise that the Heritage Council is not a State body. It does not provide for consultation, but we must consider that it is now intended to make it a statutory body. The new Bill will provide for the functions of the existing heritage council. In my original contribution, I said that although there is no advisory body in existence, it is expected that this function will be taken over by the proposed statutory heritage council. While I cannot give a categorical assurance, it is our intention to introduce legislation this year to place the council on a statutory footing.
If any landowner or occupier wishes to do work on an area of land that might be recorded as a national monument, he would have to give two months' notice to the Office of Public Works, who will investigate it. Permission will be given if it is not a monument of importance, but that is a matter for negotiation between the two parties.
Planning permission is not required for the restoration of monuments. The Senators will appreciate that if it was required, it would be up to the Office of Public Works to submit an application to the relevant local authority. However, as we are all aware because of last year's events, planning permission is necessary for the erection of a new building and consultation will take place with the relevant local authority. Planning permission is not necessary for restoration purposes, but it would be necessary if the monument was to be extended or changed in any way. The Office of Public Works will follow the procedures laid down as a result of the events last year.
The national council, which I hope will be on a statutory footing this year, will deal with this matter adequately. I do not want to seem difficult, but we are confident that this council and the current planning permission laws and regulations will allow for consultation between the Office of Public Works and the local authority.
Furthermore, if there is any question of changing a monument, it will be necessary to consult and obtain the permission of the Minister for Arts, Culture and the Gaeltacht. If the Minister agrees with the proposals, he must lay this decision before the Oireachtas. That is another manner of consultation, except in the cases of public health and safety and that would be only in extreme circumstances. If the Minister agrees with the proposals to demolish a national monument and goes before the Houses of the Oireachtas, it will be transparent and give the Houses the opportunity to air their views. There is adequate room for consultation.
One should not lose sight of what the section is about, setting up a register of national monuments. I made a point on Second Stage about the records which had already——
That is only one of the subsections, but not the one with which we are dealing.
We will deal with all of them.
How about "cause or permit the carrying out of any work"?
Senator Daly, without interruption please.
The record is important. I queried on Second Stage how the new record would compare with the list which is currently in the possession of each local authority. Each authority has a list with maps and details of every national monument in its area which was compiled over a long period. Much work was put into that project, including aerial photography which identified sites. In one county an additional 1,000 sites which had not been previously recorded were discovered. I ask for some clarification as to the relationship between the new record and the record which each local authority already has. In light of the new information from the Commissioners of Public Works, a number of applications for planning permission have been revised and, in some cases, refused.
I advise the Minister to be cautious about giving statutory authority to another organisation, particularly the Heritage Council. There is already sufficient statutory provision for what needs to be done. It is duplication and a waste of both human and financial resources to establish another statutory council to deal with the same area and it will lead to confusion among the public. At the end of the day, somebody must make a decision.
There has been more consultation about Mullaghmore than any other project since the foundation of this State. Certain people refuse to accept any decision, even a decision as to whether an application for planning permission should be made. Who will ultimately make such decisions? I would be cautious about creating, as is being suggested, another statutory organisation such as the Heritage Council to do what is already being provided for in this legislation. These amendments are unnecessary. The Minister should be very cautious about establishing a statutory Heritage Council. It should not be done without a detailed examination of this area.
The Minister said earlier that some of these matters should be dealt with by planning laws and then we were told that planning permission is not required. Where does that leave us? I am sure the Minister will agree that there is an absolute obligation on the State to protect our national monuments as part of our heritage and that nothing should be done to destroy them. Does the Minister not accept that the commissioners have the same obligations as a private individual who is the occupier of a national monument? This is the central question. Does the State not have the same obligation as the private individual? We are in a fairly sorry mess.
I listened to Senator Daly with interest because he has experience in this area, having worked in the Office of Public Works for some time. I would regard what he says as important. He said this section only deals with recorded monuments but subsection (3) goes further where it states "to carry out, or to cause or permit the carrying out of, any work in relation to such monument or place...".
And recorded monuments.
Precisely. If one takes it a step further, the section actually provides that the maps are lodged with the local authorities and the list of the maps of a county drawn up under subsection (1) are exhibited in the prescribed manner in each county. The importance of dealing with it in each county is recognised.
It is already done.
Section 11 refers to the provision of facilities for persons who have access to the monument. In other words this allows extensive work to be carried out. That is a simple example of how far this can go. The commissioners can carry out those works without notifying, in writing, the relevant local authority.
When works have been carried out the Office of Public Works has been exceptionally helpful and has notified people about various national monuments in Offaly. There is goodwill at present but when passing legislation of this nature it should be specified that the local authority must be notified in writing. I seek this or something in the nature of Senator Dardis's amendment which requires consultation with the National Heritage Council.
Senator Daly mentioned the consultation process with regard to Mullaghmore. In a matter of such national and European importance, consultation is essential. Public representatives, the people of the area, the engineers attached to the local authority and local historical societies should have an input before any work is carried out.
The owner or occupier cannot carry out the work but the commissioners can. Unless the Bill is amended, it will not meet the desired objective.
I have to take issue with Senator Enright. There is a consultation process. It is incorporated in procedures between the Office of Public Works and South Dublin County Council. There is no question about its existence. We, as responsible county councillors, are involved in it. I do not have any problem with the current consultation procedure but I ask the Minister to reinforce it.
I move amendment No. 18:
In page 9, subsection (5) line 18, after "device" to insert "other than a device used solely for agricultural purposes".
Before I speak on the amendment, will the Minister answer a question I asked about whether he accepted the commissioners should have the same obligations as the owners of monuments?
(Donegal South-West): A more onerous responsibility is placed on the commissioners than on the private sector because they must obtain the Minister's permission and he must then go before the Houses of the Oireachtas.
My amendment may seem frivolous, but it is important as it deals with metal detectors and detection devices. It seeks to exclude from this legislation devices used for agricultural purposes. This is an important point because it is now routine practice to fit forage harvesting machinery and combine harvesters with metal detectors or detection devices. These shut off the machine so that it will not be damaged if it picks up a piece of metal. These devices should be specifically excluded in the legislation because someone who has such equipment on agricultural machinery could be in trouble. The device detects an archaeological object above the ground. It is an advantage to have it on a machine because it can detect tems, such as flails which may have become detached from mowing machines, and shut down the machine to avoid damaging it. I realise the Minister does not wish to prosecute people who have such devices but it is important to specifically exclude them.
I agree with Senator Dardis because when a detector is in place it may not be removed. It may be possible to abuse conditions which state that a local farmer may have a metal detector on his machine. We are talking about a metal detector which may be used to look for an archaeological object. However, conditions could be open to abuse.
Senator Dardis's amendment shows common sense. It would also be possible to insert words such as "the user in possession of a detection device for the purpose of searching for objects". The Minister is trying to prevent people using metal dectors to look for valuable objects because they have been abused. I support the amendment.
(Donegal South-West): The term “detection device” is defined in the National Monuments (Amendment) Act, 1987, as a “device designed or adapted for detecting or locating any metal or mineral on or in the ground, on, in or under the sea bed or on or in land covered by water, but does not include a camera.” Section 12 (5) extends the protection of national monuments contained in the 1987 Act to monuments recorded under section 12 of this Bill. The term “detection device” would not include a device used solely for agricultural purposes. Under existing law, it is an offence to use the device at a protected monument, or anywhere else, for the purpose of searching for an archaeological object. We want to ensure this cannot be used in the areas where there are 150,000 recorded monuments. Senator Dardis gave a practical example of a combine harvester which has a metal detector attached to it. This is, of course, being used solely for agricultural purposes and thus the law is not being broken. A metal-detector is used solely for detecting archaeological objects, while the combine harvester with a metal detector is used solely for agricultural purposes. I see no difficulty with this in that it is not breaking the law.
I am prepared to accept the Minister's assurance that people would not be breaking the law. However, I am even more confused on the basis of what he has said about section 12 of the National Monuments (Amendment) Bill, 1993 which refers to a device designed for detection of metal above or below ground. That is specifically what these attachments to agricultural machines are designed for. They are designed to detect metal and to ensure that the machine stops. I realise that the Minister would not wish to see anybody prosecuted for possession of one of these metal detectors on an agricultural machine but nevertheless it seems that under the legislation they could be so prosecuted.
Does the Minister wish to make a further comment?
(Donegal South-West): I assure the House that there would not be a breach of the law unless, of course, this was attached to farm machinery with the sole purpose of finding an archaeological object. If it is certainly not the intention of the farmer to detect an archaeological object, I do not see any great difficulty, unless the courts go to the extreme.
The Minister conjures up visions of £100,000 combine harvesters climbing over mounds in the middle of grass fields. I do not think that is going to happen so I prefer to accept what he said.
I move amendment No. 19:
In page 9, line 37, to delete "Irish".
Section 14 amends section 2 of the Principal Act by the substitution of the following definition of "archaeological object". It goes on to say what that means, including an "association with any Irish historical event or person". It is conceivable that in certain circumstances objects could be found which have an association with historical events elsewhere rather than specifically Irish events. The scope of this section should be so wide as to include any archaeological object whether it be associated with an Irish historical event or otherwise. I suppose one could argue a case that if something was brought over by boat and dropped in an Irish field, it was associated with an Irish historical event but that would be a very tenuous connection. That is the reason for this amendment. The definition should be wider, and not specifically connected to an Irish historical event. It could be connected to any event. For example, something could fall off a spaceship and land in a field in Kildare.
(Donegal South-West): The main object of the new definition of archaeological object is to remove reference to the term “treasure trove” from the definition. This is a difficult legal concept and clouded the State's right to the ownership of such objects. Under the provisions of section 14 an object is an archaeological object, and thus the property of the State, if found with no known owner and is either of archaeological interest or has an association with an Irish historical event or person. Once either condition is satisfied, the object will be an archaeological object, and items which are not necessarily associated with an Irish event or person but are of general archaeological interest are covered.
As explained in the Minister's speech on Second Stage, we are trying to give statutory expression to the findings of the Supreme Court in the Derrynaflan case. That judgment, which was an adjudication on a complex constitutional question, dealt with the rights of the Irish people to their own heritage. Accordingly I feel that the word "Irish" strengthens the definition without limiting it in any substantial way and I would prefer if the House agreed to allow it to remain. I may summarise by saying that to qualify as an archaeological object there are three conditions: first, it is something that the State has a legal right to ownership of; second, there is no known owner; and third, it is of archaeological interest and/or has an association with an Irish historical event or person. In view of this and of the fact that it is either of archaeological interest or associated with an Irish historical event or person, the House might take the decision that the word "Irish" should remain.
Amendment No. 19a is a Government amendment and I understand that the Minister has already spoken to this amendment with amendment No. 16.
Government amendment No. 19a:
In page 9, between lines 40 and 41, to insert the following new section:
15.—Section 14 of the Principal Act is hereby amended by the insertion of the following subsections:
(3) (A) The consent referred to in subsection (2) of this section shall not be given by the commissioners or the commissioners and a local authority, in a case referred to in paragraph (2) of subsection (1) of this section, unless it is in the interests of archaeology to do so or the Minister has approved of the giving of that consent.
(3) (B) Subject to subsection (3) (C) of this section, on being requested to approve of a consent under this section, in a case referred to in paragraph (a) of subsection (1) of this section, the Minister may either give such approval or refuse to give such approval and where he gives such approval he shall give it by (other than in a case referred to in subsection (3) (C) of this section) making an order in that behalf which said order shall set out the terms and conditions, if any of his approval.
(3) (C) On being requested to approve of a consent under this section, the Minister may approve of the consent referred to in subsection (3) (A) of this section in a case referred to in paragraph (a) of subsection (1) of this section where he thinks it expedient to do so in the interests of public health or safety.
(3) (D) An order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if an order annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder'.".
(Donegal South-West): Under the heading “Our Heritage” in the Programme for a Partnership Government 1993-97, the partnership Government undertook to prohibit the giving of consent to the demolition of manuments without approval by the Oireachtas in exceptional circumstances and after a full archaeological excavation. At present the Commissioners for Public Works, or the local authorities acting jointly with the commissioners, are empowered under section 14 (3) of the National Monuments Act, 1930 to give consent to the demolition or alteration of a national monument in the care of the commissioners or of a local authority or a national monument in private ownership which is the subject of a preservation order. The consent may be given by the commissioners in the interests of archaeology or for any other reason.
In the majority of cases where such a consent would be sought, the purpose would be to allow an archaeological excavation to take place. It may also happen that other physical changes to a monument might be required for reasons of public safety or health. For instance, if a monument is in a dangerous condition it can happen too often that consent would be given when the purpose is to allow a building programme to proceed. The most notable example of a consent of this nature would be commonly regarded as a joint consent given by the commissioners and the local authorities in respect of the Wood Quay site in Dublin in 1979.
The proposed section sets out precisely the circumstances in which the commissioners shall give their consent to the alteration or destruction of a national monument in their care or to removal of a preservation order from a national monument. The commissioners, or the commissioners and local authorities jointly, will continue to be empowered to give consent for reasons of archaeology without reference to the Minister. If consent is sought for reasons of threat to public health and safety this will have to be submitted to the Minister for a decision. In these circumstances the Minister would have the authority to refuse such consent. Should the Minister wish to give such consent for any reason other than threat to public health or safety he would be required to make an appropriate statutory order but the order would not become operative until the Houses of the Oireachtas had been given the opportunity to debate and annul the order if either House so desired. It is anticipated that very few cases of the latter nature would arise in practice, but where a serious conflict of interests arises between the need to protect our physical heritage and the exigencies of development, the procedure proposed would at least allow an informed debate and the ultimate decision to be taken in a manner which would be viewed by all concerned as reasonable and open.
This amendment attempts to remedy, to some extent, the obvious defects in existing legislation. I have spoken on a number of occasions previously, here and in the Dáil, about Wood Quay and other situations have arisen with regard to Mullaghmore, Luggalla and other sites.
Under existing legislation the final decisions about work being carried out — demolition, improvements or excavations — rest solely with the commissioners and the Minister. In this amendment "unless it is in the interests of archaeology to do so" the consent will not be given by the commissioners or the comissioners and a local authority. I agree. However, it is essential that other interested bodies, such as An Taisce, are also notified. An Taisce is devoted to the preservation of items of historical and archaeological interest. It is a voluntary group, as far as I am aware, although it may have a a couple of salaried personnel. The group gives of its time in a generous way and it is in everyone's interest that it should be notified. We also have a national heritage council and other relevant groups.
The amendment does not go far enough as voluntary groups and organisations who have an input to this area must be included. Fr. F.X. Martin took on Dublin Corporation over Wood Quay and later received a sizeable legal bill for his valiant efforts to preserve that site. He was unsuccessful but at least he highlighted the problems. It is essential that the Minister involves people like Fr. Martin, the members of An Taisce and other groups with an interest in archaeological sites.
We depend too much on the commissioners and the Minister. It became obvious during the controversies in Wicklow and Clare that when a local authority makes a decision, thus making it policy, that policy gathers momentum and is hard to stop. That can only be prevented by a disinterested party which has no material objective or a financial interest in the matter. I am not implying that the Minister or the commissioners have a financial interest but a body like An Taisce would be interested and involved and we have an obligation to notify such a body and to see its consent in an instance of this nature.
I support Senator Enright. The State can decide that certain things are beneficial in the interest of society. However, it is not always right and other bodies are — and have been — active in preserving our heritage. On one occasion these people were described in the Seanad as "elite". I do not accept that description but, even if I did, we are fortunate to have such an elite because we would be poorer without it.
Subsection (3A) of the amendment and other parts of the Bill refer to cases "referred to in paragraph (a) of subsection (1)". What does that mean? Can the Minister give examples of those cases?
It is a pity that An Taisce did not ask me to reflect its views as I have no difficulty reflecting the views of any pressure group.
We have a well educated population and, naturally, people will ask us to highlight problems with consultation and other aspects of the preservation and protection of our national monuments. However, I have great difficulty withthat if it undermines the role of a public representative who may already be presenting those views. It casts doubt on the mandate given to the local representative to represent the views of the people. While it is necessary to have help, nobody should be given a special role to make me, as a public representative, aware of people's views or to impress on me that its view is the only one to be considered. It is my job to reflect the views of people in the area and I do not want one pressure group to take precedence. Public representatives should not be undermined.
I cannot agree with the Senator regarding the views of An Taisce. Of course, they should be taken into account, but in the same way as the views of every other member of society. We have an important role. The consultation procedure should be through the normal channels. With our educated population there should be no difficulty in doing that.
(Donegal South-West): Senator Enright mentioned the necessity to inform An Táisce and others. Where does one step from the statutory and legal points of view? Whom are we obliged to inform? Are we obliged to inform every individual in the country or voluntary organisations such as An Taisce?
This amendment sets out the circumstances in which the commissioners shall give their consent to the alteration or destruction of a monument in their care or to remove a preservation order from a national monument. It provides for major cases which are the cause of controversy. All interested parties should be made aware of them. The Minister will be obliged to make the appropriate statutory authority that this could not become operative until it is placed before both Houses of the Oireachtas and the opportunity given to debate and annul the order if either House so desired. What more publicity could there be than by placing the statutory order before the Oireachtas and giving an opportunity for both Houses to debate it? There is adequate opportunity for informing the various bodies, An Taisce and other interested parties.
Senator Dardis referred to the examples I gave. Those examples would be to demolish or remove wholly or in part or to disfigure, deface, alter or in any manner injure or interfere with any such national monument without or otherwise than in accordance with the consent. Senator Ormonde accepts that the statutory order would be laid before the House and the ensuing publicity would be more than adequate.
I have listened to Senator Ormonde's views. The final decisions have to be made by public representatives on the policy issue and the Commissioners of Public Works may proceed on the basis of those decisions and also make their own decisions. An Taisce has no motive other than that it is actively interested on a voluntary basis and it has built up a considerable amount of expertise over the years. Members of such bodies who take cases to court to protect sites or monuments which they believe need protection do so at great financial risk to themselves. They can lose their family home or their property if they lose such an action. While some people may brush aside the views of such individuals and groups it is essential that we have included in the legislation, if not their consent, then at least a requirement for consultation with them.
For me Dublin was the buildings on Fitzwilliam Square, Merrion Square and Hume Street. I remember being on Molesworth Street and seeing beautiful buildings torn down and I saw millionaires in big cars looking on and approving of the work. Some people disagreed with a lot of what was said about the Burren and felt that many of the people were just agitators. Whatever one thinks of their views they were at least concerned citizens who had views and it is important to get those views. With regard to Wood Quay our generation will look back in years to come on a decision which it will be hard to justify. It is only with the co-operation and goodwill of An Taisce working with the commissioners and the Minister that we will arrive at an ideal solution, if it can be achieved. A requirement for consultation should be included in the Bill.
I have no difficulty with consultation with any group which has an interest in an area. I have great difficulty if the group moves into an area and takes over the role of the community. That is not consultation, rather it is a dictatorial approach. We can all give examples of that. I have no difficulty if they express their views through the local residents' association and let the community councils — who are well equipped and educated — deal with the issues. Consultation should be through the normal process in the area where the monument is situated. Outside bodies who may be knowledgeable should make a submission but it should not be normal procedure to consult them in regard to particular issues. I would have difficulty with that.
I do not understand how consultation can be as confined as that. If consultation is to mean anything it should mean consultation in the widest possible sense, whether through statutory agencies, non-statutory agencies or voluntary bodies. In many cases there is a fundamental conflict between the local needs and wishes and the national needs and wishes. That was evident in the case in County Clare and it can work in both ways.
The Grey Abbey outside Kildare town is a significant archaeological monument. However, a motorway is to be built and the question arises as to whether the motorway should go through the archaeological monument or around it. The local population might say that it should go around it because Kildare is a heritage town with many archaeological objects of significance. The national interest might require that the motorway should go through the abbey. Who arbitrates in those circumstances?
The opposite case exists in relation to Carton House, a hugely important building of international significance. A commercial company wants to develop golf courses and the local public representatives are faced with difficult decisions where planning permission is required to alter the building. Do we say that because of the need for jobs and to develop the economy in the area such a development should be allowed? Are we confronted with a situation where by allowing such a development the fundamental nature of the resource is being affected?
It is not always the case that what the local public representatives are saying is the same as what those who are involved in these matters nationally would say. There has to be a resolution and that is why the consultation has to be of the widest possible nature. Bodies who have expertise and a great interest in these matters and who have a long history of protection of such resources need to be consulted. I would not wish to see that consultation process restricted in any way. I do not think Senator Ormonde is suggesting that.
No. It should be integrated.
We are perhaps getting away from the amendment. However, there must be consultation. At times the local needs and wishes are not the same as the national needs and wishes and somebody has to reconcile the two.
(Donegal South-West): I should have said earlier that I am pleased Senators have welcomed amendment No. 19a. Its purpose is to improve the position. Heretofore, the commissioners could take these decisions without any consultation whatsoever, without any involvement of the Minister or the Oireachtas. The purpose of this is to ensure transparency. The commissioners know they must now go before the Minister and the Oireachtas, which will necessitate consultation. It is practically impossible to draw up a list of those who should be advised. An Taisce is a recognised voluntary body which takes an interest but I would be worried if it was not aware of an item like this laid before the House. As a public representative and a member of a local authority for many years, I have been amazed at An Taisce's awareness of events, irrespective of the size of the application or its location.
This order will go before the Oireachtas and there is no doubt that An Taisce and other interested parties, including individuals, will be aware of what is happening. Who better to reflect the views of those interested than Members of this House and Dáil Éireann, who will be fully briefed by these people? We have gone a long way; we do not deserve credit for that because it is necessary to give the Oireachtas and public representatives ample opportunity to discuss the matter. Members will represent these bodies, groups and individuals.
Why should we take it upon ourselves to advise any such group or individual? This will receive so much publicity that everyone will be aware of it. I appeal to Senators to accept this in good faith. We inserted this section to allay fears expressed in this House. It once more proves the effectiveness and value of the Seanad in introducing this amendment.
It is not the intention of the Office of Public Works, the Minister or myself to insist that there is not such openness. The Department of Arts, Culture and the Gaeltacht and the Office of Public Works are both extremely open and we want to ensure that continues. We are ensuring the Dáil and Seanad have an opportunity to debate the appropriate statutory order, which will not come into effect if it is annulled by either House. I ask the Senators to reconsider their position.
The role of the Houses has been expanded by committees of the Dáil, which go into greater detail on Committee Stages of Bills. Given the amount of legislation and publications involved, some matters can slip through the net. Newspapers, television stations and those involved in such organisations may not become aware of events until it is too late. When decisions are made at national or local level, public representatives may only have a certain amount of information. I do not suggest that information has been kept from them. They receive the views of the Office of Public Works or the Minister but there are other viewpoints, often coming from bodies like An Taisce with specialised expertise in a given field who may wish to give their views. Senator Ormonde will be aware what happens when decisions are taken. Bureaucracy gathers its own momentum.
Not where I am concerned.
Perhaps it gathers its own inertia.
There is a problem. I do not blame Members but when decisions are taken and ministerial views outlined, it can appear one is backing away when one gives ground. It is important to have consultation before decisions are taken.
I move amendment No. 20:
In page 9, line 47, to delete "within 4 days" and substitute "immediately".
The matter with which this amendment is concerned will not arise on a regular basis. It is not often that someone finds a wreck over 100 years old. However, when something of that nature is found it should be immediately reported to the relevant authorities, rather than within four days.
(Donegal South-West): I agree with Senator Enright that the sooner a find of this nature is reported the better. I expect that if a responsible person finds a wreck he or she will report it as a matter of priority. I do not wish to place an impossible burden on the finder of such a wreck. We do not know the circumstances in which a diver may find such a wreck or the difficulties which may be encountered in making a report. There could be pressing personal reasons for not making such a report immediately.
The requirement to report such a find within four days strikes a fair and reasonable balance between the need for urgent reporting and the personal priorities of the individual. Senator Enright, the House and I are anxious that this be reported as soon as possible. Since we do not know the circumstances, four days is reasonable.
I will not press the amendment but I ask the Minister to bear it in mind.
I move amendment No. 21:
In page 13, subparagraph (a), line 32, after "times" to insert "for a period of not less than two months".
This amendment will impose a time restriction. Paragraph 1 (1) (a) of the Schedule says the commissioners shall:
desposit in a Garda Síochána station in the district in which the land is situated a map or plan of the land and make the map or plan available there for inspection by members of the public at all reasonable times,
That is fine but for how long does that process take place? Is it a day or a week? The purpose of the amendment is that it should be for a period of not less than two months. This would be reasonably consistent with county development plans which are on public display for a defined period of time. When the comissioners have decided that they want to acquire land, there should be a defined period of time, which should not be a short period, whereby the maps are on public display.
I support Senator Dardis' amendment.
(Donegal South-West): The procedure set out here is in line with that in other legislation operated by the Office of Public Works. There is virtue in having uniformity of this nature. On the other hand, there is no reason the maps or plans of lands which are proposed to be compulsorily acquired should not be displayed for a period of two months; this is a waiting period during which objections to the procedure may be entertained. In this case, I accept the proposal in principle and I will bring in an amendment on Report Stage.
I thank the Minister for his reply.
I move amendment No. 22:
In page 14, subparagraph (2) (c), line 11, after "objection" to insert "(written, oral or both)".
This paragraph is vague and my amendment would clarify the situation.
(Donegal South-West): Any objection to a compulsory purchase will have to be deliberately considered by the Minister acting in a quasi-judicial manner. For such a formal procedure, a written objection would be essential. The next paragraph 2 (1) of the Schedule makes it clear that any objection must be submitted in writing within two months. This is a standard and reasonable procedure.
I move amendment No. 23:
In page 14, subparagraph (3) (a), line 28, after "Minister" to insert "acting on the advice of an independent arbitrator appointed by the Minister".
This relates to the compulsory acquisition of land and the powers of the Minister in respect of that acquisition. The Minister should not be able to unilaterally decide these matters. It comes back to the question of consultation. Regarding land acquisition under the motorway Acts — and I have personal experience of this — in the event of a person being unhappy with the offer that has been made, he then has the right of appeal at arbitration. That can go for or against him and if it goes against, costs can also be awarded against him. It should be wider than just the Minister's remit. There should be an independent arbitrator who can act perhaps to the extent of valuing the land. There should be some vehicle of that nature in the legislation.
On Second Stage I raised the issue of procedures for objection by an owner to the compulsory acquisition of land. I am playing devil's advocate here in wanting more information. I understand that an objection goes to the commissioners and they forward it to the Minister but the Minister can only refuse if some format has not been adhered to by the commissioners. Is that correct? I would like more general information on that because it relates to this area.
With regard to Senator Dardis' amendment, I would have gone a stage further in seeking a totally independent arbitrator who would be appointed by an independent group in the event of a failure to reach agreement. If somebody is appointed by one side as an independent arbitrator it fetters their independence to some extent. I would have sought a totally independent arbitrator.
(Donegal South-West): This proposal would remove the decision from the Minister to an independent arbitrator. The purpose of this paragraph is to ensure that where the owner or occupier of land which is to be acquired makes an objection, the Minister for Arts, Culture and the Gaeltacht must consider the matter before deciding whether to give his consent. The consent of the Minister for Finance is also required and it would be open to the Minister to seek whatever advice he felt desirable in the particular circumstances. On occasions the advice of an arbitrator might be useful. However, the Minister would have to be free to consider each case on its merits. If we were to accept this amendment, it would remove the decision making from the Minister to an arbitrator and would tie the Minister's hands completely. The Minister will first seek the observations of the Office of Public Works. He can obtain advice from experts and he is in a position to appoint an arbitrator if he so wishes and if he feels that is in the best interests.
This paragraph is concerned with the principle of whether the property should be compulsorily acquired. It has nothing to do with the amount of compensation to be paid. If we were to accept this proposal it would remove the decision entirely from the Minister to an independent arbitrator. The Minister can obtain and request advice from various individuals, experts or groups and he can also appoint an arbitrator.
Why is the Minister of State not agreeable to the proposal for the Minister to act on the advice of an independent arbitrator? He should accept an independent arbitrator.
(Donegal South-West): It may be that the Minister will decide to seek the advice of experts or to appoint an arbitrator. If this amendment was accepted it would tie his hands completely. Its effect would be to prevent the Minister in practical terms from taking the final decision and I do not think that is the intention of the House.
I would be in favour of tying the Minister's hands, and that is precisely the objective of the exercise. Senator Enright made a reasonable point. How can the Minister appoint a person who is an independent arbitrator? The difficulty with that is finding a formula of words. There are many precedents and I quoted what happens under the motorways Act. At one time, if someone had a disagreement as to the valuation of property for death duties or whatever, and one side submitted one valuation and the other side submitted another, there was an independent arbitration system in place.
Matters of this kind can be difficult and the result of not introducing a measure such as this would be to encourage people to go to the High Court to establish their rights. Many people who are not in a position to do this because of a lack of resources may be victimised in consequence.
It would be undesirable to return to the methods of the Land Commission given what the commission did to some people over the years. However, the proposed arrangements allow the Minister almost to reach the point of victimising an individual. While the Minister may appoint an arbitrator, he may not if he so desires.
I welcome the Minister's reply. He has given a commitment that he will consult with advisers and experts regarding any project if so desired. The input of the Minister cannot be ruled out in this process. To do so and to introduce an independent arbitrator could result in bias in any given situation. The correct approach is to introduce experts as required.
I am surprised at Senator Ormonde's remarks, I usually agree with many of her views, but I strongly disagree with her comments in this instance. I am not sure if I am procedurally correct at this point, but under section 3 (1) of the Schedule to the Bill, the Minister and the commissioners decide the amount of compensation to be paid for, say. Senator Ormonde's land or property.
I did not say that.
Perhaps it is not what the Senator said but matters are moving in that direction given the oveall context of the measures proposed under this section.
Regularly the local authorities acquire land and matters proceed to arbitration. The Leas-Chathaoirleach and all the Senators who sit on local authorities are familiar with these procedures. There is an obligation in such instances to go to arbitration. The Bill should include a provision whereby, if it is required, an independent arbitrator shall be appointed.
There are many arbitrators to undertake this work and in the event of failure to agree, one should be nominated by a body such as the Incorporated Law Society of Ireland or the Irish Auctioneers and Valuers Institute, which should be empowered to this effect.
We should never oblige the Minister to act in this way. In each case the structures must be in place to enable analysis to take place accordingly.
(Donegal South-West): Regarding the point raised by Senator Enright, I refer him to paragraph 5 (2) of the Schedule to the Bill. The Minister will make an offer, and I emphasis that this offer is not made solely by the Minister for Arts, Culture and the Gaeltacht, and the Minister for Agriculture, Food and Forestry. The consent of the Minister for Finance will also be required. If the offer, that is the assessment of compensation under the Lands Clauses Acts, is not acceptable, then paragraph 5 (2) of the Schedule to the Bill provides for the appointment of an arbitrator at that stage. There is provision under the Lands Clauses Acts for the appointment of such an Arbitrator if the offer made by the Minister is not accepted. Hopefully Senator Enright will find this acceptable.
I move amendment No. 24:
In page 14, between lines 30 and 31, to insert the following subparagraph:
"(b) The Minister shall consider the objection for no less than one month from the date it had been referred to him by the commissioners".
This refers to cases where people make objections regarding compulsory acquisitions for the consideration of the Minister. The purpose of the amendment is to impose a time frame. It is undesirable that the Minister could decide within days of an objection being referred to him by the commissioners and the purpose of the amendment is to provide breathing space.
(Donegal South-West): The amount of time required for the Minister to consider objections will vary from case to case and from time to time. It may be that frivolous or unsupported objections can be dealt with quickly while well substantiated cases would take considerably longer.
This proposal would not be helpful to the Minister, the commissioners purchasing the property and the person lodging an objection, all of whom would be required to wait at least the one month required by the amendment for the Minister to consider the objection.
The Minister should take as long as necessary to make decisions of this kind. At all times it would be the intention of the Minister not to take any additional time but to take as long as is necessary, bearing in mind that the time factor would change from case to case.
I move amendment No. 25:
In page 15, subparagraph (5) (b), line 11, to delete "shall" and substitute may".
This refers to paragraph 2 (5) of the Schedule to the Bill: "On an application under subparagraph (4) of this paragraph in relation to land" and subparagraph 2 (5) (b) states: "in any other case, the Minister and the Minister for Finance shall grant their consent to the compulsory acquisition of the land."
The amendment proposes that the word "shall" be replaced by the word "may". Senator Ormonde should support this amendment because we are endeavouring to remove an obligation rather than impose one. For the sake of consistency, I am confident she will support the amendment when it is put to a vote. It should not be obligatory on the Minister for Finance to grant their consent to the compulsory acquisition of the land; there should be an element of discretion.
(Donegal South-West): The purpose of paragraph 2 (5) of the Schedule to the Bill is to require the Minister to make a decision one way or the other, to refuse to consent to the acquisition of land, to agree to the acquisition of only some of the land or to agree to the acquisition of all of the land. The proposed amendment suggest that the Minister would, in certain circumstances, make no decision at all. This would be unsatisfactory.
While I appreciate the point made by Senator Dardis in requesting me to consider the deletion of the word "shall" and substitute it with the word "may", Ministers who wish to take a decision would find themselves in a situation where they would make no decision at all.
I accept the Minister's argument. He has won me over at last.
The Minister referred to the powers of arbitration under the Lands Clauses Acts. Senator Dardis's proposal regarding an independent arbitrator should be considered and included in the Bill. People must be compensated for the loss of or a reduction in the value of their land. Although the Minister said the powers of an arbitrator are covered by the Lands Clauses Act, this should be included in the Bill.
(Donegal South-West): I will consider the points made by Senator Enright and other Senators.
I refer to paragraph 5 (1) of the Schedule relating to compensation. Under the terms of the Bill, people are compensated for the acquisition of land, easements, titles or interests and the finder of an object may be paid. However, the Director of the National Museum may enter land to safeguard or remove an object and if property is damaged, there is nothing in this Bill which states that the landowner must be compensated. I do not understand that.
(Donegal South-West): I draw Senator Dardis's attention to the Lands Clauses Act which is defined in the Interpretation Act. I have no difficulty with the word “compensation” rather than “pay”. In the event of any difficulty under the Lands Clauses Act, paragraph 5 (2) of the Schedule provides for the appointment of an arbitrator if the offer of the Minister for Finance and the Minister for the Arts, Culture and the Gaeltacht is not accepted. I will consider suggestions if they improve the Bill.
The difficulty is that we are compensating people where land is vested or acquired. However, there are many cases where it would not be necessary to acquire land. For example, if a Viking boat was found in Clontarf and it was removed, there would be no need to acquire the land, but how would that person be compensated for damage to their property? It is unacceptable if such a provision is not included in the Bill. The Director of the National Museum may unilaterally enter land without giving notice — we tried to improve the Bill so that notice would be given — and the landowner has no comeback if the land is not acquired.
(Donegal South-West): I do not believe the Office of Public Works could carry out an excavation without acquiring the land. It is the intention to compensate if it is necessary to purchase the land. If a Viking boat was found in Clontarf and it was necessary to excavate the remnants of the vessel, it would be for the commissioners to decide whether to acquire the land and compensate the landowner.
There is no obligation to acquire the land. If an archaeological object is found in a field of wheat or potatoes, the Director of the National Museum may, without any obligation to inform the landowner, arrive with his JCB, drive across the land and affect the crop, but there is nothing in the Bill which states the landowner must be compensated. That is not good enough.
(Donegal South-West): If the Office of Public Works did not acquire the land and it was necessary to compensate, that would be provided. It is not necessary to acquire the land to pay compensation. As regards the Director of the National Museum, I will put down an amendment on Report Stage which will allay Senator Dardis's fears.
I am pleased the Minister intends to table an amendment because there are situations where it would be necessary to acquire land but where damage could be done. We are compensating the finder of an object and the person whose land is acquired, but not the landowner if his land is not acquired. It is not good enough to say the Director of the National Museum will compensate people. That provision must be included in the Bill, otherwise it is not equitable. It does not have to be in the section where we proposed an amendment which was ruled out of order because of a potential charge on the Exchequer. Where property is entered by, for example, a local authority to construct a road or to dig a hole in a field, people are compensated.
It is unlikely that an object would be found in a field of wheat. Do people ramble around fields of wheat looking for objects? When a field of wheat is cut or ploughed an object may be found.
(Donegal South-West): The purpose of the powers given to the Director of the National Museum is to allow immediate action to secure an object on a site against damage. I will clarify this on Report Stage.
When is it proposed to take the next Stage?
We will adjourn until 2 p.m. so that amendments may be circulated.
Might we adjourn until 2.15 p.m.?
It was agreed on the Order of Business that there would be a sos between 1 p.m. and 2 p.m. and a short sos between Committee and Report Stages.
On a point of order, in reply to a question I asked on the Order of Business, the Leader of the House said he would allow sufficient time.
Agreed to take remaining Stages today.