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Seanad Éireann debate -
Thursday, 28 Sep 2017

Vol. 253 No. 6

Commencement Matters

Courts Service

I thank the Cathaoirleach for selecting this matter. In an interview on RTE recently the new Chief Justice acknowledged a basic problem in the justice system, namely, the cost of engaging in litigation in certain cases was beyond the resources of many. There is little point in having a good courts system if a great many people find it difficult, if not impossible, to access it. That is true both for citizens and small businesses. The 2016 District Court rules which I downloaded yesterday indicate that it costs approximately €3,000 to hire a solicitor specialising in the area of intellectual property, while it costs approximately €1,000 to hire a barrister. Therefore, it would cost a total of €4,000 to take to court an infringement claim for €1,500.

The Minister of State will note that it involves a disproportionate cost for many small businesses to bring actions under these circumstances. Taking the figures I have given at face value, does the Minister of State consider that this situation is acceptable or should something be done to resolve this?

This issue has been kicked between Departments for the past two years. It is clearly a justice issue and one for the Minister for Justice and Equality. If we want to be a country that encourages people to be entrepreneurial and to start their own businesses, they must have access to the courts system.

There is an EU ruling on this area. Ireland is in breach of an EU ruling to allow a small business person to take a claim to our courts and to represent themselves. Failing our allowing a small business person to represent themselves, we should provide them with free legal aid, but it would be much more cost-effective to allow small business persons to represent themselves in our courts system. It is within the remit of the Department of Justice and Equality to allow this. This issue has been dodged for two years. I am seeking action today rather than platitudes. Urgent action needs to be taken if we are to encourage the development of an entrepreneurial society. We need to give our small businesses the supports they need as well as access to the courts system.

On behalf of the Minister for Justice and Equality, I thank the Senator for raising this matter. The Minister appreciates the Senator's interest in this subject and apologises for not being able to be here due to a commitment in Dublin Castle.

First, on behalf of the Minister, it is not accepted that the State is in breach of EU law in regard to the matter the Senator has raised. Council Directive No. 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights has been transposed into lrish law by the European Communities (Enforcement of Intellectual Property Rights) Regulations 2006, Sl 360 of 2006. Proceedings may be brought in the District Court for damages for breach of copyright where a claim falls within that court's threshold, which is a maximum of €15,000, and legal costs recoverable in the District Court are fixed by a scale in the District Court rules, which measures the costs in proportion to the value of the claim.

By contrast with remedies under EU law such as those falling within the European small claims procedure, the directive on enforcement of intellectual property rights does not mandate that remedies relating to intellectual property claims under the national law of a member state be the subject of a small claims procedure, nor does it mandate that corporations be entitled to represent themselves when bringing an intellectual property claim before the courts.

In so far as self-representation is concerned, this has been the subject of a detailed report in March 2016 of the Company Law Review Group, a statutory advisory expert body that advises the Minister for Business, Enterprise and Innovation on the review and development of company law in Ireland. According to the report, the review group remains to be convinced of the need for a radical overhaul of the law in this area. Although it remains sympathetic to the plight of the many companies that fell victim to the collapse of the property market and recognises that in the absence of available funding a number of companies have been unable to have their objections to summary judgment heard, the review group recognises that the courts retain the discretion to hear from non-lawyers where justice requires and are best placed to determine whether justice so requires in the case of companies which are party to court proceedings. In particular, the review group does not recommend that legislation should introduce a blanket permission to companies to be represented by their shareholders, officers or others, or a general entitlement to so act where they are in financial difficulty.

The review group observes that the general rule against pro se representation of companies in court is well-established in Ireland and almost universally followed in other jurisdictions. There is no suggestion that the Irish approach is significantly out of line with the approach in most other jurisdictions. While the strict application of the rule may on occasion lead to apparent or real hardship, such consequences can be considered the quid pro quo for the concession of separate legal personality. As Ó Dálaigh CJ stated in Battle v. Irish Art Promotion Centre Ltd. in 1968, the creation of the company is the act of its subscribers. The subscribers, in discarding their own personae for the persona of the company, doubtless did so for the advantages which incorporation offers to traders. In seeking incorporation, they thereby lose their legal right of audience which they would have as individuals, but the choice has been their own.

I hope that clarifies the matter for the Senator.

I ask the Senator to be brief in his supplementary question. I read remarks made by the new Chief Justice to the effect that the courts should be more easily accessible and available. A small courts system might resolve the Senator's issue, although I should not be commenting on it, but it is an interesting point.

I appreciate the Cathaoirleach's comments which are constructive. I do not want to have a go at the Minister of State, Deputy English, as I understand his position, having been in a similar position previously when I have delivered a script. I appreciate he is representing the Minister for Justice and Equality.

I wish to correct what he said. EU law demands that we must either let companies represent themselves or increase the costs that are recoverable, or give legal aid. That is quite clear. The Minister spoke about the review. The Copyright Review Committee put forward sensible proposals in line with our EU partners. For example, in the Netherlands, companies can bring claims of less than €24,000 without a lawyer, in Germany, they can bring claims of less than €5,000, in England, there is no limit, in Sweden, no lawyer is required, and in Scotland, they are planning to introduce measures with respect to intellectual property, IP, rights through the small claims court, a system on which the Chairman has just commented.

The response the Minister of State has given is contradictory to the view the Taoiseach gave seven years ago when he raised the same issue regarding enforced representation with the then Minister, Mary Coughlan, and that was questioned with respect to item 213 of 2010.

I ask the Minister of State to ask for the Department to correspond with me in a factual manner. There are a number of inaccuracies in the reply I was given. The way the system is operating protects large businesses and gives no support to small businesses, with the effect that the only people making money out of this are solicitors and barristers. If small business people want to take a claim, they will be at a loss. Most of the time they cannot afford it, so no claim is taken. If we want to encourage people to set up small businesses, we must allow them access to the courts and at the very least they should be allowed to represent themselves. I find such onerous costs of up to €4,000 for a claim of only €1,500 unacceptable. The script that was delivered today was quite insulting both to this House and to myself.

The Minister of State has already delivered a script. It might make sense if the Minister for Justice and Equality or his staff contacted the Senator directly. The Minister of State was obviously given a script. I would also say that we should not shoot the messenger.

I acknowledge that.

It is okay, a Chathaoirligh. I can take plenty of bullets. As this is not my line Department, I do not have all the details of the case, but I would seriously doubt that the reply is factually wrong. Generally, Departments are quite good when it comes to factual information. I have no problem in consulting the Minister on this matter and I will ask him to engage with and to write to the Senator on this matter.

I want to make it clear that I have a similar view to that of the Cathaoirleach on this issue. It is one that could be examined. The Chief Justice made those comments and, clearly, there is the independence of the courts to make judgments in these cases. There is more to this than merely the Department giving a factual position on the matter. It is an area of interest to myself, given my previous role in the Department with responsibility for enterprise. I agree with the Senator that some companies, when it comes to intellectual property, can face great difficulty. We must always try to help them as best we possibly can, but there is more than one way of addressing that.

On the factual matter, I cannot put my hand on heart and say I am absolutely right in what I have given the Senator, but I would be very surprised if there are any factual errors in the reply from the Department. I will get the Minister to write to the Senator on that as well.

We cannot advance the matter any more today but the Minister of State might forewarn the Minister for Justice and Equality that Senator Humphreys seems to be coming well armed on this issue.

Departmental Properties

I wish to raise the issue of the Central Mental Hospital in Dundrum in Dublin 16. I first raised this issue with the former Minister of State, Deputy Helen McEntee, in the context of a wider debate on mental health and before she moved on from Department of Health. I raise it this morning for a more parochial reason, namely, that there is considerable concern in the local area about the future not only of the hospital and the activities within it but the site on which it is located. The Central Mental Hospital has been located in Dundrum for more than 150 years. It sits on a 34-acre site with an immediate local population of just over 12,500 people. I am aware that it is in the ownership of the Office of Public Works.

We have a number of questions relating to the future of the hospital and what will happen. Those questions relate to the timing of the departure. The hospital and its activities are due to move to St. Ita's Hospital in Portrane in north county Dublin, however, the dates for an expected move have shifted a number of times due to various planning concerns and concerns over construction times, so could the Minister of State elaborate on when the hospital is due to move or give us an earlier estimation if possible?

When the hospital does move, that leaves this 34-acre site in the middle of a very populous area up for grabs. The Minister of State is substituting for the Minister of State, Deputy Jim Daly, this morning but I know it is of particular interest to the Department of Housing, Planning, Community and Local Government. What is the future for this large site in the heart of peri-urban and suburban Dublin? First and foremost, the site, which is covered by my former stamping ground of Dún Laoghaire-Rathdown County Council, is zoned for institutional use but there is an allowance for an element of residential use. There were a number of local protests during the summer from a certain fringe group that wanted the entire site to be converted to social housing - estimated at up to 1,200 units. I would imagine that this would be quite large and go against the whole idea of balanced housing strategy but I would like to hear the Minister of State's personal insight if that was possible.

The future of the hospital has been up for grabs. We heard at one stage that it was a possible site for a foreign country wanting to host its ambassador's residence. We have heard that it might revert to the Irish Prison Service or stay within the HSE but, ultimately, what is needed with a large site in the middle of a well-populated area is that it opens up to the community. For over 150 years, it has been closed off to the community. Very impressive large granite walls are all most people know. I have contacted the powers that be to request a tour. It was very common under the Eastern Health Board but it has not been done recently in terms of reaching out to the community. We know about the patients who are resident in that hospital and we know a lot about the crimes they committed in the past but going forward, this is an opportunity to open it up to the community and develop it as a central part of Dundrum. A lot of people are looking to re-imagine Dundrum and we want people to know that Dundrum is far more than a shopping centre.

I thank Senator Richmond for raising this issue and apologise for the fact that the Minister of State, Deputy Jim Daly, could not be here to take it because, as the Senator knows, he is interested in this following on from the work of the previous Minister of State, Deputy McEntee. The development of all aspects of mental health, including the national forensic mental health service delivered by the Central Mental Hospital, remains a priority for the Government. Opened in 1850, the Central Mental Hospital was the one of the world's first facilities to balance the needs of a therapeutic care environment in a secure setting. Although currently in use, it has been obvious for some time that this Victorian building is not suitable for 21st-century mental health care. Therefore, in accordance with the Government's commitment to implement A Vision for Change, we prioritised this year significant capital funding to provide a modern forensic mental health complex at St. Ita's Hospital in Portrane. The new facilities recently commenced construction and are due to become operational in 2020. That is the most up-to-date position.

The Central Mental Hospital admits patients from both the prison service and mental health approved centres. In order to meet increasing demands, a unit within the hospital has been refurbished to provide an additional ten beds for those referred primarily under section 21(2) of the Mental Health Act. The HSE is currently in discussions with nursing unions via the Workplace Relations Commission regarding opening this unit as quickly as possible. Managing the competing priorities of all those who have been assessed as requiring admission is being done on the basis of assessed clinical need and is monitored on a weekly basis by the Central Mental Hospital. In addition, the national forensic mental health service provides prison in-reach clinics at Cloverhill, Mountjoy and the Dóchas Centre along with Wheatfield, Midlands, Portlaoise, Castlerea and Arbour Hill prisons.

Following the signing of a contract in June 2017, construction of the new 170-bed national forensic mental health complex started at Portrane. The new national centre will provide psychiatric care in a modern and high-quality facility that rivals the best abroad. The new 120-bed national forensic mental health hospital at Portrane will replace the existing 93 beds at the Central Mental Hospital and will also provide a new ten-bed forensic unit for children and adolescents and a new ten-bed unit for mental health intellectual disability. In addition, the new complex will include a new 30-bed intensive care rehabilitation unit, the first of its kind in the country. Such a facility has long been called for and will help relieve pressures both on the main forensic hospital and on the prison system by enabling greater diversion of low-level offenders with mental health issues away from the justice system to appropriate mental health care. In common with the recognised excellence of the Central Mental Hospital, the new complex will augment the concept of recovery in a modern and clinical setting.

The disposal or otherwise of the site of the Central Mental Hospital in Dundrum cannot proceed until such time as the hospital is vacated following the completion of the new national forensic mental health service facilities at Portrane. However, I think it makes total sense, as Senator Richmond noted, for us to have this discussion and make plans for the future because 2020 is not that far away. As the Department responsible for planning, that is something on which we would be happy to engage with the Senator, no doubt through his local authority. We recognise that the Central Mental Hospital is part of the State property portfolio under the Office of Public Works, which is a State Agency of the Department of Public Expenditure and Reform. It would make total sense to look at this site and, as the Senator rightly notes, involve the community in that conversation, including the needs of the Dundrum area and how they can be serviced.

Regarding housing, as the Department responsible for housing and planning, we are under a lot of pressure to deliver housing in key areas like Dublin city and the surrounding areas. We would be interested in looking at that site but delivering a development of 1,200 social housing units anywhere is not in our plans. We are very clear on this. While we are trying to tackle the housing crisis and deliver social and private housing, we do not believe the development of large-scale social housing on one site is the way to solve this. Naturally, in those decisions, one looks at the entire area and sees what the percentages are. In respect of sites that are State-owned, we are looking at mixed developments and having a mixture of social, affordable and private housing in different percentages and other services. It strikes me that this is a conversation that must be held locally and the Senator is right to approach it from a community point of view in terms of what is needed in Dundrum. That might involve some residential development but that decision would generally be up to the local authorities. In March 2017, we looked at all State-owned sites throughout the country that could be used for land. I do not think this site was included on that for housing but we have 800 sites throughout the country that we are looking at and we will bring forward plans on those sites that are suitable for housing. It could be looked at in that context. The OPW would be the main body that would own the site.

Senator Richmond might revisit the matter in the spring.

I thank the Minister of State and commend him on his work. I asked two or three specific questions and he provided good answers to them for which I am very grateful. I ask him to pass on my regards to the Minister of State, Deputy Jim Daly, who I know is in lovely Stillorgan this morning so he cannot be here. I appreciate the engagement.

Solar Energy Guidelines

I raised this matter on 15 November 2016. The need for solar farms to have planning guidelines is an important issue in so many locations throughout Ireland and it affects most local authorities. It is becoming very important because we have had 225 planning applications for solar farms throughout Ireland in the past 24 months. This issue needs to be dealt with and is one of the core issues relating to our renewable energy policy. We have targets we hope to meet by 2020. Renewable energy is a very important part if we are to reach those targets and solar farms will play a role in that. How big the role will be will be determined in many ways by Government policy. In particular, I note the White Paper on energy that was published a few years ago.

We need national Government to move into the frame and put planning guidelines in place so that communities, developers and local authorities have the ability to plan around the national guidelines. There is frustration among local authorities, developers, communities and even An Bord Pleanála about the lack of that national framework. We have seen some decisions that have been made in the past few months. An Bord Pleanála famously stated at the start of the year that it was extremely worried about the sudden wave of applications coming forward without national guidelines. We have seen decisions by local authorities, one only a few weeks ago, where planning permission was refused because of the lack of national guidelines. Everybody is saying that there is a lack of such guidelines. Communities, developers and local authorities would welcome them. It is a very important sector but it needs to be regulated.

In so many ways we are over-regulated but in this area we are looking for a Department to bring forward guidelines.

To me, they are essential if we are to have proper, sustainable development. The real guideline is that a developer sees a generation station or substation in a location and knows that it is the location where it would be more financially beneficial for him or her to locate a solar farm. It has nothing to do with planning guidelines, quality of soil or the level of the land. These are big issues that we need to consider. A total of 225 planning applications went through the system without these guidelines and there are more coming. There is a wave of them coming. Until there is clarity on tariffs, we will continue to have a wave. That is an issue the Minister, Deputy Denis Naughten, needs to clarify at some stage.

I raised this issue on 15 November and have seen very little progress since. I raised it with the Minister on 7 December and have seen very little progress since. I am raising it again now, nearly one year later. In many ways, this is the time we need planning guidelines to be put in place in order that the local authorities which have to make decisions will have the ability to make fair decisions. At present, it is a case of one decision at a time. That is not good for renewables policy, planners or residents.

I thank the Senator for raising this issue. A year goes by very quickly. I am glad that I am here in a different building but in the same office to discuss this issue.

There are no specific planning guidelines in place for solar farms and, as matters stand, I have no proposal to bring forward such guidelines. We discussed the issue before and, if need be, I will not hesitate to act in this area.

Under the Planning and Development Act 2000, as amended, each planning authority’s development plan is required to set out an overall strategy for the proper planning and sustainable development of the area concerned. Section 10 of the Act requires a development plan to include, among other things, objectives for the provision or facilitation of the provision of infrastructure, including energy facilities and infrastructure. Many local authorities have developed renewable energy strategies for their areas in this context, rightly so, and I encourage others to do the same. Proposals for individual solar farm developments are also subject to the statutory requirements of the Planning and Development Act 2000, as amended, in the same manner as other proposed developments. Planning applications are required to be submitted to the relevant local planning authority with a right of appeal to An Bord Pleanála.

In making decisions on planning applications planning authorities and the board must consider the proper planning and sustainable development of the area, having regard to the provisions of the development plan, submissions or observations received and relevant ministerial or Government policies, including relevant guidelines issued by my Department. Planning authorities must then make their own decision, based on the specific merits, or otherwise, of individual planning applications. I am satisfied that the planning code is sufficiently robust to facilitate the assessment of individual planning permission applications for solar farm developments. I am very clear that the lack of national guidelines is not a reason for refusing a solar farm application. We can have discussions about other reasons, but the lack of national planning guidelines is not an appropriate reason for refusal.

The matter will be kept under review in consultation with my colleague, the Minister for Communications, Climate Action and Environment and his Department, the lead Department on renewable energy policy, in the context of the Government’s White Paper on Energy Policy which was published in December 2015, the development of a renewable electricity policy and development framework, REPDF, and the launching of a new subsidy support scheme for renewable electricity by the Department which was recently published for public consultation and is expected to be in place in 2018. It will greatly help the conversation we are having. The subsidy support scheme is required in order to assist in meeting our renewable energy targets, as well as to facilitate greater diversity of supply and foster community engagement in renewable energy projects.

The energy White Paper sets out a vision to accelerate the development and diversification of renewable energy in Ireland. A draft REPDF has been formulated, aimed at optimising the opportunities for producing electricity from a variety of renewable energy sources in projects of significant scale on land. It will be subject to further public consultation prior to its adoption. A Programme for a Partnership Government contains a commitment to facilitate the development of solar energy projects in Ireland that builds on the energy White Paper and recognises that solar energy also has the potential to provide a community dividend, thereby further enhancing citizen participation in Ireland's energy future. Consequently, solar technology such as solar farms is one of the technologies being considered in the context of the new subsidy support scheme for renewable electricity generation being developed by the Minister’s Department. In this connection, it is recognised that the new subsidy support scheme is required in order for the development of solar farms to become economically viable, which is not the case in most circumstances. The new subsidy support scheme will require Government approval and state-aid clearance from the European Commission before it can come into operation.

I have no proposals to bring forward specific planning guidelines for solar farms. However, the matter will be kept under review. Certainly, on foot of the work being done by the Minister, it is something on which we can follow through, if need be. What the Senator raised is often cited locally as an issue, but it is not a reason. Planners in local authorities, if they have the co-operation of those authorities and their members, are well capable of making these decisions to allow us to move forward in this area. Naturally, if we have to act following the work of the Minister, we will do so.

That was a very comprehensive response. I am sure the Senator is very enlightened as a result.

I am very much enlightened but very disappointed at the same time. It is an issue whereby if the planning guidelines are put in place, the horse will have bolted at that stage. That is realistically what we are facing. The real guidelines will apply when the actual tariffs are set by the Minister, Deputy Denis Naughten, as they will determine what will be built. Developments will be built according to what is financially viable. If the tariff is too high, every development might be built, but if it is too low, we will have none built. In many ways, what could actually emerge is that the planning guidelines will be associated with the actual tariff announced by the Minister after the consultation process he announced last month. I will still be pressing for planning guidelines which have to be produced. Having developments of the scale in question, on 200-acre sites and with no national guidelines, does not make sense.

I support and encourage solar farm developments. I hope that, through the discussion and consultation process, they will be deemed to be worthwhile and merit the support of the Government. To me, that makes sense. If we can make it economically viable, it will make even more sense. One can still farm the land in most cases and put it to use. In some cases there is a lack of information. Therefore, we need to build trust in the system. If planning guidelines are required at a later stage to achieve this, we will act. I wish to be very clear, however, that the lack of national guidelines is not a reason for refusal.

As somebody who nearly 30 years ago came out in favour of wind energy projects, I note that there is still a lot of turbulence about where wind farms should be located, connections and power lines. I am sure it is an ongoing debate. I thank the Minister of State and the Senator.

Sitting suspended at 11.10 a.m. and resumed at 11.30 a.m.
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