Seanad Éireann debate -
Thursday, 10 Apr 2014

Adjournment Matters

School Health and Safety Issues

Senator Darragh O'Brien

I thank the Minister of State, Deputy Kathleen Lynch, for coming to the House to respond to this Adjournment matter on the need for the Minister for Education and Skills to provide enhanced safety measures for pupils of schools accessed by roads not taken in charge by local authorities. This is an issue prevalent across the country, particularly at many of the new schools built in the past few years. An example in this regard is Skerries Educate Together national school, on which I will provide some background. The school opened in 1 September 2008 with 34 pupils enrolled. There are now 234 pupils attending the school and it is expected that by 2014 there will be 460 pupils enrolled at the school. The school serves the greater Skerries-Balbriggan-Balrothery-Lusk-Rush area and is a busy school. The Minister of State may be familiar with the Fingal schools model whereby the council sources land from developers, a school is constructed and then passed on to the Department of Education and Skills, which has been very successful.

While Skerries Educate Together is going well, there is a major road safety issue at the school. The school has requested on a number of occasions of Fingal County Council that a traffic warden and fully accessible crossing point, similar to those provided at other schools, be provided at the school. The school caters for children from five years upwards. However, the council response has been that this location was examined on a number of occasions and it was noted that the area immediately adjacent to the school is in private ownership and the school warden service is not provided by the council on private lands. I hope we will not have to wait for a tragic accident at the school before this matter is dealt with.

The principal and board of management at the school have been in contact with the developer of the adjacent site, who, with the council, has been endeavouring to have the road taken in charge. I will provide my notes on this to the Minister of State later. I am using Skerries Educate Together as an example of similar situations at other schools around the country. The council will not even have proper road markings put in place around the school. The owner of the road cannot understand the reason the council will not take it in charge. The school now finds itself in the position of being unable to provide for the safety of its pupils due to circumstances beyond its control. It is not in a position to compel the council to take the road in charge. The matter is now left up in the air. While the school fund-raised to pay for road markings, it is unable to have this done because the work is not covered by the insurance of the owner of the road.

In the local authority's view, this is not its problem. I have written to the Department, which has stated that it cannot do anything even though the issue is one of safety of pupils at school. I have given the example of Skerries Educate Together national school. As I said, there are other schools in similar situations. I believe a directive on this matter needs to issue from either the Department of the Environment, Community and Local Government or the Department of Education and Skills. Surely the safety of school children is paramount and the council should be directed to take the road in charge, perhaps by way of a caretaker's agreement initially while the outstanding issues are being dealt with, and to appoint a school warden and put in place a crossing point to ensure the safety of the children.

I hope I have adequately outlined the issue which is prevalent in Skerries and at many other schools across the country. I look forward to hearing the Minister of State's response.

Minister of State at the Department of Health (Deputy Kathleen Lynch)

As the Senator's matter, as drafted, does not provide the level of detail which he has just provided, which detail is always important, I would appreciate if he could pass on his notes to me later. I know from my experience at local government level for many years that there are always issues in regard to taking in charge, etc.. The local authority needs to be certain it will not ultimately be held responsible for obvious defects and in this regard needs to sort out all of the issues before taking roads, etc., in charge. As stated by the Senator, this is not an issue for the Department of Education and Skills but more appropriately the Department of the Environment, Community and Local Government. However, local authorities cannot simply wash their hands of the need to address safety issues, which in this instance happens to relate to a school but could well be in relation to access to a housing estate and so on.

I am taking this matter on behalf of my colleague, the Minister for Education and Skills, Deputy Ruairí Quinn, who thanks the Senator for raising this matter. In regard to sites for new school provision, of which many have been built owing to the increase in our population, which is good for all of us, there are a range of factors which are taken into account in assessing the suitability of a particular site, including safe access, traffic management and mobility issues. Considerations include safe circulation on the school grounds such as appropriate provision for school buses, pedestrian and bicycle access, staff and visitor parking, car set down and pick up provision and also safe access to the grounds.

With regard to the site lay-out and road safety provisions, safety in accessing the school by road can be improved by managing the traffic away from the routes used by schoolchildren, promoting diversity of modes of transport to reduce vehicular congestion and the provision of traffic calming measures. I acknowledge this is not always possible where there is only one entrance to a school. Access roads to school sites are governed by the planning requirements set by the local authority. This is the situation regardless of whether the road is subsequently taken in charge by the local authority or remains in the ownership of the third party on whose lands it has been constructed.

As part of the planning process, the design team engaged to design the school site lay-out consults with the relevant local authority. It is a matter for the relevant local authority as part of the statutory planning process to set out its requirements in relation to the provision of appropriate road safety measures. In most cases, the preplanning consultations would identify issues such road signage or traffic calming measures which the local authority might require to be incorporated into the design and construction of the access roads. Like the Senator, I am surprised this was not done in this instance. In these instances, the Department of Education and Skills would take the requirements of the local authority into account when making the application for planning permission for the project. Similarly, where a local authority conditions certain elements of a road design or additional infrastructure to deal with health and safety concerns or to facilitate pedestrian or cycle access, the Department would, in all instances, comply with such conditions.

In regard to the Senator's concerns about the health and safety of a school community he should advise the school to contact the planning and building unit of the Department of Education and Skills to discuss these concerns. I agree with him that this is also an issue for the Department of the Environment, Community and Local Government.

Senator Darragh O'Brien

I thank the Minister of State for her response. I did try to be more specific in the motion tabled, but it can be difficult to have adjournment matters selected if they are too specific. As requested, I will provide the Minister of State with the details and will take up the matter with the building control unit. The Minister of State outlined in her reply the guidelines in regard to what needs to be governed in planning terms in regard to the location of a school. In this instance, the local authority has not done its job properly. It has now an opportunity to rectify the matter. At the very least, it should give priority to it, particularly as what is involved is the safety of children.

Seaweed Harvesting Licences

Senator Trevor Ó Clochartaigh

This issue relates to the cutting of seaweed along the coasts of Ireland, particularly the west coast, a tradition that has been ongoing for many years. Traditionally, people who cut seaweed do so on a particular strip of the foreshore, which is not then cut by any other person. The old Irish saying "spite feamainne" was used when rows broke out because some people had cut into the strips of others on the foreshore, etc.

I am aware of recent media reports of letters being sent by the Department of the Environment, Community and Local Government to people who are cutting seaweed indicating that in the future they will require licences to do so.

This is a new occurrence and seaweed cutters are wondering why this has begun to happen. In addition, people have been examining the issue and they noticed that a number of companies have applied to the Department for licences. According to my research, four applications are in train: one in County Donegal; one from Arramara Teoranta which covers the shoreline from Belmullet in County Mayo down to County Clare; and two others, one of which affects Clew Bay and the other affects some limited seaweed cutting in Connemara.

In the last week the seaweed cutters have organised two public meetings in Connemara which were attended by big crowds. Quite a few elected representatives were also there. The seaweed cutters are concerned that their livelihoods will be affected by any changes that may come forward. There have been questions over the legality of cutting. As we know that the foreshore is in the ownership of the State, where do people stand who may have a folio stating that they own part of the foreshore? Does the latter group have different rights to those who only cut and sell seaweed to the factories? People were seeking clarification of these issues.

In a broader scenario, people are also concerned that Arramara Teoranta, which is a State-owned company under the auspices of Údarás na Gaeltachta, is being sold off as a State asset. We understand that negotiations are going on with a Canadian company that wishes to by it. The seaweed cutters are concerned that a licence regime is being introduced whereby Arramara Teoranta will get the licence which will then be sold on to the private Canadian company. We will, therefore, be selling off seaweed cutting rights to a private entity. The cutters are worried that in those circumstances they will not have much control over when, where and how the seaweed can be cut, as well as the price involved.

As there are genuine concerns about this matter all along the west coast, I would welcome any clarification the Minister can give us on the legal position. Where do people stand legally if they own a folio which says they have a legal right to the foreshore vis-à-vis those who do not have such a right but cut generally on the foreshore?

Deputy Kathleen Lynch

I thank the Senator for raising this matter which I am taking on behalf of the Department of the Environment, Community and Local Government. The Department plays a role in regulating the harvesting of wild seaweed and it is necessary to ensure that this valuable resource is managed appropriately both to ensure it remains sustainable and that the marine environment is protected.

The Foreshore Act 1933 prohibits the removal of beach material from any area of the foreshore. The definition of "beach material" in the Act includes seaweed whether growing or rooted on the seashore, or deposited or washed up by the action of tides, winds or waves. Seaweed that has been washed above the high water mark no longer belongs to the State. Under the Act, individuals or companies seeking to harvest wild seaweed from the foreshore require a foreshore licence from the Department. The legislative requirement to hold a foreshore licence for seaweed harvesting has been in place since the enactment of the Foreshore Act in 1933.

I understand, however, that there may also be folio rights in certain cases and that deeds to privately-owned land adjacent to the foreshore may in some instances grant limited harvesting rights. The Department is seeking advice on how such rights interact with the legislation. It is worth clarifying, however, that the vast majority of foreshore is owned by the State and that continuing access to the foreshore by individuals does not lead to any ownership rights. While private individuals may have been taking seaweed in small quantities for personal use, harvesting large quantities which might damage the seaweed crop in a particular area or have adverse effects on the marine environment, is something that Ireland needs to avoid.

Seaweed is a valuable resource and, in recent years, has become a growth industry. Seaweed is now also being used as an ingredient in cosmetics, pharmaceuticals, fertilisers, organic food and animal health supplements. A number of foreshore licence applications for seaweed harvesting have been received by the Department and are currently under assessment. These applications vary considerably and are made by both individual and commercial harvesters. All foreshore licence applications are subject to a public consultation process and any person may submit comments to the Department.

As well as being an economic resource, it should be remembered that living seaweed acts as an important habitat for marine and coastal species, and can provide spawning and nursery grounds for many species. Applications are, therefore, assessed in the context of the relevant regulatory framework, including any nature conservation obligations. The Minister is acutely aware of the need to prevent the over-exploitation of this valuable resource. The regulation of seaweed harvesting under the Foreshore Act facilitates the sustainable management of the resource.

Ireland's foreshore is a national asset and it is essential that seaweed harvesting on the foreshore is cognisant of the need to protect the foreshore for present and future generations. The sustainable management of Ireland's wild seaweed resources is the focus of the Department's efforts in licensing this activity.

The specific issue of seaweed harvesting licensing is currently under review in the context of the forthcoming marine area and foreshore (amendment) Bill. The issues raised will form part of that review. While I have provided some answers for the Senator, there are also a few things about which we will need to get further information in order to have them clarified.

Senator Trevor Ó Clochartaigh

I thank the Minister of State for her reply and I appreciate that it is a work in progress. I ask her to relay to the Minister for the Environment, Community and Local Government, Deputy Phil Hogan, our desire to be updated on the legal advice he is getting. It is an emotive issue for the people involved. Can the Minister also take on board the wishes of the local community as expressed by 200 people at two local meetings in Connemara at the weekend? They want to maintain a fair trade role if possible whereby cutters will have a role in the industry and the selling rights, be it through a co-operative or otherwise. These rights should not be given over to a private company which could dictate to the cutters who will, thus, have no control over their own industry. I would appreciate it if the Minister of State could pass these comments on to the Minister.

Deputy Kathleen Lynch

I will do so.

Air Pollution

Senator John Whelan

I wish to raise with the Minister for the Environment, Community and Local Government a shocking matter of grave concern. In fact, it is the most serious matter that has ever come to my attention. I am not raising it lightly and it is causing me serious distress and anxiety. I ask the Minister to immediately call to task the Environmental Protection Agency over its lax oversight and light touch regulation of the ongoing and long-running unlicensed, unregulated, potentially harmful and hazardous open-vent emissions from the Enva waste oil recycling plant in Portlaoise. This is happening despite a litany of public complaints dating back over 15 years.

I have irrefutable, irrevocable, empirical, documented and scientifically established evidence that this plant, which processes 20,000 tonnes of waste oil annually, is pumping hazardous and harmful emissions into the atmosphere in direct and total breach of its licence and regulations. I am absolutely certain that the Environmental Protection Agency is privy to this situation and aware of it. In fact, it is colluding with the company in what is a cover-up of what in some instances are carcinogenic emissions going into the atmosphere and wastewater in the vicinity.

People in the Portlaoise area, including residents and workers in nearby plants, are unnecessarily being exposed to hazardous emissions. They should not have to be in this position. If we have a watchdog we should be able to rely on it. What is the point in having a watchdog if it does not bark, much less bite? I believe it is the corporate culture of the EPA to work hand in hand with corporate elements and industry rather than putting the public interest and public health first and foremost.

A litany of documentation proves a series of non-compliance. The people who have come forward have been fobbed off and categorised as cranks, while a blind eye has been turned to what is going on. This is an Erin Brockovich scenario where people are living in silent fear and do not know what to do. It is our duty and responsibility as public representatives to ensure this is not allowed to continue further.

I have documentary proof that the harmful and hazardous emissions, some of which are carcinogens, from the Enva Ireland plant in Portlaoise measure up to 32 times and in some instances up to 1,000 times more than the accepted levels as set down by the Environmental Protection Agency and other authorities. This matter was brought to my attention in the past two months. I have gone to lengths to verify this information and ensure it stands up. I have a litany of paperwork and documentation, including letters from Irish Rail management at the sleeper factory in Portlaoise. They wrote on behalf of the workers to Enva and the EPA imploring them to do something because the workers were repeatedly complaining of nausea and headaches. I hope that is the full extent of the problem being created by these harmful emissions because chemicals such as benzene are being pumped into the sky within 100 m of homes where people are living, including elderly people and young children. These open-vent emissions should be brought to a halt immediately. I am calling on Enva to clean up its act and on the EPA to do its job. This is another example of the watchdog falling asleep at the wheel. We have seen it in financial services and the charities sector and now we have it in the environmental sector. The EPA should do its job and protect the public health and the public interest.

Deputy Kathleen Lynch

I am taking this Adjournment matter on behalf of the Minister for the Environment, Community and Local Government, Deputy Phil Hogan. I thank the Senator for raising this issue.

Under section 60(3) of the Waste Management Act 1996, the Minister for the Environment, Community and Local Government is precluded from exercising any power or control over the performance by the Environmental Protection Agency or, in particular circumstances, a local authority of a statutory function vested in them, including enforcement functions. Issues concerning the enforcement of waste management legislation are a matter for the appropriate regulatory authority and, therefore, should be pursued with the Environmental Protection Agency or the relevant local authority, as appropriate.

The treatment and management of waste material is subject to a registration and permit system by local authorities or licensing by the Environmental Protection Agency, as appropriate. The particular facility is licensed by the EPA, as the Senator said. The primary purpose of the licensing, permit and registration scheme is to facilitate appropriate controls on waste facilities and activities to ensure good and consistent waste management practice and the implementation of high standards of environmental protection.

The role of the Department of the Environment, Community and Local Government is to provide a comprehensive legislative and waste policy framework through which the enforcement authorities operate. The Government's waste policy, A Resource Opportunity - Waste Management Policy in Ireland, published in July 2012 sets out the actions through which Ireland will make the further progress necessary to become a recycling society with a clear focus on resource efficiencies, the virtual elimination of land-filling and a rigorous enforcement regime.

The Minister and the Department are working to implement in full the objectives set out in the policy. In this regard, the policy document contains a commitment to complete a review of the respective regulatory and enforcement roles of the Environmental Protection Agency through its office of environmental enforcement and local authorities. In early 2013 the Department of the Environment, Community and Local Government established a group to carry out the review through examining current enforcement structures, identifying the existing strengths and weaknesses and making recommendations for the future. The group is comprised of representatives from local authorities, the regional waste management offices, the Environmental Protection Agency, the national transfrontier shipment office, the national waste collection permit office and An Garda Síochána. The group has made recommendations and these are currently being considered by the County and City Managers Association and the Department.

Further to the obvious concerns of the Senator, it is always in the best interests not only of the agency but also the people it serves that when a complaint like this comes to their attention, it does not simply act on it but is open about its findings.

Senator John Whelan

I respect that the Minister of State is replying on behalf of the Minister for the Environment, Community and Local Government, Deputy Phil Hogan, but my fears are not in any way allayed. I accept that the EPA is an independent regulatory authority. I am saying it is not doing its job. Are we now saying there is no ministerial or Government oversight of this agency or authority? The agency is turning a blind eye to what is going on in Portlaoise. Why has the EPA not taken any action and allowed Enva to continue to release unlicensed, hazardous and harmful emissions from the plant? I assure the Minister of State that I appreciate her response, but I will be taking this further. I will be calling on the Minister to conduct an inquiry into the matter and to bring in the director general of the EPA to be held to account. What is unfolding in Portlaoise is not acceptable and must be brought to a halt. People's concerns are genuine and they must be listened to. This has been going on for the past 15 years and it must be brought to a halt now.

Deputy Kathleen Lynch

The Department of the Environment, Community and Local Government established a group to carry out a review by examining current enforcement structures. As I have pointed out, that group is comprised of a wide variety of representative groups. The group has made recommendations and these are being considered by the County and City Managers Association and the Department.

I take on board what the Senator has said. I repeat my view that when there is a complaint and when there are clearly concerns about any issue they must be addressed. We do not know whether the EPA has carried out an investigation. It may well have done so. In the event that we do not know, we should know. Certainly, the people most directly affected should know and the agency should be more transparent about it. After all, if people have concerns about where and how they live, it is a serious matter.

Maternity Benefit

Senator Colm Burke

I raise this issue in respect of someone who is self-employed and who claimed for maternity benefit only to find that a set of rules applies to her which seriously affected her. The set of rules seems be different depending on what time of the year the baby is born. If the baby is born on 31 December then there is clear evidence that she comes within the qualifying criteria because the turnover in the business and the income will clearly show that she qualifies for maternity benefit. However, if the baby is born on 1 January, it appears she must submit an estimate of her income for the following four months. If a woman is in a business or self-employed there are times in the year where income is at a lower level than later in the year, as occurred in this case. The income for the first four months of the year is often at a low level because the turnover is not there at that stage. In May, June, July and August there is a higher turnover for the person who is able to take her income accordingly.

In this case the person has been told that she is not entitled to claim maternity benefit. She can claim it, however, once she goes back to work and she produces the figures in January 2015. Clearly, they will show that she was within the qualifying criteria for maternity benefit but only at that stage will the maternity benefit be paid. This is altogether unfair for someone who is self-employed or who runs a small business. The woman concerned must bring in someone to cover while she is out when the baby is being born and for several weeks thereafter. She must pay for that person. Therefore, she has no income and is seriously disadvantaged. How was the policy that applies devised? Why has the policy not taken into account the seasonal nature of the work of many people who are self-employed or the seasonal nature of income? That does not appear to have been taken into account under the current regulations and I call on the matter to be reviewed.

Deputy Kathleen Lynch

In a peculiar way this has something to do with me in respect of the equality area. However, it is a social protection matter and I am taking it on behalf of the Minister for Social Protection, Deputy Joan Burton.

Maternity benefit is a payment made for 26 weeks to employed and self-employed pregnant women who satisfy certain PRSI contribution conditions on their insurance record to obviate the need for them to work pre- and post-delivery of their baby.

The original scheme was introduced in 1970 and was extended to include self-employed mothers with effect from June 1997. This year, it is estimated that there will be a weekly average of 22,000 recipients of maternity benefit at a cost of €263.5 million. The main provisions relating to maternity benefit are contained in the Maternity Protection Acts 1994 and 2004, chapter 9 of Part II of Social Welfare (Consolidation) Act 2005 and chapter 2 of Part II of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007, as amended.

To qualify for maternity benefit as a self-employed person a woman must be in insurable self-employment. This means she must have sufficient earnings in the year of her confinement to be liable to pay income tax and PRSI. The current threshold for payment of income tax and PRSI is €5,000 per annum. In addition to being in insurable self-employment the woman must also satisfy one of a number of PRSI contribution conditions. She must either have 52 qualifying PRSI contributions paid in the relevant tax year or have 52 qualifying contributions paid in the tax year prior to the relevant tax year or have 52 qualifying contributions paid in the tax year following the relevant tax year. It is not a requirement that this three-year period be the three years immediately preceding confinement.

Self-employment contributions, Class S PRSI, are not awarded for any particular year until all liabilities for that year are paid. It is incorrect to state that benefit is not paid to a self-employed woman where her child is born within the first six months of the year. I accept the Senator did not make such a statement. Where a woman has recently set up as a self-employed person or historically has earnings from self-employment below the €5,000 threshold, it may not be possible for her to qualify for payment until such time as her reckonable income and Class S liability for the year in question can be confirmed. In such instances, the Department can review the insurable status of the woman after she files her tax return to the Office of the Revenue Commissioners for the year in question.

In cases where the Department finds that a self-employed customer has a record of earnings in excess of €5,000 in previous years and has an expected due date early in the tax year, that is, within the first 16 weeks, her earnings in the previous year, if greater than €5,000, can be used as confirmation of her insurable status. All applications for maternity benefit from self-employed women are processed on a case by case basis and every effort is made to qualify the customer for payment, where possible, and in accordance with legislative provisions. The Minister for Social Protection is, therefore, satisfied that current procedures in relation to the processing of maternity benefit claims in respect of self-employed women are fair and appropriate. I accept, however, that the Senator did not claim that the procedures are unfair or inappropriate. I hope the element that applies in respect of the previous year's income and returns for a woman whose due date is within the first 16 weeks addresses the issue raised.

Senator Colm Burke

The position the Minister of State outlined is not factual. I telephoned the Department about this issue when the decision was made in the case I raised. Officials informed me that they cannot take into account income from the previous year in making their assessment. The reply provided by the Minister of State does not correspond to the details provided in the letter I received from the woman in question, who is a constituent of the Minister of State. Officials clearly set out in writing that the applicant must provide proof of income for the year in which the baby is born. The problem in this case is that the woman in question cannot have income from 2013 taken into account, which is extremely frustrating. Although she meets the qualifying criteria for the previous two years, she was asked to provide evidence of income for the first 16 weeks of 2014. When she provided an honest answer she was informed she did not meet the qualifying criteria for 2014 and nothing further could be done until January 2015, at which point she can make a full tax return for 2014.

Deputy Kathleen Lynch

The response I provided was supplied by the Department of Social Protection and cleared by the Minister, as is the norm. I suggest, therefore, that the Senator show a copy of the Minister's response to the official in question. Perhaps it is an issue of interpretation. The Minister clearly views the issue in the manner set out in the reply.

The Seanad adjourned at 2.05 p.m. until 2.30 p.m. on Tuesday, 15 April 2014.