There is a correction to Government amendment No. 1. After the year "1991" in the third line of subparagraph (2) (a) (i), a footnote reference — that is, ¹ — should appear.
Waste Management Bill, 1995: Committee Stage.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Government amendment No. 1:
In page 9, lines 28 to 38, to delete subsection (2) (a) and substitute the following:
"(2) (a) In this Act, ‘hazardous waste' means
(i) hazardous waste for the time being mentioned in the list prepared pursuant to Article 1 (4) of Council Directive 91/689/ EEC of 12 December, 1991, being either—
(I) Category I waste that has any of the properties specified in Part III of the Second Schedule, or
(II) Category II waste that—
(A) contains any of the constituents specified in Part II of the Second Schedule, and
(B) has any of the properties specified in Part III of the said Schedule,
(ii) such other waste, having any of the properties specified in Part III of the Second Schedule, as may be prescribed for the purposes of this definition."
This amendment provides for a revised definition of "hazardous waste" to bring it more fully into line with the EU definition. It has been brought forward in response to comments by the Irish Business and Employers Confederation that the existing definition was significantly broader in its scope than that provided for under European law.
I want to express appreciation to IBEC for its comprehensive briefing material suggesting that such an amendment be put in place. I refrained from putting an amendment forward when I saw the Minister's amendment and I thank him for introducing it.
Senator Daly clearly has information I do not. Perhaps a substantial amount of this has been taken out of the Schedule. I have not seen it but I am sure the Senator would not let anything go by that I would not agree with.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Amendment No. 2 is consequential on amendments Nos. 23 and 24 and all may be discussed together.
Government amendment No. 2:
In page 15, subsection (1), to delete lines 1 and 2, and substitute the following:
"‘vehicle' includes—
(a) part of a vehicle,
(b) an article designed as a vehicle but not capable of functioning as a vehicle,
(c) a skip designed or used for carriage on a vehicle,
(d) a load on a vehicle;".
The effect of these three amendments is to strengthen the law on abandoned vehicles. They will repeal the existing provisions of the Litter Act, 1982, concerning abandoned vehicles and insert a new section in the Bill to deal with the matter. The proposed section 71 expresses a re-enactment and strengthening of the existing provisions in sections 10 to 13 of the Litter Act in this regard.
Amendment No. 2 proposes to amend the definition of "vehicle" in section 5. This amendment is consequential on the proposed insertion of the new section 71. The existing definition of the word "vehicle" would be replaced with the more extensive definition in the Litter Act so that it now includes a part of a vehicle, a load on a vehicle and a vehicle no longer capable of functioning as such, for example, a bulk or wrecked vehicle. Amendment No. 23 is the principal amendment. It proposes to add a new section 71 to the Bill to deal with abandoned vehicles. Amendment No. 24 proposes to repeal sections 9 to 13 of the Litter Act, which deal with abandoned vehicles. These provisions would be replaced and updated with the proposed new section 71 and related amendments.
On Second Stage I advised about the complicated way this legislation was being dealt with in that a number of Acts were mentioned or repealed and the overall picture was confusing. Since the initial debate these amendments have been added. We could go on like this. This is acceptable to me but it is an undesirable situation, which is why I suggested it might be timely for the Minister to look at the possibility of consolidating much of this legislation.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
Section 5 (1) defines "dealer" and there is also a procedure in later sections about the regulations governing dealers. Will there be a specific dealer's licence similar to that a fish dealer must get before they can buy and sell fish because it is not clear in this definition?
European law dictates that dealers would be registered but collectors would require a permit in this case.
In the case of a fish licence, an applicant must apply to the District Court for a certificate on the fitness of their premises. I am not sure whether there is a provision in later sections of this Bill specifically setting out how dealers will be registered or whether the suitability of the premises in which they operate will have to be the subject of court proceedings. It may be found that in certain cases, that the premises where dealers plan to operate could give rise to serious concern from the point of view of the operation in which they might be involved, especially for community and local residents. A mechanism where dealers could be brought before the courts to certify that their premises are fit for this type of operation might be put in place.
Collectors must get a permit from the local authority and I am informed that dealers must register with the local authority.
This question comes up in later sections of the Bill and we might then have a further opportunity to expand on it. However, it would have been better if a specific mechanism for registering these dealers with a special licence had been put in place providing an opportunity for people who are dissatisfied, or may have valid concerns about these dealers, to raise these issues at District Court level similar to the procedure which is in place for those who wish to set up a fishmonger business. Section 5 deals with run-offs from landfills. Will, say, run-offs from silage pits be covered by this section?
Every form of waste is covered by the Bill. Therefore, those run offs would be covered.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
This section repeals a large amount of legislation governing specific areas of activity. Is it sensible and wise to do this as this new legislation has not been fully tested while the old legislation has, in many instances, stood the test of time?
The Minister of State will be aware that some of this legislation has been contested strenuously in the courts. Where we are introducing new legislation and repealing legislation which has already resulted in convictions for offences, is it wise to repeal the whole body of legislation which has been effective in the control of pollution and such matters?
I am interested particularly in the pollution of rivers. The legislation proposed to be appealed includes some of the Acts relating to fisheries and water pollution. In an area as complex as this it would appear to be advisable and wise, even though we are strengthening legislation here, to leave in place some of the Acts which have stood the test of time.
This section provides for the repeal or revocation of the enactments and regulations listed in the Fifth Schedule. The specified enactments are obsolete, have been overtaken by more recent legislation or have been incorporated into this Bill for consolidation purposes. The specified regulations were all made under the European Communities Act, 1977, and will, in due course, be replaced as necessary by regulations made under the Waste Management Act.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
This section gives the Minister wide powers which, to my mind, would allow him to ignore sections of the Bill if he wished. I am subject to correction on that and I hope he will correct me.
Section 7 (6) states "If in any respect any difficulty arises in bringing any provision of this Act into operation or in relation to the operation of any such provision, the Minister may by regulations do anything which appears to him or her to be necessary or expedient. . . ". I wonder what sort of circumstances are envisaged there because, where somebody is avoiding their responsibilities it appears there are grounds for the Minister to introduce a regulation which would allow them to do so. That is my concern. I am prepared to listen to what the Minister has to say to alleviate that concern. It is a genuine concern because the Minister appears to have wide discretionary powers under the section.
This is a contingency section in case difficulties arise over a two year period. Where difficulties arise, they would be addressed in that way.
I cannot determine what the Minister is endeavouring to achieve by section 7 (5) (b). It is confusing. It is a conundrum which I cannot follow. At the end of the day, must any amendment or revocation of a direction be brought before the Houses to be endorsed? If it must, we would have an opportunity to discuss it.
What is the difference between an order and a direction? What are the implications of one rather than the other? I do not want this to take up time as I should know the answer already.
An order is a statutory direction given by the Minister whereas a direction is advice given. In relation to Senator Daly's concerns, section 7 (5) (b) provides that the agency may, by direction, amend or revoke a direction already given by it.
It is only a semantic point but it is a tautology to say that a direction may amend or revoke a direction. It does not make any grammatical sense to me. I notice an outbreak of the "in relation to" disease; it is evident in this Bill. I am sorry to have to come back to this after all this time but "in relation to" has broken out all over this Bill, almost to the point of being a rash. Subsection (6) states: "If in any respect any difficulty arises in bringing any provision of this Act into operation or in relation to the operation . . ." Why not say "for the operation"? Why does the phrase "in relation to" have to crop up everywhere? My campaign against it continues unabated.
Does it have to come back to the House? The order would have to come back but the direction does not.
A direction given by the agency in its own right does not have to come back here.
It is the explanatory memorandum which has confused the issue.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
Does this section cover offences committed by local authorities?
It does.
Is there any particular reason this was not written in? Members will be aware that over the years local authorities have been in serious breach of legislation, especially in relation to pollution which has caused widespread damage to the fishery industry. There was a fear, especially in that industry, that the local authorities might evade prosecution. Why have the local authorities not been specifically written into this legislation?
A local authority is a body corporate. The point raised by the Senator can be dealt with on Report Stage.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
Section 10 (1) (a) reads: "on summary conviction, to a fine not exceeding £1,500 . . ." Why that figure rather than £1,000, £2,000 or ten times that much?
This section specifies the maximum penalties which may be imposed on a person convicted of an offence under the Act. A person who is summarily convicted will be liable to a maximum fine of £1,500 or imprisonment for 12 months, or both. A person convicted on indictment will be liable to a maximum fine of £10 million or imprisonment for up to ten years, or both. One thousand five hundred pounds is the figure that has been decided upon in this legislation.
My point relates more to the fine than to the size of the fine. It is easy for the Government to spend other people's money. I can understand a £10 million maximum in the case of an oil spillage; maybe it should be £20 or £30 million. I am not whingeing on behalf of businesses, but I am concerned at the ease with which it is possible to impose fines without, as far as I can see, any particular restriction. I am not questioning whether it is right to give total power to impose a fine without having regard to the ability of a business to meet it, but to what extent would the Minister be prepared to look at the Bill with a view to imposing some broad requirement, perhaps on Report Stage, which would inhibit a local authority from ignoring the ability of a business to pay? It may exist somewhere but I was not able to find it.
I am always impressed at the ease with which people can spend other people's money. If the fine included State money in some form or other, I wonder to what extent would we leave such lack of control on the ability to impose that fine.
On Second Stage I raised the difference between the fine on summary conviction of £1,500 and the maximum fine of £10 million. On that occasion I recall saying that such a discrepancy brought the issue of fines into disrepute. It seemed that figures were being pulled out of the air. It is inadvisable that we adopt this approach.
The sum of £1,500 is the maximum fine that can be imposed by the District Court. The figure of £10 million is to act as a deterrent to private companies against a major oil spill or catastrophe resulting from major neglect or carelessness. The ultimate figure is a matter for the courts but it is our duty to put in place a deterrent which will ensure that people will take their responsibilities seriously.
I understand that and I made the point myself that £10 million might not be enough for a major oil spillage but is it possible to take account of the ability of the party to pay? I can understand where businesses make mistakes and deserve to be fined but the Minister might consider making provision for taking the size of the fine into account before the case goes to court.
I do not want to linger unduly over this point because it may appear to be not particularly relevant. However, there are serious issues arising in terms of how the State goes about concealing possible penalties. I take Senator Quinn's point but one could turn it around and ask why there should be a limit of £10 million where a clean up costs £20 million or £30 million. When one takes all the variables into account, £10 million might be peanuts for a major oil enterprise. Why should the State limit the possible penalty if other circumstances seem to justify a more severe one?
The maximum fine is £10 million. Senator Quinn asked whether consideration should be given to the means and ability of the offender or convicted party to pay. The court will decide the level of fine to be imposed in light of the ability of the person to pay. As well as imposing the maximum fine of £10 million, the court can decide that the offender should be responsible for the clean up operation and repair of the damage done to the environment. That would be in addition to the £10 million fine.
Is that already in legislation?
It is in this Bill.
Question put and agreed to.
Sections 11 and 12 agreed to.
SECTION 13.
Amendments Nos. 2a, 2b and 2c are cognate and may be discussed together.
I move amendment No. 2a:
In page 19, line 5, after "Agency" to insert "or the Regional Fishery Board for the area".
It is necessary to insert into the legislation the fact that fishery boards would be entitled to a share of fines where penalties are being shared out between different authorities. I am aware that legislation already exists whereby a proportion or all of a fine can be paid to the relevant fisheries board, for example, where pollution damages a region's fisheries.
If the Minister can assure me that payment of some of these fines is already covered under the section, and that boards can receive part of the fines, then the amendment is unnecessary. However, it does not appear that regional fishery boards would be entitled to a share of fines or payments under this section.
I support Senator Daly on this issue. One can envisage circumstances where there is a major fish kill and the reinstatement of the fishery would logically fall to the fisheries board which should be given the resources to do the job. The fine would arise as a direct result of the loss of the fishery and, consequently, it should be devoted to its reinstatement. Since the fishery board would undertake the reinstatement, the amendment are sensible.
These amendments would empower regional fishery boards to apply to the courts for payment of fines imposed on foot of a prosecution under the Waste Management Bill to be paid to the board. I consider these amendments are unnecessary and I cannot accept them because section 11 (2) provides that
. . . the Minister may, by regulations, provide that summary proceedings for an offence aforesaid specified in the regulations may be brought by such person (including the Minister) as is so specified.
If regional fishery boards are so specified under that subsection, they would be empowered under section 13 to make application to a court for payment of fines arising from any summary proceedings brought by them under this Bill.
The effect of the proposed amendments would be to provide that a regional fishery board could make application for the payment to it of a fine in a case in which it played no part. This would certainly be inappropriate. Regional fishery boards are empowered to take summary proceedings for offences under the Water Pollution Acts of 1977 and 1990, and to make application for the payment of fines arising from such proceedings.
When the legislation was being strengthened a few years ago because of cases of severe pollution that had taken place, the Water Pollution Act was being operated by local authorities and the Fisheries Acts were being operated by regional fishery boards. An attempt was made to bring these together so that the most effective body of legislation would be in place to fight the increasing damage being done by pollution, especially to inland fisheries. Everybody in this House knows that damage to fisheries arising from pollution has been escalating in recent years.
Since definitions, including seepage from silage, are covered in this legislation, one could find a local authority bringing a charge because of an incident causing £100,000 worth of damage to a fishery. As Senator Dardis said, the local fishery board has responsibility to restore the fishery but, even where a substantial fine is imposed, the board will not be in a position to claim part of it.
In moving these amendments it was not my intention that the fishery board would seek part of a fine. However, where fines relate to pollution which has damaged fisheries and waters in a region, it is only reasonable and fair that this provision should be inserted into the section. The Minister has made a case for it rather than against it.
The Minister mentioned penalties under the Fisheries Act and the Water Pollution Acts, but they are much less than the penalties specified on indictment in this Bill. I am the chairman of a local angling club which was forced to take civil action to recover money to allow us to restock a damaged river.
We must examine what happened to Lough Sheelin, a resource which was worth many millions of pounds. It brought a substantial amount of money to the local economy, yet it was almost destroyed. It has taken much voluntary effort to restore the lake. The same thing happened in Lough Ennell where the local authority allowed the enrichment of the lake through the absence of tertiary treatment. For many years that lake was unfishable.
I am prepared to accept what the Minister said about section 13, but I would be happy to do it by way of an amendment to section 11 (2) if the Minister so wished. The Minister has made orders and directions and now he is making regulations. He is becoming involved in all these matters to an unhealthy degree.
Fishery boards should have a function which, I am prepared to concede, might be dealt with under section 11 (2), although I think Senator Daly's amendment to section 13 is a stronger way of doing it. In the event of that not being acceptable, however, the Minister might consider amending section 11 (2) on Report Stage to deal with this aspect.
Senator Daly and Senator Dardis have a reasonable case. This is a formidable and, in many respects, a magnificent piece of legislation with a massive amount of detail. Pollution of rivers and fisheries springs to most people's minds in terms of the public's perception of some of the country's worst cases of pollution.
If we can have so much detail in the Bill there is a strong case for specifying the role of regional fishery boards in this respect. If we do not specify it, we are disappointing a certain public expectation as to the consequences that not merely may flow but will flow from this Bill.
Section 11 (2) states that:
. . . the Minister may, by regulations, provide that summary proceedings for an offence aforesaid specified in the regulations may be brought . . .
Without doubting the Minister's goodwill, Senator Daly and Senator Dardis have made a strong case for including this amendment. I hope the Minister will be prepared to look at it on Report Stage.
Senator Dardis mentioned the range of fines. The Environmental Protection Agency Act, 1992, defines fines up to a maximum of £10 million. As well as being fined, polluters can be ordered to meet the cost of any necessary clean up involved. If fishery boards are faced with a huge cost factor in cleaning up an area under their responsibility they can pursue the matter to recover the clean up costs. As well as the regional fishery boards, other bodies that could be so defined are, for example, harbour authorities, health boards and a range of other statutory bodies.
I understand the points that have been made and I undertake to give consideration to prescribing fishery boards as prosecuting authorities and allowing them to apply to the courts for payment of fines. The suggestion that we should look at it again on Report Stage gives us time to think about what has been said. We will address it again on Report Stage.
I am satisfied with that assurance. I would draw the Minister's attention, however, to the fact that the fishery boards were very suspicious of local authorities and how they would be treated in terms of fines, especially when the local authorities were causing so much pollution themselves. I recall many cases in which Clare County Council caused deleterious matter to flow into the Annageeragh River, one of the best salmon rivers in west Clare in which I am sure Senator Dardis has fished, and wiped out the entire fish stock. The fishery board spent years trying to get a few pounds from the county council to repair the damage. Boards are rightly wary of local authorities in this matter. We must be clear about this, otherwise local authorities will try to evade their responsibilities.
To reinforce what Senator Daly said, we must be conscious of the optics of this as far as the public is concerned. This is public education legislation in certain respects in terms of consciousness raising and enhancing awareness. Since the public is far more aware of the importance attached to particular agencies and approaches when mentioned specifically, this is desirable. I accept the Minister's willingness to look at this on Report Stage and to specify regional fishery boards. As far as public perception is concerned, regional fishery boards would rank highly in terms of which authority should have power to take action against pollution and waste.
The Bill does not interfere with the rights of fishery boards to pursue a course of action.
We know that.
Under the Water Pollution Act and the Fisheries Act, water polluters can be required to make good the damage done to any of the parties involved. That would deal with the Senator's concerns in relation to the fishery boards.
It does not.
Their powers are not eroded or interfered with and they have the right to pursue people through the courts to get damages which they believe they deserve.
I am encouraged by the tone of the Minister's response to Senator Daly's amendments. Local authorities' determination to rectify damage to fisheries is much less than that of the regional fishery boards. Senator Daly is right in that it is frequently suggested that farmers and industrialists are the main polluters. I believe evidence would suggest that local authorities, certainly in terms of the magnitude of pollution, are the greatest offenders. I know that a local authority was sued by a fishing club to recover damages.
The Minister made a point about fines under the Environmental Protection Agency Act. In my experience prosecutions have arisen as a result of the Fisheries Act and the Water Pollution Act rather than from the Environmental Protection Agency Act. I do not know of any prosecutions in respect of pollution of fisheries which have arisen from that legislation.
Last Monday Kildare County Council discussed the water quality management plan for the River Liffey. At present Dublin Corporation abstracts 52 million gallons per day from the waterworks at Ballymore Eustace. It has permission to increase this to 70 million gallons per day, although its original intention was to abstract 120 million gallons. Now the corporation is talking about 100 million gallons as a compromise. The mean flow of water in the River Liffey is 190 million gallons per day. The suggestion is to abstract half of the water from the head waters of the River Liffey and lose one third of it through the pipes of Dublin because they leak. One must question the determination at local authority level to preserve resources which have survived intact since the Ice Age.
As I said, the Bill does not interfere with the powers of the regional fishery boards to pursue whatever course of action they decide on. As regards the suggestion in relation to section 11 (2), I will consider specifying regional fishery boards which would give them the power to take summary proceedings under the Waste Management Bill. It is something we will consider. Fishery boards are not dependent on local authorities to take decisions on their behalf.
I am aware of that and it was deliberately done that way. When the Water Pollution Act was introduced — I was in Government at the time — a deliberate decision was taken to leave fishery boards with their own powers and functions because of the fear that local authorities would continue to pollute and show the same reluctance to repair damage. We want the boards to be named in the legislation. If the Minister assures us that he will look at this favourably before Report Stage, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 2b and 2c not moved.
Section 13 agreed to.
SECTION 14.
I move amendment No. 2d:
In page 19, lines 27 to 31, to delete subsection (2).
This amendment relates to authorised officers and their authority to enter private dwellings about which I am concerned. When we discussed other legislation, serious reservations were expressed about the rights of the Garda to enter private dwellings in connection with offences. I am not sure we should deal with this in this fashion.
This amendment would delete section 14 (2) which qualifies the right of an authorised officer to enter a private dwelling where there are reasonable grounds for believing that there may be a risk of environmental pollution arising from the carrying on of an activity at the premises. I cannot accept this amendment because the provisions of subsection (2) are reasonable and necessary. The subsection places a restriction on the right of entry to a private dwelling without the consent of the occupier. An authorised person must give at least 24 hours' notice before entering a private dwelling unless a District Court warrant is obtained under subsection (7).
This provision is designed to safeguard domestic privacy. Entry to a private dwelling is likely to arise only in exceptional circumstances — for example, for the purpose of securing or inspecting records. Broadly similar provisions can be found in sections 81 and 83 of the Planning Act, 1963, section 28 of the Water Pollution Act, 1977, section 22 of the Fire Services Act, 1981, section 14 of the Air Pollution Act, 1987, and section 13 of the Environmental Protection Agency Act.
If the Minister could assure me that entry into a private dwelling would not take place without a court warrant, I would be prepared to accept that. However, this is not the case. We are not clear who these authorised officers will be, their qualifications, status and authority. Therefore I am reluctant to give authorised officers powers to walk into somebody's private dwelling.
These safeguards are necessary on constitutional grounds. Subsection (7) provides that where authorised persons in the performance of their duties are prevented from entering a premises, where they have reason to believe that evidence on a premises relating to a suspected offence may be interfered with, they or the body which appointed them — the agency or a local authority — may apply to the District Court for a warrant authorising entry to the premises, which may include a private dwelling, for the purposes of exercising their powers under this section. The warrant, which may provide for Garda assistance if considered necessary, must be executed within one month of the date of issue.
The question related to the term "authorised person". That is defined in section 5 to mean a person appointed by the Minister, the local authority, the agency or any other person who may be so prescribed in regulations made by the Minister.
We have not seen the regulations so we are not sure precisely who the authorised officer will be. In such a situation I am reluctant to give a person, who will be defined by ministerial regulation under section 5, more authority than some members of the Garda Síochána have at present. The issue of a private dwelling is important. If the Minister of State can give an assurance that an authorised officer who enters a private dwelling will have a warrant from the District Court, that would be a reasonable compromise.
All of us would have a sense of unease if there was any danger of abuse, if there is lingering uncertainty about who these people will be and if regulations about them must still be made. Senator Daly's unease about the matter is not confined to himself. I recognise there are protections and provisions but striking the balance is the problem.
Senator Daly wishes to know who these people will be. They can be defined by regulation; for example, with regard to the Senator's earlier uneasiness about excluding the fishery board, we could prescribe officers of the fishery board as officers. That is something we will look at.
The authorised officers of fishery boards have a warrant and authorisations which carry the seal of the board. Under this section authorised officers will have a certificate. Will it be similar to the warrant that is available to fisheries personnel? I cannot accept a situation where an individual who has limited experience and knowledge of an incident might have the power to walk into somebody's private house without warrant or authority, other than something conferred by regulation.
The Minister of State understands that Senator Daly's doubts about this section are shared by other Senators. Perhaps he would look at the section before Report Stage. To be able to enter somebody's house without a warrant and with just 24 hours' notice appears to be a draconian measure especially when, as Senator Daly has pointed out, we do not know at this stage who these people will be.
The difficulty arises over the categories of people who would be allowed to enter. The normal image we have is that such a person would be a member of the Garda. That is a reasonable power where there is suspicion of illegality. However, we are extending that power to a wide range of people and that is the disquieting aspect: the categories of people upon whom this power is conferred and not the power in itself. We accept that there would be circumstances where it might be necessary to effect an entry but the question at issue is the categories of people who are allowed to effect the entry.
When the Road Traffic Act was being discussed there was much debate about this aspect of the legislation as it related to the Garda Síochána. I had personal experience over Christmas of how the legislation worked. A road block was located very close to my house. Several people came to visit me and their cars turned into my home quite legitimately. The gardaí, however, thought they were avoiding the road block and arrived into my yard. They did not need a warrant as under the Act they were entitled to do it. However, it is an uncomfortable experience to have the gardaí arrive at one's doorstep while guests wonder why they have been followed. None of them had any intoxicating liquor taken.
At that stage.
I support Senator Daly and the other Senators. I was surprised to hear the list of legislation the Minister of State read out and to realise how we have whittled away one's right to the privacy of one's home. The Minister offered a number of examples of legislation under which people have the right to come into one's home without a warrant. That list would not be the end of the matter because I am quite sure that other legislation would include VAT and tax inspectors and many others whose rights of entry would have surprised those who thought of their home as their castle and who thought they had the right to privacy in their homes. This provision appears to be even vaguer because the terms used in regard to those who have the right to come to one's home are not prescribed in the detail with which I would be happy. I urge the Minister to look at this again.
Senator Dardis and Senator Quinn have brought to our attention the open ended nature of the possible categories of people who could be specified as qualified or authorised. I presume these follow from the groupings in section 11 (2) which the Minister may, by regulation, authorise. It is potentially open ended. There is also a more general principle involved. Obviously as the complexity of modern life becomes more intense the State must be involved in more aspects of life. There must be more regulations, intrusions and controls. However, this opens up possible interference with traditional personal rights and that is something about which the Oireachtas should be very conscious.
The parameters or definitions being used in this legislation are similar to those used in the other legislation to which I referred earlier. There is no question of an erosion of or imposition on people's rights. However, anxieties and worries exist. Even though I might consider them theoretical, it is something we will look at in more detail on Report Stage.
An Leas-Chathaoirleach
Is the amendment being pressed?
I am tempted to press the amendment. On the other hand, I am anxious to facilitate the Minister and I do not wish to unduly delay the passing of this legislation. If the Minister of State gives me an assurance that he will examine this carefully and put forward an amendment on Report Stage, I will withdraw the amendment. However, I do not think he will do that.
If the amendment is pressed and won the Senator will open up the right to enter premises. He will loosen the law and allow more ready access to premises. The result will be the opposite of what he is trying to achieve. I will set out our position in more detail on Report Stage. If the Senator succeeds in passing the amendment he will achieve what he is trying to prevent.
This is why I said earlier that if the Minister of State could show me a better way of doing this I would be happy to accept it. I would like to see a provision that an authorised officer could not enter a private dwelling without a warrant from the District Court. It should be easy to draft such an amendment. If the Minister of State says he will include an amendment of that nature on Report Stage, I will withdraw the amendment.
The Minister of State stated that provisions in this section are similar to those used in other Bills. I am concerned with his use of the word "similar".
They are the same.
Are they? It seems that each step we take means a small erosion of one's freedom within one's home. I foresee that a Bill might be introduced in the next number of years and the Minister involved will state that its provisions are no different to those of the Waste Management Bill. I fear that this represents another small erosion of our rights. It worries me and I hope the Minister will take Senator Daly's concerns into account.
I accept the concerns expressed. However, the legislation to which I referred earlier involves the Department of the Environment. There is a range of legislation granting similar powers to the Revenue Commissioners, the Department of Finance and the health boards. As an example, I merely referred to those powers that affect the area with which we are dealing. I will address the issues in more detail on Report Stage. I am not promising that I will accept the amendment at that time, but I will clearly set out our position on the issue.
In view of that assurance I will withdraw the amendment.
Will the Minister keep in mind Senator Dardis' point about the open-ended nature of the possibility? Perhaps it is the same with regard to the other Acts to which the Minister referred, but this will, theoretically at least, permit the Minister to nominate possible authorities in this respect. That is part of our concerns regarding what might happen in future.
Amendment, by leave, withdrawn.
I move amendment No. 2e:
In page 19, subsection 3, line 33, after "appointment" to insert "stamped with an official seal of the Authorising Authority, Agency and Minister".
This amendment is aimed at strengthening the provision relating to the person appointed as an authorised officer. It provides that a person's appointment should be stamped with the official seal of the authority, agency or Minister.
This amendment would require that a certificate of appointment furnished to an authorised officer for the purpose of section 14 of the Bill should be stamped with the official seal of the relevant local authority, agency or Minister. If the Senator withdraws the amendment I will consider the matter further and return to it on Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 3:
In page 20, subsection 6 (c), line 37, after "which" to insert "to his or her knowledge".
This is a technical amendment for the purpose of consistency with similar provisions in the Bill. The relevant provision as amended would state that:
(6) Any person who—
. . . .
(c) gives either to an authorised person, a relevant local authority or the Agency, information which to his or her knowledge is false or misleading in a material respect.
. . . .
shall be guilty of an offence.
Similar provisions are contained in section 18 (2) dealing with the provision of information.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 to 17, inclusive, agreed to.
SECTION 18.
I move amendment No. 3a:
In page 25, between lines 8 and 9, to insert a new subsection as follows:
"(7) The Agency or a local authority shall as soon as may be after the conviction of a person, publish a list of convicted persons in a newspaper circulated in the area, giving details and fines imposed."
The intention of this amendment is to allow for the publication of a list of persons convicted under the legislation in a newspaper circulated in the area involved. The Minister of State is aware that recent provisions were made to publish a list of revenue defaulters which has had a dramatic effect on the number of people who default. The purpose of the amendment is to ensure the publication of the names of those convicted under the legislation. This will deter others from continuing such activity.
This amendment would require that the agency or local authority publish details of persons convicted of offences under the Waste Management Act in a newspaper circulating in the relevant area. I am unhappy with the amendment at present because section 19 of the Bill requires that local authorities and the agency maintain a register, for the purposes of the Act, which will be open to public inspection. The Minister will prescribe the matters to be contained in these registers. In this context, it is intended to provide that details of all successful prosecutions initiated by the relevant body shall be specified in the registers. This information will, therefore, be available to members of the public.
The proposed amendment would impose an unnecessary and possibly costly obligation upon the bodies concerned. I ask the Senator to consider this argument as a reasonable one.
Will members of the press be entitled to examine the register?
Yes, it is a public document.
The relevant details could, therefore, be published by the press which would fulfil the aim of Senator Daly's amendment. I feel this would act as a deterrent.
If that is the case, we will be dependent on the press accurately and comprehensively to record the contents of the document. If a journalist is pursuing a vendetta against somebody — God forbid that should ever happen in any local authority area — the documentation could be used in a selective manner. If it is to be in the domain of public knowledge, there is a case to publish it in some consistent format where the same information is available to everyone rather than it being accessible to those with time and motive to pursue the way to which I referred. I accept that the Minister is unhappy with the amendment but there is much validity in Senator Daly's approach. If we are to try to impress on the Irish public the necessity for raising our game in terms of consciousness of the dangers and threats of waste, this is a very effective way of doing so.
Acceptance of the amendment would not prevent any journalist from, previously or subsequently, misrepresenting a situation. The register will be available, in a central area in a public place, to anyone interested in obtaining information. From my own experience of local authorities I am aware that they are enduring problems, due to lack of finance, in carrying out their duty to publish lists of planning applications. Some authorities had to terminate placing advertisements in the press to inform the public of applications they received the previous week. The amendment goes too far in imposing costs when the register will be available in a public and central location for inspection at any time.
I was inclined to agree with Senator Daly, but having listened to the Minister of State, I accept that it is probably more interesting to read a news story about a conviction. There are many local papers in competition with each other and a spicy article relating to a conviction might be more interesting than a list of names of those convicted, which might not be read at all. I go along with the Minister on this occasion. Senator Daly's objective is worthy but the Minister is probably more sensible in trying to achieve the objective set out.
I defer to the collective wisdom of my colleagues but I would still register support for Senator Daly, even if only in principle. Readers at local level would certainly take cognisance of any list of names of transgressors. This does not have to be presented in spicy form. The names of one's dearly revered parishioners could be the sexiest reading in the paper that week. Publishing lists of names in newspapers would involve a cost for local authorities but there is also a cost involved in people looking for access in terms of the time taken up by officials. On balance I would prefer Senator's Daly's amendment but I accept the other view is the prevalent one.
In my long experience as a Member of the Oireachtas nothing has focused public attention more on the issue of tax defaulters than the publication by the Revenue Commissioners of lists of such defaulters. These lists are eagerly looked forward to by many people. The purpose of the amendment is to create an awareness of the damage caused by pollution and to focus public attention on the fact that if people are convicted of this type of activity they will not get off lightly. This would certainly focus public attention on pollution. It was stated earlier that this issue has a great deal to do with perceptions, but the perception must exist that the Government means business with regard to pollution matters and that the names of people who are convicted of serious offences will appear in newspapers. I do not believe lists will be big and will require whole supplements of newspapers. In view of what the Minister has said, I reluctantly agree to withdraw the amendment.
The Minister cannot be sure that local authorities, who are often the main polluters, will put their names on their own lists if they are convicted.
If they do not do so, they will break the law.
They would never do that.
Amendment, by leave, withdrawn.
Section 18 agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
Could the Minister please explain subsection (5)?
Evidence of an entry in a register under this section may be given by production of a copy thereof certified pursuant to this section and it shall not be necessary to produce the register itself.
In the register there may well be a number of items. A person who wishes to see a reference in the register will have to look for a specific item even though there may be three or four further items, which will not be evident from what is proposed here. I would like to see this changed. When people seek valuations of properties from local authorities they are given precise certificates for the properties for which they seek valuations, whereas there may be ten other valuations. A register could contain a number of serious matters. Unless people seek information on specific matters, they would not be aware that there are other entries on the register without being able to see it.
This a standard provision. If there is a large detailed register, this would not have to be produced in full in court proceedings. Evidence of entries in the register would be sufficient. May records are now kept on computer and there would be a problem in bringing forward all lists in registers. The subsection provides that evidence should be produced which satisfies courts that entries are contained in registers. I think this provision is satisfactory.
There would be a certain amount of confusion. It appears there will be two registers, one kept by the agency and the other by the local authority. To determine an issue there may have to be a search of some kind before a person obtains the information they require. There may be other relevant information in the register in addition to the individual registration in question. Will there be two registers as I have outlined and, if so, what will be the relationship between them? If a full picture of something is required, which may involve four or five entries in a register, how can this be provided without the full register being seen?
I can see the sense of the subsection in that I do not think it should be required that the full register be produced. A section of it should be adequate as evidence; this is what the subsection has in mind. However, I share some of Senator Daly's reservations.
Subsection (7) (a) states that the agency may keep a register under this section otherwise than in legible form. I suppose this is to do with computer language so that the register is capable of being used to make a legible copy or reproduction. It may also have something to do with the type of illegible prescriptions Senator Henry and her colleagues give us at times and which need to be translated. I am not sure exactly what is involved in this subsection. The Minister referred to computer technology and perhaps the subsection is related to this.
The Bill provides for the imposition of a further obligation on local authorities. This was discussed already in both Houses. I do not object to this but to the fact that moneys must be found to exercise the obligation. Almost always the obligation to raise moneys for what is required under Bills falls locally. One of the many examples of this is the maintenance of courthouses. If central Government imposes obligations of a statutory nature, it has a responsibility to fund them.
Senator Dardis's insight into legislation is uncanny. He is right that this part of the Bill is because of doctors. A few years ago the Medical Council register could not be produced in court because it was on computer and the case was lost. Since then sections like this had to be inserted in Bills. Senator Dardis wins again.
I take Senator Dardis' point about more obligations being put on local authorities and about who pays the bill at the end of the day. There will be 35 registers. The full register will be in the possession of the agency and each local authority will have a register relating to its own jurisdiction. When local authorities are involved in court proceedings they will comply with the provision to produce evidence that there is an entry in their register.
Will there be a difference between the contents of the agency document and the individual local authority documents?
The agency document will contain the whole scope of its activities and the local authority document will relate to its area of responsibility.
Will the agency have a master copy with all the local authorities' material included in addition to its own independently initiated activities?
The agency will hold the records of the prosecutions taken by it but it will have the responsibility also to provide public information. Therefore, it will have to have the information contained on the other 34 registers in the interests of public information.
There could be a difference in the contents.
The agency would have the details of the proceedings pursued by itself and the contents of the 34 local authorities' registers.
Question put and agreed to.
Section 20 agreed to.
SECTION 21.
Government amendment No. 4:
In page 26, subsection (3), line 18, to delete "district" and substitute "district,".
This is a technical amendment to add a comma.
May we debate the comma?
Yes. Let us do something useful today.
If we get to a point where for syntax purposes we have to introduce a comma, we had better give serious consideration to the "in relation to" business.
Amendment agreed to.
Question proposed: "That section 21, as amended, stand part of the Bill."
I envisage huge delays building up on the question of who will be responsible for what. The Minister can delegate between the agency and the authorities, or the authorities can ask the Minister to have certain matters dealt with by the agency. Confusion may arise which will leave gaps in the legislation. A situation may arise where there will be disagreement between the agency and the authorities as to who is responsible for what and the Minister may be called upon to adjudicate on a regular basis. I am not certain of the purpose of section 21. It is a recipe for confusion, delays and possible gaps in the legislation.
The specific duties will be defined by law. This is simply an enabling provision intended to provide for flexibility in the assignment of functions if this appears desirable in the light of experience gained upon the implementation of the legislation. The scope for the transfer of functions to the agency is limited. Functions where the possibility of a transfer would be envisaged would be: responsibility for the issue of permits in respect of the commercial collection of hazardous waste and regulatory functions under section 39 (4) in respect of the recovery of hazardous waste or under section 51 in relation to the recovery of specified agricultural wastes.
Subsection (3) (1) could envisage transferring power under section 36 to make by-laws in relation to the presentation of waste plans to borough corporations and UDCs which operate waste collection services within their functional areas. Section 5 defines "functions" as including powers and duties.
This appears to be a lazy way to proceed and the Minister of State should be aware that it will create delays and confusion. I considered tabling an amendment to delete this section and have the Minister find another way to deal with the matter. This is a recipe for chaos. It would be more beneficial to have the responsibilities clearly defined.
We believe the section is adequate to deal with the situation.
The only transfer envisaged is a one way transfer — if the local authority cannot discharge the function the agency can discharge it more effectively. It does not seem to be contemplated that it might apply in reverse. It would have been nice to see the possibility allowed for that a local authority could do something better than a central authority.
Question put and agreed to.
SECTION 22.
An Leas-Chathaoirleach
Amendments Nos. 4a and 6 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 4a:
In page 27, between lines 5 and 6, to insert a new paragraph as follows:
"(c) failure by a local authority to make a plan as may be prescribed within the time set down shall be reported by the Minister to both Houses of the Oireachtas".
This amendment provides that in the event of a local authority failing to formulate a plan within the time set down by the Minister, the Minister would report it to the Houses of the Oireachtas. I am prepared to look at ways to improve the amendment. If the legislation is to be effective we have to put responsibility on the local authorities to make the plans and if an authority fails to make a plan we should be informed.
I tabled amendment No. 6 because I see no penalty in the Bill for local authorities if they failed to make plans within a prescribed time. Even under the 1979 regulations plans have not been submitted as they should. There may be great difficulties sometimes in getting local authorities to finalise plans. There should be a reason for the local authorities to feel they have to make the plans in a prescribed time.
Local authorities who fail to submit plans on time should publish the reasons in a newspaper which circulates in its area. I take the Minister of State's point about the expense of advertising in newspapers. A publication of the reasons in this case could take pages because the local authority may have many reasons for not having submitted its plan. Government Departments often publish advertisements which cost money and the advertisements I propose in this regard may be more useful than an example I saw recently of a lengthy advertisement for Supreme Court and High Court judges.
I seem to remember when we dealt with the Courts and Court Officers Bill, 1995, only barristers were eligible to apply for positions in the High Court and the Supreme Court. When I saw the advertisement and considered the number of people who are eligible to apply, I thought it was a great expense for the Department of Justice when the advertisement could have been handed out in the Law Library or posted to those not present there. It was an enormous expense for the Department of Justice unless the public was being given an invitation to apply for those posts. While I realise we must be frugal as regards publication of names in newspapers, it might not be as expensive as the advertisements for judges in the High Court and the Supreme Court.
I cannot accept these amendments. The proposals seek to impose on the Minister an inappropriate supervisory and reporting function in relation to the actions of individual local authorities. This is at variance with the approach now being adopted on the function of local authorities and their relationship with the Environmental Protection Agency. There is no precedent for such provision in relation to any obligation imposed on a local authority. We must accept that local authorities are being given the duty to produce waste management plans, which some are already doing. The expectation is that those plans will be produced within 12 or 18 months and that the obligation lies with the local authority. The Minister cannot take control of local authorities in this way. Under section 22 local authorities will be subject to a binding legal requirement to make waste management plans by such date as will be prescribed by the Minister. It is important to accept that local authorities have a role to play and that they have obligations which are written into this Bill. The thrust of this Bill is not that a Minister will supervise and keep control.
I agree with the Minister about local authorities. I refer her to section 7, which states that "The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed or for the purpose of enabling any provision of this Act to have full effect." That is some distance away from the aspiration expressed by the Minister.
The amendments are reasonable. I mentioned earlier the water quality management plan for the River Liffey in County Kildare. I tabled an amendment in January 1994, but the discussion was adjourned. We finally adopted it last Monday, two years later. Under section 22 a waste management plan must be reviewed "at least once in each period of 5 years after the date of making of the plan". However, those obligations do not appear to have been met during the preparation of the county development plans and other similar planning proposals. One of the papers laid before the House after Christmas dealt with the register of electors. County Kildare was given an extension of the time needed to prepare the electoral register. An intervention was made in that regard, although it was less important than this legislation. For that reason, I support the amendments.
I understand what the Minister has said. I have never been a member of a local authority so I would be slow to criticise them. However, the spirit of local authorities is often willing but the flesh is weak when it comes to action. Penalties are important.
I support the principle behind the amendment and I support the autonomy of local authorities in those areas where it is appropriate. However, the purpose of this legislation is to try to raise the national consciousness and to ensure that the provisions of this formidable legislation are implemented. To suggest that if a local authority chooses to opt out it will be allowed to do so seems to be contrary to the spirit of the legislation. Section 22 (2) states that "each local authority shall, not later than such date as may be prescribed . . . ". I presume it is prescribed by the Minister, therefore the Minister is already prescribing what local authorities should do under this legislation. To say that if local authorities do not do this we will insist they do, seems to be subversive of the spirit of this legislation. To state that a waste management plan shall be reviewed "at least once in each period of 5 years after the date of making of the plan", but then to state that if local authorities do not make a plan in the first place we have other things to do, seems to be a contradiction which is subversive of the spirit of this Bill.
The amendments do not go far enough. What happens once they are reported by the Minister to both Houses? Senator Henry mentioned circulating the list in the newspapers in the area. That is a step in the right direction. However, if the Minister does not have the power under this legislation, for which she has expressed high hopes, to insist that it be implemented, it makes a mockery of the principle behind the legislation. I support the amendments, but I would prefer if they had been stronger.
I support the amendment, although at the beginning I did not understand the need for it. We talked earlier about imposing a possible £10 million fine. It is easy to include something in legislation which someone else must pay. I share the same concerns expressed by Senator Lee. It seems that when we tell a local authority it has been naughty, we are mild about imposing a fine or authority. If the Minister seriously considers this amendment, she will recognise the need for something along these lines. If she is unable to accept it, perhaps she has an alternative option.
Perhaps I should explain the status quo at present. The Environmental Protection Agency has a supervisory role in relation to local authorities and it also has considerable powers. Section 63 (1) of the Environmental Protection Agency Act, 1992, states:
Where the Agency is of opinion that a local authority has failed to perform a statutory function of that authority in relation to environmental protection, or has performed that function in an unsatisfactory manner, the Agency may request a report within a specified period from the authority in relation to the matter and the local authority shall comply with the request.
It also states:
The Agency, having considered any report of the local authority may, with a view to ensuring the satisfactory performance of the function in question—
(a) issue such advice and recommendations to the local authority as it considers necessary, or
(b) provide, on such terms and conditions as may be agreed, such assistance or support as the Agency considers, in consultation with the local authority concerned, would be helpful.
That is the carrot, but there is also the stick. Section 63 (3) (a) states:
Where the Agency is of the opinion the response of the local authority to advice or recommendations issued or assistance or support offered under subsection (2) is inadequate for the purposes of environmental protection it may, without prejudice to any of its powers under this Act or any other enactment, direct the local authority to carry out, cause to be carried out, or arrange for, such action related to the function in question as the Agency considers necessary for the purposes of environmental protection within such period as may be specified.
(b) Where a local authority fails without reasonable cause to comply with a direction under paragraph (a) the Agency shall carry out, cause to be carried out, or arrange for, such action related to the function in question as it considers necessary to ensure compliance with the direction and the costs of such action may be recovered by the Agency from the local authority as a simple contract debt in any court of competent jurisdiction.
The Environmental Protection Agency has a supervisory function which is well defined in the Act and it would be most inefficient and ineffective to have a parallel system under which the Minister could also adopt a supervisory role. There will be a binding legal requirement as regards the time scale. The Environmental Protection Agency has a supervisory role anyway in relation to the whole area of environmental protection and its relationship with local authorities is already defined.
I accept the points which were made in relation to ensuring that local authorities live up to their obligations. We have to trust them but perhaps we should not trust them absolutely. There is a clearly defined procedure in relation to supervision which is reasonable — we do not want to overdo it. I ask for that to be recognised.
The difficulty with the Environmental Protection Agency's supervisory role is that this section has nothing to do with the agency. In fact, the agency is only mentioned once in the section in relation to the hazardous waste plan, which is a separate issue as we are discussing the waste management plan. This is a key section of the legislation.
One of the fundamental issues is that if a local authority, for whatever reason, does not produce a plan the whole Bill is negatived. We need to know that. I refrained from going further than proposing a basic, minimum requirement that the Minister would, at least, inform the Houses. If any or all of the local authorities decided not to produce a waste management plan, there is precious little we could do about it. There is no method by which we would know whether they had produced a plan.
The amendment which I tabled is the basic minimum which is required — I did not go as far as Senator Henry is prepared to go in requiring it to be published in the media, which would involve some expense. However, the expense of publishing notices every day in the newspapers would not be enormous. The argument put forward by the Minister of State is that the agency has a supervisory role in relation to the waste management plan. However, as far as I can see, it has no role under this section.
My point is essentially the same as that of Senator Daly. I accept what the Minister of State said about the functions of the Environmental Protection Agency, the obligations on local authorities and penalties. However, I do not see the connection between what is in the Environmental Protection Agency legislation and this particular aspect of this legislation — the Minister of State has not established that conjunction to my satisfaction. As far as I see it, they are two separate issues; the amendment should be accepted if they are two separate issues.
I support that proposition. On Second Stage, the Minister, Deputy Howlin, drew a clear distinction in regard to this section between the role of the Environmental Protection Agency in the area of national hazardous waste management and in the non-hazardous area. Perhaps I misinterpreted him. He stated that the Minister will have power to specify in detail the form and content of local authority plans, to require local authorities to coordinate their plans or to make joint plans. Section 22 (3) states that two or more local authorities may jointly make a plan. I was going to ask who decides whether they jointly make a plan, but the Minister is saying here that he will have the power to require them to make joint plans or to vary a local authority plan. The Minister clearly envisages a proactive role in that respect, if I am interpreting this correctly. The amendment is in the spirit of that direction.
I think the Minister missed the point. Under the proposed amendment, if a council has not complied with the rules and regulations as laid down by the Minister, that information would be laid before both Houses of the Oireachtas. A number of Senators are not members of local authorities.
I have seen many Bills going through the House with sections almost identical to the amendment proposed by Senator Daly. The Harbours Bill, which went through the House before Christmas, contains a provision that if the companies of the 12 or 13 harbours do not comply with the time prescribed, the Minister would lay it before both Houses of the Oireachtas. A number of Bills contain a section with almost identical wording to that of the amendment, that is, if something was not done the relevant Minister would lay it before both Houses of the Oireachtas. I do not see anything wrong with accepting the amendment as it was good enough for the Harbours Bill. The wording was not identical but it stated — I remember it clearly because I read every word of that Bill — that failure to comply would result in the Minister laying it before both Houses of the Oireachtas.
I do not see why the Minister of State cannot accept this amendment because its intent is to give information to Members of these Houses. Local authorities tend to drag these matters out. If they looked after their waste we would not have this Bill today and there would be no problem.
I appreciate the points which have been made. The Environmental Protection Agency has a supervisory role in this regard as waste management is part of environmental protection. I have already outlined its powers under the Environmental Protection Agency Act, which is already in place. We need to clarify that such powers include waste management. A specific point in relation to hazardous waste is included in this Bill. For Senator Lee's benefit, I wish to point out that, of course, the Minister has a proactive role in the sense of bringing forward the best legislation possible, but not the supervisory role envisaged in this amendment.
The example of the Harbours Bill was raised. I am not aware of an authority in that field which is equivalent to the Environmental Protection Agency. We have an established agency with specific powers and a specific relationship with local authorities. Its powers are extremely strong when it comes to ensuring local authorities live up to their requirements for environmental protection. The Act under which the agency operates includes this aspect of potential delay.
If the Senators wish, I will look at it again and return to it on Report Stage. However, I want to underline that we must get out of the old modes of thinking. Environmental protection is established now on a rather different basis to that of the past. It is not simply a pure relationship between the Minister and local authorities. There is a dedicated agency dealing with this area and we must ensure it has the powers which it has, and that it receives recognition for its supervisory role. If the amendment resolves a problem, I will bring it back but I ask Senators to consider what I have said. I am concerned that we may be duplicating rather than being efficient in introducing legislation.
I would like the Minister to take this back. She may think there is duplication but this is an important area. Plans are made, five years later it is time to revise them and one finds the plan was never brought into action.
I too urge the Minister to do this. I am happy to accept what she has said up to a point. The other Minister may have gone over the top in the language I quoted earlier but I will not hold that against him. I was concerned whether local authorities had the technical expertise at their disposal to do the ambitious planning intended here or if they might have legitimate reasons, in the context of their current expertise, for delaying. I would not necessarily call those legitimate reasons but there may be such reasons for not conforming rapidly, which is why one would like to see what date the Minister has in mind in the phrase "not later than such date as may be prescribed". What lead-in time does she intend to allow for local authorities?
I am glad the Minister is prepared to take this back because I wish to emphasise another aspect. We are always engaged here in an educational process for all of us, whether we are Members or the public outside. Publicity and an indication of the earnestness and seriousness with which the Oireachtas takes this legislation are therefore crucial. One way to ensure that is to require dereliction to be reported — not necessarily by the Minister, if the problem is that he or she is getting in between the agency and the local authorities. There should be the best possible opportunity for public knowledge of what is happening — or, in this case, what might not be happening — in order to stress to everyone the importance we all lay on this aspect of Irish life.
I accept it does need consideration. As regards funding, financial assistance of £1.5 million is available to local authorities in developing these plans. The local authority in my county has been effective in drawing in expertise to prepare an elaborate plan — not without political knots, tangles and confrontation but it is the role of local authorities to take difficult decisions. I take the point that information should be accessible. I will take the matter to the Department and bring it back on Report Stage. It may be possible to provide the information without the difficulty of duplication. May I also say this is an educational process for Ministers too.
I was anxious when the Minister said at the outset that the expectation was that all these things would happen. There is a joke about the difference between expectation and reality — I do not intend to tell it here but in this situation expectations are not good enough. We need the reality of what will be written into this section because it is one of the key provisions of the Bill. If subsection (5) says that before a plan is prepared, notice must be given in the media, I cannot understand why there is not a routine follow up. In other words, if it is announced in the media that the local authority intends to prepare a waste management plan, the least it could do is to announce when the plan has been prepared and that it is open for inspection. We have put many things back this afternoon and I am worried that if we keep postponing decisions we will minimise the impact of the legislation and people will fear we are not serious about it. I wish to press this amendment.
I think it would be a pity to press it. Two matters arise here — supervision and information. I am doing my best to ensure we have the best possible Bill and that requires a certain amount of consideration and it would be unfair of us to disregard the points made without that. It is reasonable to adopt my approach of looking at the points made here and bringing this back on Report Stage. That is the procedure and I hope the Senator will be co-operative in that regard. We may end up with a much better solution than any thought of so far.
I hesitate to intrude between the heavy hitters — I should not really say the heavyweights. We have had a good discussion and Senator Daly has introduced a series of carefully constructed and thought-out amendments. The Government response has been constructive also. I understand the Senator's impatience but we should take the Ministers at their word on their willingness to consider matters further. We should wait until Report Stage, when we can have votes at that point. I would vote for the amendment as it stands on Report Stage but I would prefer to give the Government the benefit of the doubt at present.
Is the amendment being pressed?
I do not wish to unduly delay the House. I will reserve my right to raise a similar amendment on Report Stage and in that light I will withdraw this amendment, but only on the basis that if the Minister does not introduce a similar amendment, we will.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 28, subsection (7), between lines 46 and 47, to insert the following new subparagraph:
"(i) the availability and unavailability of facilities for the reception of industrial waste;".
This amendment tries to be helpful. In planning decisions on bringing industry into areas, problems often arise about whether facilities exist for the waste from such industry. I put down this amendment because if the plan states there are or are not such facilities for industrial waste, it would save a great deal of time for the IDA, industries which wish to locate in the area and local people who might wish to entice industries. There would be no waste of time or protests about planning for industrial waste, as is happening in Senator Daly's area at present, if there had already been a waste management plan setting out whether facilities were or were not available for the disposal of industrial waste.
This amendment is unnecessary. Local authority waste management plans are already required, under section 22 (7) (e), to include information on—
facilities, plant and equipment which the local authority or authorities concerned expect to be available or, in its or their opinion, will be required to be available for the collection, recovery or disposal of waste in its or their functional area or areas. . .
In accordance with this provision local authorities will be required to identify available facilities for the recovery or disposal of all types of non-hazardous waste, whether of municipal, commercial, agricultural or industrial origin and to determine which other facilities may be required over the lifetime of the plan. Local authorities will also be required to have regard to the provisions of the plan prepared by the agency under section 26 in relation to hazardous waste.
The full spectrum of waste is already included and this amendment would be an example of duplication. Therefore, I ask the Senator to recognise there is already a requirement in that section that covers her concern.
I would not want any duplication.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 6 has already been discussed with amendment No. 4a.
Amendment No. 6 not moved.
Question proposed: "That section 22 stand part of the Bill."
My question relates to the circumstances which pertain in County Kildare where there is a proposal to have Dublin refuse repose in a dump in Kill. That matter is currently the subject of a High Court action upon which we are awaiting a result.
I assume it would fall to Kildare County Council to prepare a waste management plan in respect of the dump in Kill although it might be operated by Dublin County Council or Dublin Corporation. There are provisions in the Bill that allow local authorities to produce joint efforts but in the instance of one local authority operating a dump in another's jurisdiction, which would be its effect, who would prepare the waste plan or consider the facilities? While I realise it is a specific question and it may be a little invidious of me to raise it with the Minister under this section, nevertheless it is relevant.
While my green heart agrees totally with all the aspirations of this Bill, I hope section 22 (6) (a) to (d) will be considered in order of priority and that we will not say we will just fine the polluter. The real emphasis and effort of the Bill will be on section 22 (6) (a). Are all the paragraphs of this subsection of equal importance or will we first put our energy into section 22 (6) (a) and so on?
One aspect of section 22 (6) (c) that worries me — and it also comes up in the Third Schedule — is incineration. Some people would say that incineration causes pollution. I hope the individual paragraphs in section 22 will be taken in order of priority.
I agree with Senator Henry and hope the paragraphs in section 22 (6) will be prioritised. Can the Minister indicate how effective section 22 (6) will be without specific targets? Fingal County Council produced a waste management plan almost two years ago and, while it reads well, there are no real specific targets for waste reduction, recycling and reuse. The spirit of this legislation, and specifically section 22 (6), could be lost unless the Minister defines targets. Local authority managers will argue strenuously that the targets we suggest are unobtainable. Unless the Minister defines these targets, the local authorities will not make any significant attempt to reduce the amount of waste produced.
As regards the plan, Kildare County Council would be responsible for the provision of facilities within its boundaries. Section 22 (7) (d) reads:
the type and quantity of waste which the local authority or authorities concerned expect to be transported into, or out of, its or their functional area or areas for recovery or disposal during the relevant period;
There is an input there and it is one example where joint co-operation would be desirable.
It might be difficult to achieve.
I am sure they will co-operate with us.
There are difficulties with waste management and I do not underestimate them.
On the point of setting priorities and targets, while the top of the list would be of prime importance, each aspect is part of the overall strategy. The Government has made it clear that its concern is to reach certain recycling targets, look at reducing waste and ensure the minimum amount of waste ends up in landfill sites. However, most of the arguments are not about recycling but landfill sites. We must ensure that each element of the waste management plan is given the importance it requires. There is always the danger of putting the difficult questions aside and deal only with those that are attractive.
I accept the question of target setting to a point but it is the job of the local authority to take up that function. They have demanded extra powers and greater control over their geographic areas for many years. In my view, a local authority is the best authority to judge achievable targets. It is one thing to set targets for Fingal County Council but it is another to set for Laois/Offaly which has a largely rural based population and where recycling is not as easy to organise. Setting a blanket target across the country would not be appropriate and local authorities are in the best possible position to know the level it can strive to achieve within the larger framework of the national recycling strategy. Knowing where we can set that target is difficult but it is the function of a local authority to understand and know how far it can go. There is a major difference in dealing with a rural population and a highly urbanised one as regards recycling and that has to be recognised. The role of a local authority is fundamental in that regard.
I do not know whether this is being helpful to the Minister or to Senator Henry but on the whole this is not just an important Bill; it is actually a good Bill. There is an internal logic in the particular sequence which Senator Henry listed. I recollect Minister Howlin stressing, although I cannot remember in which rhetorical manifestation, that there was a logical sequence to these four steps on the ladder. To be fair to the Minister, that should be stated.
I have become so enthusiastic about this that I think I will put down an amendment on Report Stage to insert the words "in this order of priority".
I accept what the Minister says up to a point. But my own experience in Dublin, where the bulk of the waste problem exists, is that local authority management have had to be dragged screaming to even confront the issue of recycling. We have had debate after debate about the levels of recycling which could be achieved. At one stage the Kerbside scheme, which is popular and works well in Dublin, was about to be dropped because it is an expensive way to deal with waste. However, the reality today is that dealing with waste is expensive. Local authority management told members it was expensive because there were no markets for the paper and cans at one stage, that it is that kind of market. You can either succeed in having the waste dealt with by some of these firms which want paper, or they decide they do not want it. At one point the Kerbside operation was collecting segregated waste but there was no market for it and it was then brought in trucks to the landfill dumps.
This is the reality. That is why I say this is a good Bill and I want the House to strengthen its provisions. It is not that I do not believe that the Minister's intentions and those of the Members are good, but it is specifically because I want to see an end to the continuing battles about landfill sites. Mulhuddart, which is my electoral ward, was the focus of the recent An Bord Pleanála decision not to allow a dump to be sited there. That was a battle royal, just like the situation in Kill, County Kildare. We must force local authorities to achieve objectives and re-educate people even in rural areas — and I am not really sure why it is so fundamentally different in rural as opposed to urban areas except that in urban areas there is a mass of houses to be dealt with — that cardboard, bottles, cans, etc. must be transported to the nearest recycling bank.
From my experience, I think the legislation is good, but I know what will happen at management level. There are no specified targets so they will tinker around with it and do what they feel compelled to do, but they will not take on board the thrust of the Bill. The Bill does not set targets and, as with any Bill, unless targets are set, management will say, for example, that they have a recycling scheme for 20,000 houses and there is a place at the dump for oil, etc. The Minister must force local authorities to comply in order to achieve the objectives of this Bill, and I say that as a member of a local authority.
Have local authorities already gone ahead with waste management plans which pre-empt this Bill? If they have, it is wrong. I will speak about this on another section of the Bill which affects Kerry County Council, where I believe it is not adhering to the provisions of the Bill. That local authority is proceeding under different rules and regulations with regard to transfer stations and I am amazed.
We will probably move towards setting targets. With regard to the national recycling strategy, we have already set a target of 20 per cent of commercial and domestic waste, with which I am sure Members are familiar. I am concerned that realistic targets are set and that they match the reality on the ground. This Bill is helpful to local authority members who are facing the reality of recycling, recovery and landfill disposal sites. Senator McGennis hoped there would be no more battles. The question of providing landfill sites is a difficult political issue and no Bill in the world will address that political reality.
It will always be the case.
We must ensure that many people's concerns and anxieties are addressed but I suppose that is a separate issue again.
With regard to prioritisation, Senator Lee made the point about there being a kind of logic in that it is a sequence of steps. I want to bring to Senators' attention that in the section on waste prevention, that is section 28 (2) (a), the Bill stipulates "A person who carries on any activity of an agricultural, commercial or industrial nature (including the manufacture of any product) shall have due regard to the need to prevent or minimise the production of waste from that activity and, as the case may be, from any product manufactured by him or her as a result . . .". So the message is reinforced in the Bill in relation to prevention. As I say, all the elements must be included, because it is clear that the issue of landfill sites is a difficult one and one which must be taken on board by waste management plans.
Senator Fitzgerald asked about the preparation of plans. Local authorities have started to draw up plans in some cases. Obviously, this Bill will apply to them as it applies to anybody else, but I feel we should not be knocking local authorities for having taken the initiative because the difficulty is more likely to be with local authorities which have not looked closely at the need for waste management. If the initiative has been taken to start the process, it should be commended because it is one of the major local issues which must be addressed. The European Community's waste regulations of 1979 require each local authority to prepare a waste plan indicating the type and quantity of waste for disposal, the general technical requirements, suitable disposal sites and any special arrangements for particular wastes. That probably puts the matter in context.
I do not disagree with the Minister. I am mindful of the environment and would be totally in favour of the Bill. If some county councils have gone ahead with their own rules or rules which have existed to date and the Minister and the agency have not been notified, this Bill will involve separate rules by which they should be governed. This is where my difficulty lies. The procedures for lodging an objection under this Bill, which is a good one and I commend it, are totally different to those in the old legislation.
I do not want to make a big issue of it, but Kerry County Council plans a waste transfer dump for a site which is 50 yards from my house and against the wall of a hospital in Dingle, County Kerry. The county council will place a notice in the newspaper for four consecutive weeks, then there will be four weeks in which to object, it will go before Kerry County Council which will vote on the matter and that will be the end of it. They are doing all of this in spite of the fact that a private individual received planning permission from Kerry County Council over a month ago for the same development on a site two miles outside Dingle which is miles away from houses.
We discussed money with Deputy Allen. There seems to be enough money for this rigmarole and advertising, but the county manager and the man in charge of refuse told me there is room for only one transfer station in Dingle. I cannot understand why they are going ahead so fast. In view of what this legislation will do, they should hold their fire because there is no great hurry.
Local authorities have already made plans, as required by law. This Bill expands and strengthens the functions of local authorities in relation to planning and requires the making of new update plans. As a result of this Bill, we will ultimately have waste management plans which are far more comprehensive and deal with the issues.
Question put and agreed to.
SECTION 23.
Acting Chairman
Amendments Nos. 6a and 7a are related and may be discussed together.
I move amendment No. 6a:
In page 30, between lines 44 and 45, to insert the following new subsections:
"(5) Any person may within a period of 21 days make an objection to the Minister in relation to a plan.
(6) Any objection shall—
(i) be made in writing,
(ii) state the name and address of the objector,
(iii) state the subject matter of the objection,
(iv) state the full grounds of objection and the reasons, considerations and arguments on which they are based.
(7) Any objection shall be accompanied by such documents, particulars and any other information relating to the objection as the objector considers necessary or appropriate.
(8) A person making an objection may request an oral hearing of the objection.
(9) Where a request is made for an oral hearing of an objection the Minister shall have an absolute discretion to hold an oral hearing and the Minister shall give notice in writing of that decision to the applicant and the authority or authorities concerned.
(10) The Minister having considered any such objection or oral hearing may require a local authority or, as the case may be, two or more local authorities to very (whether by addition or deletion) a Waste Management Plan made by it or them in such a manner as the Minister may specify or to replace the plan by a new Waste Management Plan.".
This legislation places some heavy and onerous responsibilities and obligations on local authorities, businesses and individuals. In a situation like this it is only correct and proper that we give people who may be aggrieved by a plan an opportunity to raise their fears, objections or concerns after they have raised them with the authority and the Minister. This amendment provides that opportunity.
Section 23 provides that a local authority shall give people an opportunity to make observations or comments on a proposed or varied plan within a specified time limit. However, if those who make the objections are dissatisfied with the outcome of the representation, they do not get a further opportunity to have the matter discussed by a superior authority.
I am proposing the addition of some new subsections to provide that a person who has a problem with a plan as announced and who is not satisfied with the outcome of their discussion with the local authority can supply their documentation and objections to the Minister. I have set out how that would be done. It would be in writing, include the name and address of the objector and state the subject matter of the objection. It would also state the full grounds of the objection and the reasons they are putting it forward. This would be submitted to the Minister within a specified time and the Minister would have the authority to consider the objections. The Minister could also direct that there be an oral hearing of the matter. After he has had the opportunity to consider the representation and the oral hearing he would then be in a position to direct the local authority to make further alterations or to draft a new plan.
I am endeavouring to further strengthen the rights of the individuals who would be to some extent affected, some seriously and others not so seriously. At least they would have an opportunity to voice their concerns directly to the Minister, who could take account of the legitimate concerns expressed.
I support the amendment for reasons I have already outlined. There should be some procedure, such as that provided in the amendment, whereby a person, persons or group could make their views known to the Minister directly, after the council has made its decision. There is nothing in the Bill which gives that power to a person. A decision will be made by the local authority on a waste management plan and that seems to be the end of it. One can make objections to the council, but it ends there. It should go further, because over the years councils have been the worst offenders in terms of planning buildings. There should be a higher authority with the power to overrule the council, and individuals or groups should have the opportunity to make their objections known at a higher level.
I also support the amendment. It attempts to make local democracy more meaningful, which was the stated wish of all Members of this House and the relevant Minister during the debate on the Local Government (Dublin) Bill which introduced limited local government reform. There is a belief among the public that local government is very remote, even though it is the form of democracy closest to people.
Reading the explanatory memorandum on the section reminded me of a well known business person and developer in Dublin who is reputed to have said "We will hold the public inquiry and then we will build the road." It suggests that we will go through the procedures but it does not matter what the public has to say about the waste management plan. It will proceed as though there had never been any objections received.
Senator Daly's amendment is very worthwhile. It is almost a copy of the planning procedure whereby interested parties have a right to make their views known to the local authority. The decision of the local authority can be appealed to An Bord Pleanála. There is a mistrust in the community and that is a shame. However, particularly in the area of waste management, there is a feeling that the local authority will proceed regardless of local feeling.
I may be repeating something that has already been discussed. Is the making of the waste management plan an executive or reserved function?
It is reserved.
If it were to be an executive function, it would copperfasten the need for this section. I support this worthwhile amendment.
On that latter point, the reserve aspect is dealt with in section 22 (10), which states:
The making, review, variation or replacement of a waste management plan shall be a reserved function.
I support the amendment. It does no more than bring this legislation in line with general planning law and general planning practice. When drawing up a county development plan, there is a procedure whereby people can make objections. One has a public hearing on a motorway scheme. This is just as environmentally important as the construction of a motorway. The single biggest effect this would have would be to allay public fear that all these decisions are being made in an abstract vacuum and that people do not have a direct input.
The section says that written representations in relation to the proposed plan may be made within a period and will be taken into consideration. They may well be taken into consideration and then rejected, and because of that there must be some appeals procedure such as the reasonable one outlined in the amendment.
I support the idea of an oral hearing, such as that outlined in a county development plan, where people can make an oral presentation. This is required from the point of view of consistency and to make sure the public is assured that these decisions are not being imposed on them. The general perception is that such decisions are being made in a vacuum without any public input.
The Minister said that decisions on locating landfill sites are emotive and people frequently feel that such decisions are made without any reference to their needs or their legitimate concerns. There is an obligation to listen to what appropriate organisations have to say. When we debated the National Heritage Council Bill we tried to include people in the protection of the environment, and from that point of view this amendment makes sense.
There is a great deal of public unease about this matter. In terms of reassuring public consciousness that justice is being done and being seen to be done, it is desirable that procedures should be incorporated to reinforce a feeling of confidence in everything underlying this legislation.
The amendment refers to a person making "an objection to the Minister in relation to a plan", but is this the whole plan or just a section of it? What does Senator Daly mean by that? I will paint a scenario for him. When the local authority draws up the plan, individual A decides he does not like it, objects to it, and the plan is revised. However, another individual then has the right to lodge an objection to the revised plan so the plan might never be implemented because a series of individuals play hopscotch with it.
There may be conflicting views also. For example, in my county council area a plan to put a dump in Slieve Phelim has been objected to by many people. If the county manager put that into a waste management plan——
He would be shot.
——he would have the support of people in the west of the county who, at the moment, take the bulk of the county's refuse. Therefore, people west of the River Maigue will support it. A number of locations could be suggested in the plans for the siting of a major dump and the local people would object to it wherever it was proposed to locate it.
Does Senator Daly see any time limit applying to objections in such a case or would everybody have the right to object to the plan or the amended plan?
In relation to Senator Kelly's point, I expect a lot of representations will be made in connection with the plan. In the first place, representations will be made to the local authority, and this is provided for. What is not provided for is a situation where no account is taken of the representations, and people feel aggrieved. There may be 30 or 40 applications and that is why I put in a time limit. It will be done within a few weeks but we can shorten that to ten days if necessary to make it more effective and efficient.
If the representation does not get results there will still be an opportunity to speak to the Minister about it by way of an oral hearing. We have oral hearings every day of the week on social welfare claims, but there would be nothing like that number of claims in this area.
The section appears to provide an opportunity for people to make representations to a local authority when the plan is being prepared. Nevertheless it does not give them any satisfaction if, for instance, a local authority simply takes note of their views. They would then have no further recourse to an appeals process.
That is not the case in other sections of the Bill where an elaborate mechanism is built in to deal with situations where people are dissatisfied. Senators will have noticed the similarity between what I am proposing and what appears later in the Bill's provision for management licences. It is taken from the Minister's Bill so I cannot see why he would have any objection. I will be proposing a similar amendment in relation to the hazardous waste plan.
There are a few simple issues in this Bill which include the preparation of local authority plans and the preparation of a national plan. However, it falls down because there is no provision in the Bill for people with legitimate grievances that are documented and supported nor is there any such facility to assure people their views are being taken into account in the preparation of the legislation.
This is a reasonable amendment, although I am sure it could be tightened up. There is a similar provision in section 10 already and there could be a combination of that and what the Minister has already proposed. I will press this amendment which is fundamental to the choice of people in a local authority area to appeal to the Minister and their right to be heard. The final decision will rest with the Minister who has the final decision in the Bill anyway.
I am sympathetic to what Senator Daly has said. However, at the end of his amendment it states that the Minister may specify that the plan must be changed or may "replace the plan by a new waste management plan". Would an objector then be in a position, as Senator Kelly mentioned, to object to that plan within 21 days? If the Minister said that yet another plan must be produced, could Senator Daly's amendment allow someone else to object to that plan within a further 21 days?
An important point must be made in relation to this amendment. We have to be serious about local democracy. If we draw up a framework that ultimately means decisions will be made by the Minister, we are failing local democracy. That is what this amendment proposes, so Senators should consider it seriously.
The question of whether this is a reserved function gets to the core of the matter. It is a reserved function and we have to be serious about giving power to local public representatives. We must not pay lip service to the idea but say that this is a function that local public representatives have and are being entrusted with. Obviously, if local public representatives fail to meet their obligations there has to be a fall back position which, as Senator Henry indicated, is in the Bill.
By accepting this amendment we are in effect saying that we do not trust local public representatives and that people may object directly to the Minister. There is a genuine concern among all political parties about the lack of local democracy. We must ensure that when legislation is introduced the principle of subsidiarity is at its core. If subsidiary does not mean anything, we do not need to elaborate on this.
I am concerned about an amendment which rolls back legislation. A parallel was made with the planning process. We have moved away from this solution in planning legislation because people were not satisfied with a Minister having such authority and An Bord Pleanála was established. We require an established principle that local democracy determines issues as far as is practicable. There is always a safeguard if local democracy does not function and people do not take decisions.
I am concerned that this amendment puts in place a structure which takes away from the status of local public representatives and their right to make decisions. This will undermine local democracy rather than protect, it as the Senator said. I ask that Members see the amendment in this light. We are framing legislation in the context of a commitment to local democracy and subsidiarity. We are moving away from centralisation, where people do not have a say at local level. We must look at this in that context. There is a safeguard in the Bill and it would be detrimental to take local democracy out of it.
I do not disagree with what the Minister said about local democracy. However, I do not see an inconsistency between keeping a reserve function and allowing local democracy and a system of appeal. I am prepared to concede that if one looks at the totality of the amendment, particularly the last part, there is a tendency towards centralisation. The principle is still correct and there should be a system to consider an appeal and to hold an oral hearing. As I said, this exists in the case of the county development plans, and members of county councils have heard people make oral presentations.
I agree with the Minister in that I have heard many county councillors talk about the need to devolve more powers. However, when Kildare County Council was confronted with a decision about hackney and taxi licences nobody wanted to take that difficult decision. I am at one with the Minister in that if we want more powers, we must be prepared to make difficult as well as easy decisions. I do not see an inconsistency between wanting to do something locally, subsidiarity and an appeals system.
Kerry County Council wants to build a recycling plant in Dingle and it will make the decision to do so. A private individual wants to do the same thing two miles away in a far better location. However, he must go through the planning process. Although he has already received planning permission for his development, people have the opportunity to appeal that decision to An Bord Pleanála. The Minister is saying that people have the right to object to the private individual, but that they do not have the right to object to what Kerry County Council wants to build in a built up area against a hospital wall and 20 feet from houses that do bed and breakfast.
I do not have the right to lodge an objection with An Bord Pleanála about Kerry County Council's proposal. Although the private individual has received planning permission from Kerry County Council, he must wait three to six months. Is that democracy? That is why I support this amendment. We must remember that private companies collect more waste than the councils and they must abide the strict rules. People have the right to object to such developments, but they cannot object to a local authority development under this Bill.
Once An Bord Pleanála rules on something, that is the end of the matter. Therefore, what Senator Kelly said was somewhat nonsensical. This Bill must take account of the rights of people to object to council proposals. The structure in Dingle is almost 100 feet high, but I can only write to the county manager and to the council to object. I visited three private sites which were kept extremely clean, although there was a problem with vermin. However, I have no rights under this legislation.
I agree with the Minister. The reason I asked about this being a reserved function is that it strengthens local democracy. There is a further problem, and Senator Dardis may agree with me on this. We adopted a waste management plan about which people in Kildare were not overly happy. We had to go through the planning process to get permission for the dump in Kill. If we want to provide a landfill site within an administrative area, then local authority members must make a decision. All local authority members want more functions except in relation to halting sites and landfill tips with which they do not want to deal.
Or hackneys.
Our manager decided to give that function to the corporation, although the members have decided to take it on themselves. They will probably be sorry afterwards.
In the case of Kill, the local authority applied to the planning authority in County Kildare and people had the right to object and to appeal to An Bord Pleanála. However, unless one has a lot of money, one has no influence, regardless of subsidiarity or the devolvement of powers. I have seen this in my constituency. In Mulhuddart business people came up with the money to fight that case. Even before An Bord Pleanála, one is very much at a disadvantage unless one has qualified planning consultants, barristers and so forth.
Where the local authority's waste management plan extends into another local authority area the concepts of local democracy, reserved function and subsidiarity do not work. It can be honestly said that it suited the four Dublin local authorities to dump their rubbish in Kildare. They took no account of the feelings of the people in Kildare. Unless there is a system whereby people who want to object to that type of decision by a local authority can do so without spending huge amounts of money, there is no local democracy and local accountability. As things stand, it would be worthwhile having a look at how An Bord Pleanála works. My own experience is that where there are big corporations and small communities the small communities will not win unless they have plenty of money.
I am not a member of a local authority but I thought that since the débacle over the interpretative centres there had been a huge extension in the number of developments that required planning permission. Are planning permissions not required by local authorities for any of these facilities?
Not if they apply to themselves.
There is a consultation process.
I understand the point made by the Minister of State. However, it is hard to discuss section 23 without taking account of section 24. The Minister has the power under section 24 to direct the county council to scrap its plan and produce a new one. I am endeavouring to cater for the local community or local people who have grievances and objections. The Minister is paying lip service to them in this section. The Minister has included a provision which appears to give them some input into the procedure. However, no account need ever be taken of their input. If no account is taken of their input under section 23, they have nowhere else to go. The Minister still has somewhere to go because he or she can direct the county council to vary the plan, produce a different plan or produce a new one. What I am proposing refers to the powers the Minister has in section 24. That could probably have been deleted had the Minister of State accepted the other amendment.
I urge the Minister of State to look carefully at what is proposed. It is a mechanism whereby the local community would have an opportunity to make its input between the local authority and the Minister. One certainly would not wish to see an ongoing appeal procedure; this would be a once off procedure whereby within 21 days of the plan being published the local community would have an opportunity to state its case within a specified time. The Minister, if required to do so, has the absolute right to decide whether to have an oral hearing and objectors would have the opportunity at such a hearing to put their points of view. At the end of the day, the power which is already in section 24 would come into play.
It might be useful to define the differences that exist between the Planning Act and what is proposed here. If one applies for planning permission one does so to the local authority. It is not a reserved function whether the planning permission will be granted. People have the right to appeal to An Bord Pleanála, which is a change from past procedures where the Minister was involved. That power was taken away and vested in An Bord Pleanála. When a local authority draws up a development plan it is a reserved function and, in the same way as this plan is a reserved function which has a certain safeguard at the back of it, the development plan procedure has a similar safeguard in relation to the Minister intervening if necessary.
The powers of the Minister are clear. Senator McGennis made a good point that people with wealth are able to have a great deal of influence at oral hearings. That is not to say that wealth is necessarily the factor that determines decisions. However, it is an advantage if one can afford to have senior counsel, planning experts, architects and so forth. It enables some people to use the oral hearing to great advantage. It is not in itself a perfect system.
We are talking about a waste management plan. The nearest equivalent in the planning area is the development plan. Local representatives come together representing the best interests of their community to determine policy. If we include an amendment which obliges them to run to the Minister, it will be the Minister who will determine policy. That is not desirable. It does not reflect the genuine wishes of the political parties and independent Members of the Oireachtas.
Senator Henry asked about what happened subsequent to Luggala. I was involved in that matter and there was concern, because until that decision was made there was no procedure with regard to developments carried out by local authorities or State bodies. The public consultation procedure is now in place. With regard to the waste management plan, there is a consultation procedure in place. It was improved when it was debated on Committee Stage in the Dáil. The consultation procedure is knitted into the entire process. If, for example, a decision about a landfill site is made democratically and as a result of consulting with and including people in the formulation of the plan, there is still the EIS procedure to go through. People are also familiar with that procedure. There are safeguards in place.
At the end of the day, if people go badly astray and if local representatives do not do what they are obliged to do, the Minister can require two or more local authorities to jointly draw up a waste management plan. The Minister has that authority if there is a difficulty between two counties. The Minister can:
require the making of waste management plans, whether under subsection (2) or (3) of section 22, by two or more local authorities be co-ordinated in such manner and in relation to such matters as the Minister may specify, and
(c) require a local authority or, as the case may be, two or more local authorities, to vary (whether by addition or by deletion) a waste management plan made by it or them in such manner as the Minister may specify or to replace the plan by a new waste management plan,
That surely is enough of a role for a Minister if we are serious about ensuring that planning and policy are based on the principle of subsidiarity.
I accept the Senators' good intentions and I do not wish to cut across them. However, if we provide that the procedure is simply a step for the council in order to get to the Minister and hold an oral hearing, it is dishonouring the whole purpose of local democracy. Under this Bill the public is to be consulted before the plan is drawn up. That is important. At the end of that part of the process it is the elected public representatives who determine the plan.
Amendment put.
The Committee divided: Tá, 19; Níl, 25.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Daly, Brendan.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Henry, Mary.
- Kiely, Dan.
- Kiely, Rory.
- Lee, Joe.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Mooney, Paschal.
- Mullooly, Brian.
- Norris, David.
- Ormonde, Ann.
- Wright, G.V.
Níl
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Hayes, Brian.
- Kelly, Mary.
- McAughtry, Sam.
- Magner, Pat.
- Maloney, Seán.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Manning, Maurice.
- Neville, Daniel.
- O'Sullivan, Jan.
- Reynolds, Gerry.
- Ross, Shane P.N.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
Tellers: Tá, Senators Fitzgerald and Ormonde; Níl, Senators Cosgrave and Magner.
Amendment declared lost.
Progress reported; Committee to sit again.