Wildlife (Amendment) Bill, 1999: Committee Stage (Resumed).

SECTION 16.
Amendment No. 6 not moved.

I move amendment No. 7:

In page 18, subsection (5), line 42, after "and" to insert "such information shall also be published by electronic means and".

I will not press the amendment in the hope that the Minister will have time to consider it for Report Stage.

Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."

Section 17 specifies that every affected person be notified of a proposed NHA designation. How far has the designation of such sites progressed? Does the Minister consider half of the potential sites are identified and designated? What percentage of them are not designated? I take it a summary investigation has been carried out of all the possible sites throughout the country. People, especially in the area from where I come, are confused as to why certain sites have been designated as NHAs and SACs while others, which appear to be equally important, have not been designated.

I support what Senator Connor said. It would be helpful if a map of such sites was placed in each local authority, as many people are confused about how sites are designated.

As of yet, there has not been any formal designation of NHAs. Where possible we would be happy to provide at local level the information, including maps, sought by Senator Burke.

NHA sites and SAC sites are well identified in the area in which I live. They are coterminous in that many NHAs are also SACs. I am often asked if there are many other areas in respect of which preliminary investigations show a possibility of designation as NHAs. Many counties in the west, including Roscommon where I live and counties Longford and Mayo, typically have relatively small sites of 200 acres or 500 acres or larger sites of 1,000 acres of untouched raised bog. People are surprised that some of those sites have not been designated, especially when they consider the sites that have been identified for designation. I understand the Government is under pressure from the EU to designate a much greater area of sites, especially as SACs. I ask the Minister to comment on that.

I will do my best to address those issues. The Senator interweaved the SACs and the NHAs. We are referring particularly to NHAs, not SACs.

I agree.

The proposed designations of SACs have been sent to the European Commission and the full number of sites will be submitted by the end of the month. With regard to NHAs, some preliminary work has been done on that, but there has not been any formal designation of such sites. The identification of sites as SACs is carried out on a scientific basis.

The Senator is correct in saying a number of NGOs and individuals would like a far greater number of sites designated than are currently designated, but that is a debate for another day. We are talking about two specific issues, SACs and NHAs. With regard to the preliminary work that has been done on NHAs, we will do our best to furnish the Senator with any information we have on that, particularly regarding his local area. We would welcome further discussions with him on those.

Question put and agreed to.
SECTION 18.

I move amendment No. 8:

In page 19, subsection (1), line 30, after "measures" to insert "including management plans".

The concept of this amendment is to include management plans in order to avoid provisions that may be too general. Rather than having vague guidelines, the inclusion of more detailed plans would be much more likely to protect the environment in the manner sought. That is the reason Senator Costello tabled this amendment.

It would not be proper to refer specifically to management plans in this section. An NHA order may include whatever provisions are required to provide for the conservation of the site, including stipulations concerning the management of the site. In addition to management plans, there are various other types of plans or protective measures that could well be relevant to the conservation of an NHA. Examples of these could include the habitats conservation guidelines, commonage framework plans, individual farm plans and aquaculture zoning plans. It would not be appropriate or necessary to detail all of those in primary legislation.

One danger of detailing such a list is that the validity of employing a measure not included on the list could be called into question. Additionally, it is possible that further types of conservation measures, which are not currently in existence, could be devised at a future date. Therefore, I cannot agree to include a reference to management plans, as sought by the Senators, as to do so is not only unnecessary but ultimately it could weaken the protection afforded to NHAs by limiting the range of conservation measures the Minister could employ to ensure the conversation of NHAs.

I thank the Minister for her explanation. I will relay that to Senator Costello who may wish to raise this matter on Report Stage.

Amendment, by leave, withdrawn.
Amendment 9 not moved.
Section 18 agreed to.
SECTION 19.

Amendment No. 11 is an alternative to amendment No. 10 and they may be taken together by agreement.

I move amendment No. 10:

In page 20, subsection (1), line 2, after "land" to insert "or where the Minister has issued a notice in accordance withsection 16, and where a decision under section 17 or 18 has not yet been made”.

I ask the Minister to reply to this amendment.

Section 19 is pivotal in relation to the protection that can be afforded to NHAs. It provides for the imposition of restrictions on the carrying out of works which are likely to destroy or significantly damage an NHA. Such works may not be carried out without first obtaining the consent of the Minister for Arts, Heritage, Gaeltacht and the Islands. Where consent to works is refused, the affected person may object within 30 days and has the right to have the case heard by an independent arbitrator whose decision shall be binding. These amendments concern the issue of protection for notified as opposed to designated NHAs. In effect, it proposes to afford the full protection of the Wildlife Acts to notified NHAs.

The issue of the potential damage that may be caused to NHAs during the notification stage has been raised during Committee and Report Stages of this Bill in the Dáil and it has also been raised by a number of NGOs. I recognise that the interim period between notification and designation is a potentially dangerous one. While the vast majority of farmers and other landowners would not set out to cause damage, I am conscious that proposed NHAs could be open to damage by unscrupulous individuals during the notification stage.

In recognition of these concerns, I have devised a package of amendments to the Bill aimed at ensuring the damage to notified NHAs can be prevented. These improvements, which I introduced on Committee Stage of the Bill in the Dáil, will secure my overall objective, which is to have a system for NHAs that guarantees their permanent protection in a fair and balanced manner while eliminating the need for compulsory purchase. Specifically, in section 19(2) I have introduced an amendment which requires that a person shall not carry out any potentially damaging works in a notified NHA without first giving three months' notice to the Minister. Proceeding with works without such notification would constitute an offence. In most cases it would be possible to make a final decision on the designation of an NHA within the three month period. These provisions could be considered together with section 20 of the Bill, which enables me to apply to the courts to seek the prohibition of such works.

I have also introduced an amendment strengthening section 21 of the Bill to enable me to order the restoration of a site damaged during the notification period once the site is designated an NHA. I am advised that it would not be proper to invoke such a power prior to designation. In addition, I introduced an amendment to section 24 to place a requirement on other Departments and certain public bodies, including planning authorities, to consult with the Minister for Arts, Heritage, Gaeltacht and the Islands in relation to any proposed works and to avoid damage to important sites. That has been extended to cover notified NHAs in addition to designated NHAs. Section 50 of the Bill places a similar obligation on the Commissioners of Public Works when undertaking drainage schemes.

Overall, these are reasonable and appropriate measures to ensure that notified NHAs can be protected without placing an overly onerous or unfair burden on the landowner. In light of the legal advice afforded me I have gone as far as it is possible to go in providing protection to notified NHAs. I am satisfied that the Bill clearly provides that significant damaging works in notified NHAs can be prohibited. Accordingly, I cannot accept the amendments.

I am not going to be difficult but I support amendment No. 10. My amendment No. 11 is similar to it. I repeat the point I made on Second Stage that it is difficult to restore a site of natural heritage. It is not the same as restoring a building, as that can be done easily, but here one is talking about a delicate eco-system and restoration is not a completely parallel situation. However, I will not push the issue.

Senator Connor made a good point about another section which also applies to this section. The Minister gave concessions to people allowing them to cut turf on their own lands for ten years. Nobody cuts turf with a slean any more, while the sausage machine has not been used for years. Most turf is cut by large excavators, which can cause a fair amount of damage if the turf is being cut on a commercial basis. What constitutes significant damage?

One year of the ten-year concession given by the Minister has already passed. Must those with such concessions apply to the Department for permission to cut turf according to section 19 of this Bill? The Minister has not put the same restraint on local authorities. What happens if a gas line goes through one of these areas? There would be significant work involved in putting a pipe line through western areas.

My understanding is that the Minister allowed people to cut turf in SACs for ten years, which was very much appreciated. In some situations alternative bog sites were bought to relocate people. My reading of this is that there is no guarantee in an NHA that permission will be given to extract peat and that should be the position.

At the risk of repeating myself, the Senator keeps referring to issues that come under the special areas of conservation or SACs. He referred to the compensation scheme intro duced last year and the fact that domestic turf cutters were given ten year allowances.

I refer again to the situation I mentioned when replying to Senator Connor. When we are talking about what works entail we are concerned only where significant damage would be caused to the particular bog. The Senator asked for a definition but this will be taken on a case by case basis and one cannot make sweeping generalisations about such cases. We are talking here about cases where there is significant damage and a great deal of the works carried out by domestic cutters would not cause significant damage. Where there is significant damage there would be a case to answer. However, this would be seen on a case by case basis in consultation with my Department.

What the Minister is saying is that before a person cuts turf he or she must apply to her Department. Is that the situation? She said it will be taken case by case. Does it mean that every landowner wishing to cut turf for domestic use will have to apply to her Department on an annual basis once this Bill passes?

I understand why Senators are trying to make some play out of this, as it is an issue that affects a number of people. However, the situation regarding SACs is well understood; we are looking here at protection for NHAs. We want the domestic cutter to be able to continue cutting his or her turf, if that is their decision. There was a compensation scheme for those who wished to end cutting if they did so in the first year of the proposals put forward last year. If the cutter decides to continue cutting, as long as there is no significant damage that work can continue for the following nine years. Whether or not that work is damaging will be assessed on a case by case basis.

If the Senator has any particular issues he wishes to raise about the SAC scheme already in existence he is welcome to contact me about specific cases. In general terms I have always approached these issues based on consultation and openness.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

Acting Chairman

Amendment No. 13 is an alternative to amendment No. 12 and they are to be taken together by agreement.

I move amendment No. 12:

In page 20, subsection (1)(b), to delete lines 23 to 25 and substitute the following:

"(iii)not later than 6 months after the Minister is notified in writing pursuant tosection 19(1)(a), the Minister shall notify the occupier or owner of his or her decision; the Minister may extend the period in section 19(1)(b)(iii) by a further period of up to 3 months and when so extended the Minister shall inform the owner or occupier of the reason for this decision before the first 6 months period has lapsed.”.

This amendment arises from a stipulation in section 19 requiring a landowner to notify the Minister if he or she wants to carry out work on a designated natural heritage area. In that case the Minister can either immediately prohibit such work or agree to its being carried out. If the Minister does not do either of those within six months of being notified, the landowner can proceed with this work without any hindrance.

That provides a kind of lacuna within which an unscrupulous person can operate and it opens up the possibility of an undesirable development taking place. It could be argued that this is unlikely but it is clearly possible and we are putting a legal requirement on the Minister to reply within a six month period. That is not too onerous and I do not know why there should be so defensive an attitude to it. It is perfectly appropriate that there should be a legal requirement. It may be unlikely, and I doubt if it will happen to this Minister, but if there is a dereliction in duty by a Minister, why should there not be a legal sanction? No citizen, including a Minister, should be seen to be above the law. I do not understand why anybody should be exempt in this way from the provisions of the Bill and, therefore, we are right to press the amendment.

In the select committee the Minister accepted it was possible that there might be a systems failure within the Department. Human error is possible and the way we try to safeguard against that is by saying there will be fairly serious consequences if it happens. A Member of the other House raised the possibility of postal failure and so on. They are all possibilities but it is important that we protect our heritage in every way possible. I do not understand why there should not be a requirement because it is clear that if there is neglect or an oversight, or if something does not happen, landowners could inadvertently find themselves being able to proceed with a completely undesirable development. That is without even contemplating the possibility of a corrupt Minister. I am not raising that question because I do not believe it is likely. It is a possibility but it is not likely. Far more likely is something happening by accident and we indicate the seriousness with which we take this matter by implementing this amendment.

I support Senator Costello's amendment No. 13.

The Bill provides that a landowner must notify the Minister if he or she wishes to carry out work on a designated NHA. The Minister can either prohibit such work or agree to its being carried out. If the Minister does neither within six months of being notified, the landowner can proceed with the work. It is reasonable that the landowners have an assurance that they will have a decision on these proposed works within a specified period. The Attorney General's office is also strongly of this view. I am satisfied that six months is a reasonable period within which to make a decision both from the point of view of the landowner and of the Minister.

The amendment put forward by Senators Norris and Ross would put an obligation on the Minister to notify the landowner within a six month period or, failing that, to extend the period for decision by a further three months, in which case the Minister would be obliged to give a decision before the expiry of a cumulative nine months. Variations on this proposal arose in the Dáil and the Attorney General strongly advised against such a provision as it would leave the Minister of the day unduly and unnecessarily exposed to legal action. Furthermore, the placing of an obligation in law on a Minister to reply within a set date, while allowing that Minister to vary the time period involved, would not constitute good law.

Senators Costello, O'Meara and Ryan propose that an onus be put on the owners, occupiers or users of land to give a further 14 days' notice to the Minister at the conclusion of the stipulated six months period for a decision on proposed works on a designated NHA. That would not be satisfactory. Effectively it would involve the use of the applicant as part of the management process to ensure that his or her application was not overlooked. That would be unfair. It would be a most unusual approach and would not constitute good legislation, neither would such drafting be to the liking of the Attorney General's office. I appreciate, however, that the amendment is motivated by a desire to avoid the damaging of any NHA through the failure of the Minister to communicate a decision within the six month period.

I am aware that some NGOs raised concerns about the possibility of the Minister not replying within six months on purpose to allow development to proceed in a somewhat underhand way. Such fears are not well founded. I would not approach my responsibilities in such a cynical way. There is always the possibility of replies not being issued due to pressure of work, oversight, etc. However, that is something I intend to have addressed through proper management systems in respect of processes in my Department and, therefore, I do not propose to accept the amendment.

The Minister has put her finger on it. She has admitted this could happen because of pressure of work. We heard during the day, and I am sympathetic to this, that Department officials, particularly in the areas of scientific inquiry, may be over-worked and understaffed so we have opened up a situation where, with no ill will at all, this may happen within the six month period. Some of the research into the nature of an area to determine whether it is to be considered an area of natural heritage could be complex and might need, for various reasons – the light patterns of the insects, animals, birds or plants involved – a longer period than that proposed. We are looking for a three month extension.

I welcome the opportunity to record that I would exonerate the Minister from any cynical intention to benefit somebody by default or by neglect, but the possibility exists because of the situation of understaffing and overwork and the complicated nature of the work involved.

The Attorney General is an extremely able, gifted and fine person but he is probably a little conservative in these areas and it will not surprise Members on any side of the House to hear me say that. This is a significant amendment and it would be helpful if it were accepted.

I have given these reasons on great reflection. In a Department such as ours we would like to see greater staff and resources. Everyone in this House and in the lower House would support that particular view. In my tenure of office I was pleased to increase the number of rangers. We have 40 extra rangers on the ground to support us in what we want to do. I also have over 20 extra administrative staff and three regional colleges working within their own respective areas. I understand some of the arguments being put forward by Senator Norris but his amendment is not the way we should proceed.

In the select committee Deputy O'Shea said he would like to see a provision which approaches the matter in a different way in that, at the end of the six month period, the onus would be put back on the applicant to indicate to the Minister that he or she has received no decision in the matter. That would allow the Minister a further period of grace of a fortnight to make that reply. During the select committee hearings the Minister indicated she thought this was a reasonable proposal which she would examine. However, as I understand it, no such amendment was tabled by the Government and the legislation has not been amended. Why not? I would be prepared to accept this proposal in substitution for my amendment just to show I am fairly reasonable. However, I do not believe the Minister has included it in the legislation.

It does not seem much to ask that an applicant be given a decision as whether he or she is or is not allowed to proceed. Why should an applicant not be entitled to such a decision? If my amendment is not accepted, why not give applicants the opportunity to be informed if it is merely a case of an oversight?

That is a reasonable proposal from a lay person's point of view and that is why I put it to our legal advisers. Their advice was that it placed an onerous task on an applicant and, therefore, would not be fair or just. That is why I am unable to accept the proposal. From a lay person's point of view, the proposal sounded emi nently reasonable but I am told that, in law, it would not be seen as such.

Acting Chairman

Is the amendment being pressed?

I am afraid it is, Acting Chairman. I am not pressing the amendment just to be vexatious but because I was pushed on this matter and gave an undertaking that I would press it.

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Callanan, Peter.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.

Níl

Burke, Paddy.Coghlan, Paul.Connor, John.Doyle, Joe.Keogh, Helen.

Manning, Maurice.Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ross, Shane.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Norris and Quinn.
Question declared carried.
Amendment declared lost.
Amendment No. 13 not moved.

I move amendment No. 14:

In page 20, subsection (2), line 32, to delete "3" and substitute "6".

Senator Costello tabled this amendment to strengthen the Bill by providing for six months rather than three months notification.

This amendment proposes to amend section 19(2) which requires that a person shall not carry out potentially damaging works in a notified NHA without first giving three months notice to the Minister. Proceeding with works without giving such notification will constitute an offence. In most cases it will be possible to make a final decision on designation of an NHA within the three month period. Furthermore, section 20 enables the Minister to apply to the courts to seek the prohibition of such works.

The amendment proposes that the notification period given to the Minister before undertaking works in a notified NHA can be extended from three to six months. It is considered that the requirement for three months notification amounts to placing a burden on a landowner. The Attorney General's office is clear that any burden placed on a landowner in such circumstances must be reasonable and the legal advice is that a period of three months is appropriate. However, the imposition of a restriction of six months on a landowner runs the real danger of being found to be unreasonable and unnecessary.

From the perspective of allowing sufficient time to the Minister, a period of three months is adequate to facilitate necessary action. Three months allows time for the Minister to undertake an assessment of the implications of the proposed works to a notified NHA, to move to designate the site as an NHA if deemed appropriate or to proceed to seek a court injunction in the event of it being considered necessary to do so. Accordingly, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21.

I move amendment No. 16:

In page 22, subsection (1), line 41, after "Where" to insert ", otherwise than in accordance withsection 19,”.

This amendment proposes to limit the application of section 21, which gives the Minister powers to order restoration of damaged NHAs. There is a danger that this amendment could lead to a weakening of the protection afforded to NHAs. In general I do not anticipate that a direction to restore a site will be made after consent has been given to works under section 19. However, I draw the Senator's attention to the fact that conditions can be attached to a consent issued under section 19. In such cases works will be carried out pursuant to section 19 consent. It would be prudent to have the power to require that restoration be undertaken in regard to such cases. It could well happen that a person who obtains consent to carry out works under section 19 does not subsequently abide by the conditions attached to the consent. If damage is caused to an NHA in such cases it could well be that restoration would be appropriate.

If the words proposed by the Senators, "otherwise in accordance with section 19", were inserted in this section it could be a matter of argument or interpretation as to whether the person who had consent, albeit subject to conditions, had acted in accordance with section 19. The Senators' proposal would, therefore, leave open the possibility that a person could seek to evade having to carry out restoration on an NHA in cases where restoration would be appropriate.

It may be that the Senators are concerned about a hypothetical scenario where a person could be directed to restore a site after they had carried out works in good faith, having obtained consent under section 19. I assure them it is not the intention that this section could be used in this manner. I have absolutely no doubt that it would not be proper nor would it be legally feasible to given a person consent and then require him or her to restore the site if damage was caused as a result of actions taken on foot of that consent. I cannot, therefore, accept the proposal as it would lead to a weakening of the protection of NHAs.

Am I correct in assuming that there is a misprint? It is highly unusual to open inverted commas and follow them immediately by a comma. I am not sure whether the Minister can answer this.

Acting Chairman

There may well be a misprint. We will deal with it if the amendment is agreed.

Amendment, by leave, withdrawn.
Section 21 agreed to.
NEW SECTION.

I move amendment No. 17:

In page 23, before section 22, to insert the following new section:

"22.–Where works are carried out on land, an application undersection 20 may not be made, nor may a direction under section 21 be given, later than 10 years from the date of the carrying out of the works concerned.”.

While I understand the intention of the Senators in the amendment, having considered it in detail I cannot accept it for a number of reasons. The amendment would give rise to practical difficulties. The essence of the problem is the requirement that would exist to establish definitively when the alleged works within an NHA were carried out. This would necessitate establishing the specific dates involved. It would be extremely difficult to prove the exact date or dates when the relevant works were carried out, particularly if a number of years had passed, which is likely in the scenario envisaged by the Senators.

The obligation on the Minister to determine precisely where works were carried out could be used quite effectively by owners/occupiers of lands as a way to avoid having to restore the lands in question. I am determined when restoration is an option in the case of alleged damage to NHAs that my Department should act expeditiously to remedy it by endeavouring where appropriate to have the site restored as soon as is reasonably possible.

I do not envisage a scenario where my Department would intervene more than ten years after the works had allegedly been undertaken to order the restoration of an NHA. In any event I expect that after such a period it would prove extremely difficult to restore an NHA effectively. I cannot agree to the amendment on these grounds.

Amendment, by leave, withdrawn.
Sections 22 to 31, inclusive agreed to.
SECTION 32.

I move amendment No. 18:

In page 32, line 49, after "regulations" to insert "which in the opinion of the Minister is fit for commercial exploitation".

The amendment draws attention to one of the principal changes which will result from the legislation that will affect our approach to the conservation of wildlife in Ireland. The House may be surprise to note that the Wildlife Act, 1976, excluded from its general scope all fish and aquatic invertebrate species. In practical terms, such an approach at the time meant that tens of thousands of species from both marine and freshwater ecosystems were off limits from conservation consideration.

While such a scenario may have been understandable in 1976 it would be completely at variance with events today when an ecosystem or holistic-based approach to biodiversity conservation is adopted. The legislation brings all wild animal as well as wild plant species within the scope of the Act, apart from certain species relevant to fisheries, whether commercial or recreational, which will be excluded. The section contains a provision which provides for the exclusion of species relevant to fisheries which will in turn be specified in regulations to be made under the section.

The intention is that species relevant to any type of fishery can be excluded by listing them under the regulations. Species listed are likely to be relevant to existing commercial fisheries or to other types of fishing such as sport or recreational fisheries, for example, coarse fish. Species which are not yet subject to commercial exploitation but which are under consideration or are the subject of trials to investigate their potential for exploitation or which may become so in the future may be listed under the regulations. Limiting excludable species, as proposed in the amendment, to those fit for commercial exploitation would be overly restrictive.

I reiterate the overall change in the scope of the Act to comprehend the vast majority of wild species represents a fundamental departure in wildlife conservation in Ireland. Such broadening of the basis of wildlife legislation is of great significance as it establishes a new and comprehensive framework within which the conservation of biodiversity can be addressed in advance. I cannot accept the amendment in the circumstances.

Amendment, by leave, withdrawn.
Section 32 agreed to.
Sections 33 to 35, inclusive, agreed to.
Amendment No. 19 not moved.
Sections 36 to 45, inclusive, agreed to.
SECTION 46.

Acting Chairman

Amendment No. 20 is in the name of Senator Norris. There is an error in the printed list. The word "and" should appear before the word "safety" in the last line of paragraph (b)(i).

I move amendment No. 20:

In page 44, between lines 25 and 26, to insert the following:

"(b)(i)in subsection (2)(a), by the insertion of the following after ‘ditch':

‘provided cutting is confined to strictly what is necessary for reasons of public health and safety',

(ii)in subsection (2)(b), by the insertion of the following after ‘agriculture':

‘provided cutting is confined to strictly what is necessary for reasons of public health and safety',".

The matter has been discussed at some length on various Stages of the Bill. It is intended to confine the cutting of hedgerows and ditches and so on strictly to what is necessary for reasons of public health and safety. Nobody is arguing against public health and safety if these questions are involved but, if not, we feel that the hedgerow and its life should be protected.

The amendment proposes that the cutting of hedgerows and other vegetation during the restricted period by those involved in the practices of forestry or agriculture should be permitted only where public health and safety concerns apply. Such an amendment is not appropriate. I have already introduced a number of new provisions in the section which have strengthened the protection afforded to hedgerows, principally because of their key role as nesting places for birds.

These provisions include a categorical statement that the section applies to hedgerows; a six week extension of the period during which hedgerows and other vegetation may not be cut – the revised period will run from 1 March to 31 August; permitting Government Departments and statutory bodies, including local authorities, to cut hedgerows during the restricted period only where public health and safety concerns arise; and empowering the Minister, where it is considered necessary, to request details from Government Departments and statutory bodies, including local authorities, of works undertaken and specifically the public health and safety reasons for such works.

The Senator will agree that these provisions represent major progress in the protection of our hedgerows and the species nesting therein. These restrictions are sufficient in the present climate. Imposing restrictions on members of the farming community, for example, could be counterproductive in that it could encourage farmers to regard hedgerows, ditches and vegetation as a hindrance or an inconvenience, which is not the message I am trying to get across in the legislation.

Hedgerows in Ireland originated for the most part in the 17th century. We must not forget that many of our hedgerows would not exist were it not for the farming or forestry practices in recent centuries. The way forward is not to have farmers living in fear of prosecution when they cut back a hedgerow, but instead to build on their goodwill by encouraging them to manage their hedgerows in a conservation-friendly way.

The REP scheme administered by my colleague, the Minister for Agriculture, Food and Rural Development, which promotes the conservation and maintenance of features that make up the farmland landscape, constitutes a good example of this approach in action. Among the measures included in the REP scheme are controls over the removal of field boundaries and requirements for farmers to maintain and repair hedgerows. Such measures are backed by incentives.

The popularity and success of the REP scheme demonstrate that, where farmers are properly informed and advised and where potential loss of income is offset, practices can be adopted by the agricultural community that will protect and preserve these precious corridors of life. I also propose in the context of the national biodiversity plan which is being prepared in my Department at present to highlight further the importance of maintaining our hedgerows as part of the process of heightening public awareness.

The amendment proposed by the Senators could be counterproductive in that it could cause hedgerows to be regarded as problems rather than assets. This would undo a great deal of the good work achieved under REPS and in other ways and would prejudice what can yet be achieved through continuing consultation and encouragement. For the above reasons, I cannot accept the amendment.

It is a carrot and stick approach. The Minister prefers the carrot and my advice is that the stick may be necessary. I hope her carrot works. I withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 22 is consequential on amendment No. 21 and both may be discussed together by agreement.

I move amendment No. 21:

In page 44, paragraph (d), lines 46 and 47, to delete “The Minister may request from the person concerned” and substitute “The person concerned shall provide to the Minister”.

This is about keeping records. I know Members feel we have discussed this at considerable length, but I put it forward and await the Minister's reply.

These amendments would oblige Departments and public bodies, including local authorities, to provide details to the Minister every time they carry out the cutting, grubbing or destroying of vegetation for reasons of public health and safety. Under the provisions I have proposed, the Minister will be empowered to request such details in any case where it is considered necessary. The Senator's proposed amendments are neither necessary nor workable.

There has been a great deal of debate during the passage of the Bill through the other House and the Seanad as to whether my Department has the resources to implement it effectively. I explained on Second Stage in this House the progress I had made on additional resources since my appointment and I referred to them again today when I referred to the 40 additional conservation rangers who have been recruited in that period.

It is not just about staff numbers, however. It is also very important that efficient and effective use is made of the resources available to me. Were this amendment to be accepted and public bodies to be legally obliged to submit details to me every time they carried out cutting or grubbing of vegetation, including hedgerows, it would place an obligation on my staff to examine each notification and make a determination as to whether the works were carried out for public health and safety reasons. The majority of hedge cutting undertaken by public bodies which would be permitted under this section as public health and safety issues would be likely to be involved.

To have my staff examine hundreds if not thousands of notifications each year would be most wasteful of time and resources. Equally, to compel local authority officials to submit details to me each time it was proposed to cut a hedge during the restricted period would be impractical from their perspective. In any case, where I have reason to believe that there may be a problem, I can request details from the Department, public body or local authority concerned together with information on the public health or safety reasons involved. I intend to monitor the effectiveness of this provision in coming years. For example, if there is a concern that a local authority is regularly acting outside the terms of the legislation, I can request it to provide me with information on a regular basis if I consider it necessary.

I am satisfied the provisions in place in this section are sufficient and workable. The amendments proposed would amount to overkill and would be largely unworkable. Hence, I cannot agree to them.

Amendment, by leave, withdrawn.
Amendment No. 22 not moved.
Section 46 agreed to.
Sections 47 and 48 agreed to.
SECTION 49.

I move amendment No. 23:

In page 48, between lines 18 and 19, to insert the following:

"(b)by the insertion of the following after paragraph (b):

‘(c)any maintenance on any existing land drainage scheme within the meaning of the Arterial Drainage Acts, 1945 and 1995,',”.

Will the Minister accept this very sensible amendment?

It is not appropriate to include in the Bill a provision such as Senator Manning's obliging the Office of Public Works to consult the Minister prior to carrying out any maintenance work on existing arterial drainage schemes. Most such drainage schemes have been in place for many years and are ongoing works necessary to avoid flooding. The imposition at this stage of legal requirements on works and schemes which have already been sanctioned would be both inappropriate and unnecessary. It is also probable that the passage of this amendment would necessitate the revision of arterial drainage legislation.

The schemes being examined or undertaken under the 1995 Arterial Drainage (Amendment) Act deal in the main with localised urban flooding. All wildlife and environmental considerations are assessed in the development of these schemes and they are also subject to a consultation process. Furthermore, every new arterial drainage scheme must go through a public exhibition process prior to confirmation of the scheme.

It should be appreciated that, while isolated wildlife problems have arisen regarding drainage maintenance, the overall position is not wildly problematic. In general, drainage maintenance does not have significant adverse effects on wildlife. On the other hand, a recent independent review of drainage found the economic benefits of drainage maintenance to be considerable. Current weather conditions bear out the importance of drainage works. Recent experience shows that not only can flooding have an economic cost but it can cause serious disruption and real hardship and misery for many people. Not only can such problems arise as isolated incidents but on severe occasions they may be widespread and affect many people in both urban and rural areas. The matter is best addressed through consultation and agreement.

To address any potential problems, an interdepartmental committee comprising representatives of my Department and the Office of Public Works has been established to deal with wildlife issues involved in drainage work. This committee has been very successful in preventing problems and resolving difficulties where they arise. I intend to continue with the successful co-operative and practical approach as it is the most appropriate mechanism to deal with wildlife issues arising from drainage maintenance.

Regarding areas in NHAs where drainage is a problem, if work is not undertaken, problems can be caused upstream. A number of such areas exist where, in the event of drainage works not being carried out, problems can be caused further upstream. I understand the Minister has considered this fully and has explained it in great detail. I am anxious, however, that her officials are aware of that problem because it is a concern.

There are concerns about upstream areas and the Minister should accept the amendment. I will press it.

Amendment put.

Burke, Paddy.Coghlan, Paul.Connor, John.Keogh, Helen.Manning, Maurice.

Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ross, Shane.

Níl

Bohan, Eddie.Callanan, Peter.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.

Tellers: Tá, Senators Burke and Connor; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Section 49 agreed to.
Section 50 agreed to.
Amendment No. 24 not moved.
Sections 51 to 55, inclusive, agreed to.
Amendment No. 25 not moved.
Section 56 agreed to.
Amendment No. 26 not moved.
Section 57 agreed to.
Amendment No. 27 not moved.
Sections 58 to 67, inclusive, agreed to.
SECTION 68.

I move amendment No. 28:

In page 72, to delete lines 1 to 9 and substitute the following:

"and

(ii)by the substitution, in paragraph (a), of ‘conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, or to both' for ‘conviction'

(a)in the case of a first offence under the particular section or subsection, to a fine not exceeding fifty pounds,

(b)in the case of a second such offence, to a fine not exceeding one hundred pounds, and

(c)in the case of a third or subsequent such offence, to a fine not exceeding two hundred pounds',”.

Amendment No. 28 will amend section 74 of the principal Act, which outlined the level of fines that may be imposed for offences committed under the Wildlife Act. The principal Act outlined three levels of offence with varying penalties applying, depending on the level of offence committed. In the case of lower level offences, the level of penalty varied also depending on whether a first, second or subsequent offence was involved. Through section 68 of the Bill I am maintaining the graduated system of penalties, while substantially increasing the level of fines applicable. I am also providing for the imposition of prison sentences at all levels of offence. Under the principal Act the maximum fine was £500 with no possibility of imprisonment. I am increasing the maximum fine to £50,000. Terms of imprisonment can be combined with a fine or imposed separately.

The maximum term in relation to a lower level first offence is three months and this rises to a maximum of two years at the top of the scale. The Senator's proposal would end the current graduated system of penalties for ordinary offences under the legislation as outlined. I do not favour this approach and I am backed up in this regard by the advice of the Office of the Attorney General which is that it would generally be inappropriate to have the same level of penalties for first offences as for repeats.

Many circumstances could arise where an individual, through an oversight perhaps or through a lack of knowledge of the relevant legislation, might commit a relatively minor offence under the wildlife legislation. In such cases it would be unreasonable to impose a sizeable fine, possibly £1,500 and/or 12 months imprisonment, on that individual, as envisaged under the Senator's proposals. My proposed maximum fine of £500 and/or a term of imprisonment of up to three months, provides adequate scope for an appropriate punishment.

Under my proposals, if the same person was to commit a further offence, he or she would potentially be liable to increased fines and a longer term of imprisonment, as a defence based upon on ignorance of the legislation would not hold as much weight. On a third conviction, the maximum level of punishment would be the same as for a summary conviction of a more serious offence under the Wildlife Acts.

In relation to section 68 generally, the provisions stipulate that offences committed in respect of NHAs will fall within the category drawing the heaviest penalties. I have decided to also provide that offences committed in special areas of conservation will be dealt with similarly. It would be inappropriate to impose a lighter regime on SACs than on NHAs. Substantially increased penalties taken in conjunction with other measures introduced by the Bill will serve to enhance greatly the protection and conservation of our important habitats and of our wildlife generally. I do not propose to accept the amendment.

Amendment, by leave, withdrawn.
Section 68 agreed to.
Sections 69 to 75, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.

Acting Chairman

When is it proposed to take Report Stage?

Next Tuesday.

Report Stage ordered for Tuesday, 5 December 2000.

Acting Chairman

When is it proposed to sit again?

Tomorrow morning at 10.30 a.m.