This amendment dealt with the transfer of certain ministerial functions. Can we be assured that these are open, transparent, fair and impartial? We must ensure that there is independence in this area and I hope the Minister can elaborate on that.
Planning and Development (Strategic Infrastructure) Bill 2006: Committee Stage (Resumed).
Debate resumed on amendment No. 113:
In page 57, before section 29, to insert the following new section:
"29.—The following section is inserted after section 215 of the Principal Act:
215A.—(1) The functions of—
(a) the Minister for Communications, Marine and Natural Resources,
(b) any other Minister of the Government,
or
(c) the Commission for Energy Regulation,
under sections 31 and 32 of, and the Second Schedule to, the Gas Act 1976, as amended, in relation to the compulsory acquisition of in relation to the compulsory acquisition of land in respect of a strategic gas infrastructure development are transferred to, and vested in, the Board, and relevant references in that Act to the Minister for Communications, Marine and Natural Resources, any other Minister of the Government or the Commission for Energy Regulation shall be construed as references to the Board and any connected references shall be construed accordingly.
(2) The transfer of the functions of the Minister for Communications, Marine and Natural Resources, any other Minister of the Government or the Commission for Energy Regulation to the Board in relation to the compulsory acquisition of land in accordance with subsection (1) shall include the transfer of all necessary ancillary powers in relation to deviation limits, substrata of land, easements, rights over land (including wayleaves and public rights of way), rights of access to land, the revocation or modification of planning permissions or other such functions as may be necessary in order to ensure that the Board can fully carry out its functions in relation to the enactments referred to in subsection (1).
(3) Article 5 of the Second Schedule to the Gas Act 1976 shall not apply in respect of the function of compulsory acquisition transferred to the Board under subsection (1).".
(Minister for the Environment, Heritage and Local Government).
The Minister already spoke on the amendment.
Amendment agreed to.
SECTION 29.
Government amendment No. 114:
In page 57, line 47, to delete "section 214" and substitute "section 214 or 215A".
Amendment agreed to.
Section 29, as amended, agreed to.
NEW SECTION.
Government amendment No. 115:
In page 58, before section 30, to insert the following new section:
"30.—Section 218 of the Principal Act is amended—
(a) by substituting the following subsection for subsection (1):
‘Where, as a result of the transfer of functions under section 214, 215 or 215A, the Board would otherwise be required to hold a local inquiry, public local inquiry or oral hearing, that requirement shall not apply to the Board but the Board may, at its absolute discretion, hold an oral hearing in relation to the matter, the subject of the function transferred.', and
(b) in subsection (4), by substituting ‘sections 214, 215 and 215A’ for ‘sections 214 and 215.’.”.
Amendment to amendment not moved.
Amendment agreed to.
Section 30 deleted.
SECTION 31.
Government amendment No. 116:
In page 58, to delete lines 46 to 51 and substitute the following:
"219.—(1) Where the Board has made a decision in the performance of any functions transferred under section 214, 215 or 215A, it may at its absolute discretion direct the payment of such sum as it considers reasonable by the local authority concerned or, in the case of section 215A, the person who applied for the acquisition order (hereafter in this section referred to as the ‘applicant')—".
Amendment to amendment not moved.
Amendment agreed to.
Amendment No. 117 not moved.
Government amendment No. 118:
In page 59, line 25, after "local authority" to insert "or applicant, as appropriate,".
Amendment agreed to.
Government amendment No. 119:
In page 59, line 30, after "local authority" to insert "or applicant, as appropriate,".
Amendment agreed to.
Government amendment No. 120:
In page 59, line 33, after "authority" to insert "or applicant, as appropriate,".
Amendment agreed to.
Section 31, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 121:
In page 59, before section 32, to insert the following new section:
"32.—Section 221 of the Principal Act is amended—
(a) in subsections (1) and (7), by substituting ‘section 214, 215 or 215A’ for ‘sections 214 and 215’, and
(b) in subsections (2) and (5), by substituting ‘section 214, 215 or 215A’ for ‘section 214 or 215’.”
Amendment agreed to.
Government amendment 122:
In page 59, before section 32, to insert the following new section:
"3.—Section 223 of the Principal Act is amended—
(a) in subsection (1), by substituting ‘section 214, 215 or 215A to the Minister, any other Minister of the Government or the Commission for Energy Regulation’ for ‘section 214 or 215 to the Minister’, and
(b) in subsection (2), by substituting ‘section 214, 215 or 215A’ for ‘section 214 or 215’.”.
Amendment agreed to.
Sections 32 and 33 agreed to.
SECTION 34.
Government amendment No. 123:
In page 60, line 2, after "47" to insert "(as amended by the Railway Safety Act 2005)".
This is a technical amendment to section 34, which replaces sections 37 to 47, inclusive, of the Transport (Railway Infrastructure) Act 2001. The amendment simply clarifies that the amendment is to that Act, as amended by the Railway Safety Act 2005. The 2005 Act amended the period of public consultation as set out in section 40 of the 2001 Act from 14 to 30 days. The Bill replaces this section and changes the time period to six weeks, bringing the process into line with the other consultation periods set out for strategic infrastructure in the Bill and creating a consistent approach across all forms of strategic infrastructure.
Amendment agreed to.
Amendments Nos. 124 and 125 not moved.
I move amendment No. 126:
In page 69, line 34, after "as" to insert the following "references to the Minister for the Environment, Heritage and Local Government, and".
This amendment updates the references to the Minister, who is referred to in the Bill as the "Minister for the Environment and Local Government". The heritage portfolio was transferred to the Minister two years ago and now forms an important part of his responsibilities.
The amendment is incorrectly worded but, rather than cause a delay, I will consider the matter with the Chief Parliamentary Counsel and revert to the Deputy, sorry the Senator, on Report Stage.
It is somewhat premature to call me a Deputy, although I hope to have that title after the next general election.
The Senator has probably been called worse.
The word "heritage" is not yet included in the title of the Oireachtas Committee on the Environment and Local Government. That issue should be addressed because there is significant interest in Irish heritage and culture and the Minister plays an important role in this area. When extra powers are given to a Minister, it is proper that they are acknowledged.
The Senator made a valid point. If he does not press the amendment at this stage, I will revert to him on Report Stage because he may be correct that the wording needs to be tidied up. It would be appropriate to do so, given the additional emphasis being placed on heritage.
I am not pressing the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 127:
In page 69, between lines 41 and 42, to insert the following:
"(2) The Agency or CIE shall not acquire land compulsorily under this section without first engaging in bona fide reasonable efforts to acquire the land by agreement.".
This amendment is self-explanatory.
The amendment seeks to require the Railway Procurement Agency or CIE to engage in bona fide reasonable efforts to acquire land by agreement before seeking a compulsory order. I do not propose to accept the amendment because, even if it was possible to determine with precision what is meant in practice by "bona fide reasonable efforts", we are not placing this requirement on any other body involved in the compulsory acquisition of land and it would be inappropriate to do so in the case of railway authorities trying to buy land to extend our public transport network. It would throw a legal landmine into the process and could work against the standardisation of procedures we are trying achieve in the Bill, as well as raising the danger of vexatious challenges. A different and more onerous requirement in terms of compulsory purchase orders would apply in the area of public transport. It would not, therefore, be wise to accept the amendment.
Amendment, by leave, withdrawn.
Amendment No. 128 not moved.
I move amendment No. 129:
In page 70, line 34, to delete "then" and substitute "than".
Amendment agreed to.
Amendments Nos. 130 and 131 are related and may be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 130:
In page 70, line 54, after "be" to insert "either".
The eight-week period should not start until notice has been served. This minor amendment would allow for more transparency.
It is not quite that simple. The board must publicise the making of a railway order as early as possible upon making the order. That will facilitate wide notification of the making of the order and as a consequence it is appropriate that the eight-week period start on the date of the making of the railway order. As the Senators know, it is critical that any challenges are taken as quickly as possible after a decision so that the railway operator can be certain how to progress. That is why we have the eight-week limit and we cannot extend it potentially indefinitely, as the amendment proposes.
The Senator's amendment could also introduce a degree of confusion as there may be some difficulty with serving a notice. If we want to continue within the timeframe of the Bill, the eight-week period we have set is the best way forward. The amendment proposes that the eight-week period for making an application for leave would begin on the date the order is made. There is certainty in doing it in the way proposed while there is a degree of uncertainty and potential for confusion in the way proposed by this amendment.
I do not suggest extending the period as the Minister said, but that the eight-week period should not begin until the notice is served.
I made the point that there could be difficulties with serving the notice and this could cause confusion. If there is a court challenge in the normal course of events and it is felt that there is a deficiency in the notice, or that the notice has not been sufficient to allow a person to seek the legal redress under discussion here, it would be a matter for the discretion of the courts to allow the person that additional latitude. If we were to take this route and open a question as to when the clock starts ticking we would have difficulties. By the board publicising the making of the railway order as early as possible, giving it due publicity and beginning the eight-week period from that date, everybody knows what is the period. If there is an issue with deficiency, if a person has a bona fide reason, for reasons we cannot foresee, to say he or she did not get enough notice, the court would take that matter on board in the event of a legal challenge. I would not be in favour of opening the door to legal challenges that may be vexatious.
When a notice is served, any notice, even a summons, the date is specified, and it would be specified in this case. It would not open the door to legal challenges. I am asking that the eight weeks do not begin until the notice has been served. The date on which the notice was served would be confirmed on the notice.
I return to my point that there is not always the certainty that one can find the person on whom to appropriately serve the notice. If there is a deficiency in the amount of time and some bona fide reason why a court should hear a case after the eight weeks, the court would have that discretion. It would be unwise to open the gates and allow prevarication on this. I can see difficulties. I am content that the arrangements as they are would not impose any unjust requirement on people or deny them a reasonable opportunity to go to court if there was some deficiency in the notice. It is better to have certainty, that the board would publicise the making of the order and that as soon as the publication is made the eight-week period begins. It would be unwise to take the other route, therefore, reluctantly, I cannot accept the amendment.
Amendment, by leave, withdrawn.
Amendment No. 131 not moved.
I move amendment No. 132:
In page 71, line 22, to delete "ex parte" and substitute "ex parte”
Amendment agreed to.
Amendment No. 133 not moved.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday.
Report Stage ordered for Tuesday, 9 May 2006.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.