Heritage Bill 2016: Committee Stage (Resumed)

The principal purpose of the Bill is to amend the Heritage Act 1995 on foot of the report of the critical review of the Heritage Council, to make provision for the regulation of cutting or burning of vegetation and to provide for clarification of the powers of authorised officers under the Wildlife Acts. The Bill also makes provision to amend the Canals Act 1986 to provide enabling provisions in primary legislation for by-laws for the regulation of the use of the canals and other canal property.

At our meeting on 25 April, the committee completed its consideration of amendments Nos. 1 to 19, inclusive. Today we will continue with our consideration of amendments.

I again welcome the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, and her officials from the Department.

I remind members to turn off their mobile phones as they interfere with the broadcasting of the meeting. In light of the progress the select committee made in its consideration on 25 April, my aim is that the committee will conclude its consideration of Committee Stage of the Bill during this afternoon's meeting. Is that agreed? Agreed.

I refer members to the grouping of amendments.

SECTION 7

Amendments Nos. 20 to 23, inclusive, and 33 are related and may be discussed together.

I move amendment No. 20:

In page 12, to delete lines 8 to 13 and substitute the following:

“(2) Notwithstanding section 40 of the Act of 1976, the Minister may make regulations to provide for derogations from the restrictions of section 40(1) of the Act of 1976 in order to permit the management of vegetation growing in any hedge or ditch for the purpose of ensuring public health and safety pursuant to section 70 of the Roads Act 1993.

(3) Regulations made under subsection 2 shall specify—

(a) the species of wild flora which are not subject to the derogations,

(b) the circumstances of risk and the circumstances of time and place under which such derogations may be granted,

(c) the authority empowered to declare that the required circumstances obtain and which can impose conditions on the management of vegetation under the derogation,

(d) the controls which will be put in place to ensure compliance with the conditions.”.

We are moving from the mountaintops down to our fields and the hedgerows between them which are of critical importance in the protection of the country's biodiversity particularly for birdlife. I will not go through all the various reports. I reiterate the point made in our earlier Committee Stage discussion. We are in an ecological crisis with the loss of biodiversity across the country and across the world which requires urgent action. In effect maintaining the status quo is not a viable option; we need to engage in a range of new initiatives to protect wildlife which is being lost at a frightening rate. I wish we had a Bill before us where all the stakeholders were brought in to consider how we develop our hedgerows, how we make them safe definitely for road users, but also how we use them in a way that promotes good farming practice that protects wildlife, improves tourism amenities and provides structural supports around a field.

Instead we have this very simple and confusing freeing up of the regulations to allow for cutting on the basis of a judgment of someone who owns a field. We think it will add to further confusion and further threat and stress to Irish wildlife, particularly certain bird species which are still nesting in the hedges in August. We do not believe that the provision that someone cutting the hedgerow would see if there is a nest would work. We do not believe the National Parks and Wildlife Service has the resources to police this in any effective way. The approach is completely wrong. It should look at a new management strategy for hedgerows rather than weakening existing regulations and adding further confusion to what is a very uncertain system of protecting that ecosystem.

Our amendment is simple in that it replaces the key section in page 12 of the Bill with allowance for regulations giving the local authorities real control. They would decide if a hedge needed to be cut back for road-safety reasons and would set out the regulations and approach, rather than having a free-for-all which is the direction the Bill proposes. I ask the Minister to change tack even at this late stage. We need to be proactive in protecting wildlife, not loosening regulations and allowing for more widespread destruction of habitat, which is the last thing we need to be doing.

Gabhaim buíochas leis an gCathaoirleach as an deis labhairt faoin rud seo. We are probably entering a period where awareness is increasing radically throughout society with regard to what is actually happening to the ecosystem which we all share. Programmes such as "Blue Planet" have really brought to people's attention that the range of species throughout the world is collapsing at a radical rate. We even see that in our country. The Minister has mentioned that the objective of the State is the protection of our natural heritage. However, the protection of our national heritage has not been successful so far. It is not just me who is saying so. With every generation the range of species is collapsing and is in freefall. There is no doubt that we are on the wrong course currently. We are not passive observers; the Government has a role in this.

By reducing the habitat in which species live throughout their lifecycle, we then reduce the opportunity for that species to live. People have major problems with the Government giving the go-ahead for the physical habitat to be reduced at key periods for these different species.

I understand the logic to part of the objective the Government is trying to achieve and I grant that the Government is not doing this out of recklessness. The Government has regard to road safety concerns and other Deputies will also have road safety issues. About three months after the Bill had been published I contacted the Road Safety Authority and asked if the Department had contacted it with regard to this road safety issue and was told that had not happened. I then contacted the Department of Transport, Tourism and Sport - one would figure that the Department of Transport, Tourism and Sport would be partners on this matter - but it had not been contacted about the Bill. In other words the drafting of the Bill as published had not been done in partnership with the Road Safety Authority, whatever about any contact after that.

I believe we can achieve both objectives - the objective of road safety and the objective of ensuring we do not reduce the habitat in which species already under threat exist. One way to do that is to balance the two objectives, which is what I have sought to do in amendment No. 21. I have sought to balance the agricultural needs and the safety needs with the environmental needs.

I know that some Members who have tabled amendments, including Deputy Maureen O'Sullivan, cannot attend this particular meeting. Would it be possible for amendment No. 23 to be discussed on Report Stage?

I take this opportunity to fundamentally disagree with the two previous speakers. I was brought up on a farm and was brought up to love animals and love nature, as I do. No one can ever say otherwise.

I was brought up not to leave animals go hungry and to treat them right at all times.

Some Deputies are complaining that roadside hedges should not be cut because to do so would destroy habitats for nesting birds and so on. I do not believe that birds are so foolish as to make their nests on the side of a busy road or any road. They have the entire countryside. I will not say anything about when hedges inside roadside ditches should be cut. I have no view on that and have nothing against any proposal on it, but I must make it known that there are narrow roads along which hedges are not being cut. People cannot walk or cycle safely. Lives are being put at risk. Roadside hedges should be kept cut all year round for the safety of people using those roads. Look at what the prohibition is doing. It is moving people out past the yellow line on roads that are only 3 m wide. A number of pedestrians and cyclists are being killed each year. This is why. That is the truth. The other side of the issue is that, because bushes and briars are out on the road, drains are getting blocked and water is flowing down and tearing roads.

I have nothing against birds or the like. As I stated at our previous meeting, much more damage is being done to ground-nesting birds by animals and birds of prey, for example, magpies, mink and foxes, yet no word at all is being said by members about that or how we might protect those birds. There is a type of hawk that cleans out every nest. If, like me, members are interested in and serious about nature, including birds, then that is the route we should be taking. We could save many more birds. To claim that our roadside hedges should not be cut is preposterous, though. I cannot agree with it. These roads are a part of the infrastructure people need to access their homes, and it is the last inch that makes the difference when an accident happens and someone is killed or seriously hurt while out walking or cycling on a road. People in cars cannot see as far around bends and accidents occur. Many farmers cannot get up and down their roads now. I know of milk lorries and school buses that are having severe difficulties getting around. That is not fair. Those people are paying their motor and property taxes, most have their own water supplies and they are costing no one anything. They only want a road to their doors. Each and every one of them is entitled to as good a road as people in Dublin 4 have.

Regarding gorse burning, I agree with the extra month that is being added in March. In some cases, the North allows burning up to 15 April. Ours is a small country and we should have the same facility. If gorse is not burned for one or two years, which has happened previously due to bad weather lasting until February, someone somewhere will set it alight anyway. I am not saying that farmers do that. In fact, I am trying to support farmers and to have payments returned to them that were wrongfully taken because their lands were burned by fires that started elsewhere. Neither God nor man could have stopped those fires. These farmers rang the fire brigade and put their own lives in danger, but they have been left without any payment or the greater part of their payments even though they did not start the fires. When there is too much gorse, it cannot be controlled.

I plead with members not to undermine what is being done by the Minister. I support these two aspects of the Bill. I would like my amendment on cutting roadside hedges all year round to be agreed. Deputy Ryan referred to how local authorities had the facility to cut hedges all year round where they deemed them unsafe. I was a member of Kerry County Council for a long time and I highlighted the situation on many roads, but for one reason or another, those dangerous hedges were never cut. The council barely cut a few junctions. It may be doing so again shortly. The dangerous spots on narrow roads are left alone. The council has the facility to do this, but I cannot explain why it does not. It does not happen.

That is why I am supporting the Bill's measures. I would like members to agree my amendment, but I am a realist, and half a loaf is better than no bread.

It might be useful to respond amendment by amendment. I will then address the specific points raised by the Deputies. I thank them for their contributions.

I will not accept amendment No. 20, as there already exist provisions under section 70 of the Roads Act 1993 requiring landowners to manage their hedgerows in the interests of road safety. Local authorities also have power under section 70 to serve notices in writing on landowners requiring the cutting or trimming of hedges if they are considering a road safety hazard. As these provisions under the Act apply for 12 months of the year, I see no reason for the amendment.

This morning, I launched the county biodiversity plans. In 2018, there will be €250,000 available for this scheme, amounting to €2.5 million over ten years. It will continue for the duration of the national plan.

I am not weakening regulations on hedges. For the first time, we will have regulations as well as National Parks and Wildlife Service, NPWS, guidelines. This is not a free-for-all. On the contrary, it brings order, regulation and guidelines.

I will not accept amendment No. 21, as the proposals in section 7(2) provide for managed hedge cutting to be allowed on roadsides only under strict criteria during August to help ensure that issues such as overgrown hedges impacting on roads can be tackled. Regarding the establishment of a task force, as part of the review of section 40 of the 1976 Act, a consultation process was initiated in order to gauge options on that section.

(Interruptions).

I am sorry, but does someone have a phone turned on?

I do not have my phone on.

A phone is interfering with the system.

(Interruptions).

Shall I continue?

During this process, my Department received almost 190 submissions ranging from detailed ones to individual brief points of view. Stakeholder groups such as BirdWatch Ireland, An Taisce, the IFA, the ICMSA, Departments and local authorities were among those to respond. The working group established within my Department considered the issues raised in the submissions and its own experience of the implementation of section 40.

To clarify for Deputy Tóibín, there is no question of reducing hedges in August. This provision only allows for the trimming of road-facing hedges. I should also correct the Deputy on another point.

Not only was the Department of Transport, Tourism and Sport contacted, it agreed with section 8. I am not sure from where the Deputy got that information, but it is incorrect.

I got it from the Department.

The information is incorrect.

On amendment No. 22 in the name of Deputy Danny Healy-Rae, I appreciate and welcome his common sense on this issue on an overall basis. There are provisions under section 70 of the Roads Act 1993 which oblige landowners to ensure a tree, shrub, hedge or other vegetation on their land is not a hazard to road safety. In addition, there is a provision which allows a local authority to serve notice on landowners to undertake works such as hedge cutting and clearance for safety purposes along public roads. These provisions apply all year round. Accordingly, I cannot consider the Deputy's amendment to be necessary, but I understand his concern about road safety and the difficulties faced by farmers. However, I am happy that the scenario he describes is covered by section 8.

Amendment No. 23 was tabled by Deputy Maureen O'Sullivan, but she is not present.

Amendment No. 33 in the name of Deputy Peadar Tóibín contains three proposals, each of which I will deal with separately. He proposes to insert a provision into section 40(2) of the Local Government (Planning and Development) Act 1976 to make the notice made by a local authority to a landowner on the cutting of hedges under the Roads Act an exempted activity. Section 8 of the Bill provides for the harmonisation of the Wildlife Acts with the Roads Acts in that the provision contained in section 70(2) of the Roads Act 1993 which obliges landowners to ensure a tree, shrub, hedge or other vegetation on their land is not a hazard to road safety, as I mentioned, will be an exempted activity, as will the provision in section 70(2) which allows a local authority to serve notices on landowners to undertake works such as hedge cutting and clearance for safety purposes along public roads. I must, therefore, oppose that part of the amendment as it is unnecessary.

The second part of amendment No. 33 provides that public bodies would have to notify me, as Minister, of all exempted works undertaken during the period from March to August. I do not consider that it should be mandatory for public bodies to notify me of all such works as that would be an onerous task which could delay the carrying out of urgent work on health and safety grounds. I have existing powers under section 40(3) of the Act to request details of such works from public bodies with a statement of the public health and safety factors involved. These powers have been used on several occasions in recent years. For that reason, I believe my existing powers are sufficient and request that the committee reject the amendment.

The third part of the amendment relates to a proposed amendment to the Roads Act 1993 relating to the placement of structures which may interfere with public roads. These are matters outside the remit of the Bill and more appropriate to my colleague, the Minister for Transport, Tourism and Sport, Deputy Shane Ross. Accordingly, it is not possible for me to accept the amendment.

There is a fundamental difference. No one disagrees that we must be attentive to the need for road safety. In that regard there are existing provisions in the Roads Act that allow us to attend to situations which involve a safety problem. The provisions in amendments Nos. 20, 23 and 27 that we have put forward aim to give clarity to and strengthen such powers and make it clear that it is the responsibility of the local authority to address a road safety issue or direct a landowner to do so. That is needed as part of a wider range of measures aimed at good hedgerow management. In many instances, people do not cut hedgerows during the preferred period from September to March when there is a need for their proper management in that way. However, central to the legislation brought forward by the Minister is that landowners are left to make that decision and decide whether to cut hedges in August in a way that we believe will be deeply damaging to wildlife and impossible to police in comparison with the approach we suggest, where it would properly be done by the local authority. The Minister stated this would only apply to roadside hedges. They do not make up a minute fraction of hedgerows, as was suggested in previous discussions on the Bill but rather I understand, approximately 19%, according to the latest or best hedgerow studies. We are talking about giving landowners carte blanche to decide if one fifth of hedgerows should be cut. It would be fanciful for us to believe they will be able to assess ecological risk in dealing with issues such as whether there is a nest in a hedgerow.

The Bill will lead to a loosening of regulations when we should be tightening and clarifying the existing regulations which are not being applied. If road safety is the real issue, as it is in some instances, we want there to be the cutting of hedgerows but it to be done under the control of local authorities and the National Parks and Wildlife Service, rather than handing control over to landowners such that it would be impossible to police, which is what the Minister is doing.

Road safety was mentioned by another Deputy who lives in a rural area. I also live down a very narrow country road. Two years ago, with others, I was involved in a very serious collision on that road in which a car hit us full-on at speed. Our car was shunted back ten feet, leaving it stuck in the ditch. All those in the car were injured, with some of the injuries lasting for approximately six months. I am acutely aware of the necessity for road safety on minor roads. The individual who was driving the other car was still over the limit having been drinking the previous night. The policing of roads to prevent drink-driving is one of the key tools we can use to ensure roads will be safer for everybody.

I am glad that Deputy Danny Healy-Rae admitted that there is a tool to fix some of the problems we face. He has rightly stated section 70 is not used enough, but that issue could be resolved and we could use the section to achieve his objectives in that regard. Interestingly, in responding to his amendment the Minister stated it was unnecessary as we already had section 70 to resolve the question with which we were dealing. She is using my argument against the Deputy, but it does not apply solely to certain months but to the entire year, including the months about which we are speaking. If it is valid in April and May, it is valid in March and August. It cannot be invalid in those months if it is valid in others. It is a matter of achieving the objectives for farmers and road safety and this becoming the generation that will put a line under the retreat of nature in our society, but that will not be the case if we eradicate habitats for animals in certain months of the year.

I was very interested in what Deputy Peadar Tóibín stated about the RSA having no input into the Bill. Is that what he stated?

That is correct.

That body stated it wanted to increase the penalties for a person driving on a rural road having consumed a pint and a half of beer. It is the same crowd that is supposed to be interested in safety. It is the same group that is pulling in new lorries on the side of the road and taking them to test centres, even though they are only a few months old. That is what the RSA is doing. It has no interest at all in what is happening on the roads in terms of overgrowth and hedges and people having their eyes picked out or being killed. As I stated, although local authorities may have the power, as I believe they have, to cut dangerous hedges that pose a health and safety risk, it has not been happening in Kerry or any neighbouring county in which I travel, including west and north west Cork and parts of Limerick.

People's lives are important and if someone is killed, there is no return. Many people are killed while walking and cycling along our roads. Considerable pressure is being applied by cyclists to have their safety improved. To be honest, they are being pushed out among cars travelling behind them. If two cars meet, cyclists are shoved into a ditch because the drivers are coming around a turn or the like and cannot see in time that another vehicle is coming. That is how accidents and fatalities happen.

It was not out of malice but for every good reason that I tabled my amendment on allowing roadside hedges to be cut all year round. It has not been happening. The Minister stated she was not in support of my amendment. It hurts me greatly that we cannot get my provision into this Bill, since we have been waiting for so long. I have been vocal on this issue since 2004. I had to fight to save my council seat because another councillor made a serious remark that I sought to get hedges cut because I wanted to get that work for myself. I had to fight like I had never fought before to hold my seat in that election. Nothing could have been further from the truth. I wanted to get hedges cut to allow school buses to bring children to schools. The hedge cutting tender process was open to everyone else as well and the hedges in question were miles away from me. It was in September 2004 and it cost me a great deal of money to save my seat. I paid people to help represent me, yet it was not them who helped but another poor, honest man who put the matter in perspective and allowed me to defend my seat rightfully. That is what I have gone through where cutting hedges is concerned. I almost lost my seat trying to get them cut.

This is a serious matter. I would have liked to succeed but I now realise that I will not. I do not have the support of this room. When the Bill returns to the Seanad, I am sure I will not have the support there either. As such, I will not press my amendment even though it breaks my heart. I honestly feel-----

I will ask the Deputy later whether he wants to press his amendment. If that is all right, I will give the final comment to the Minister.

All right, but before that will the Minister consider the merit in what I said about local authorities? They are not using their facility to cut dangerous hedges. What they have stated several times is that it is landowners’ responsibility to cut hedges and that they do not have the funding to cut. I do not know whether the Minister can make funding available but funding is probably the real reason dangerous hedges have not been cut. I hope that the Minister’s Department or another Department will make funding available to local authorities to cut these hedges, which are not being cut year after year and cause injuries and fatalities on our roads.

We have spurred into the territory of section 8 in this debate. Landowners must have clarity and we cannot allow a situation to stand in which a person complying with an obligation under the Roads Act is in contravention of the Wildlife Act. That is not right or fair.

The Roads Act is absolutely clear. A landowner is obliged to deal with vegetation that is a hazard. He or she has no option, in fact. We cannot have a situation where they are forbidden to do so under the wildlife legislation.

I wish to say to Deputy Eamon Ryan that this is not carte blanche legislation and it is not a loosening of regulation. I will have regulations governing hedgerow management in August, for the first time. I noted his suggestion that farmers are not good custodians of nature. I vehemently disagree with him because I think farmers are the primary custodians of nature.

I can tell Deputy Tóibín that there has been no retreat from nature in this legislation. I am putting almost €300 million into our heritage over the next ten years. That is a statement of advancing the cause of nature and biodiversity and is not one of retreat.

In response to Deputy Danny Healy-Rae, this Bill ultimately is about safety on the road, security for users and the husbandry of roadside hedgerows. I will engage with my colleague, the Minister for Housing, Planning and Local Government on the matter. I disagree with Deputy Danny Healy-Rae about the drink driving limits but agree with his comments about cyclists and pedestrians.

Can I comment?

Yes. Deputy Danny Healy-Rae indicated earlier and I suggest we allow him to make a brief comment first.

The Minister has said that landowners must pay to cut roadside hedges. I disagree with her view on that aspect, as I have done with many other people before now. Let us discuss what happens if a landowner tries to do anything outside his ditch but on the side of the road. He is not even allowed to erect a small sign that directs people to his business, property or whatever because the land outside his property is deemed to be council property. I disagree with the Minister and strongly believe that local authorities should cut roadside hedges. If anyone dares to work outside of their ditch on the side of a public road, he or she will be brought to task very quickly by the local authority. However, at the same time the local authority will not cut the hedge that is offending people who use the road.

I wish to say to the Minister that we do not need to engage in political insults here as we debate. I do not believe that I have said at any stage that farmers were not custodians of nature, which she has cited to me as a quote. I do not think it makes her argument to play party politics. We are here to tease out the details of the legislation and I argue that political insults will not help. I believe that farmers are and should be the custodians of nature. I have the highest regard and respect for them. I want to help and support them in that task but this legislation is unhelpful.

I want to discuss the key point and, to a certain extent, there is confusion. The Minister has said that nothing in the Wildlife Acts should restrict the ability of the Roads Act to apply, and that we have to apply road safety. I agree but I am uncertain about amending the Wildlife Act to exclude the month of August from the provisions of section 40. Why has the month of August been selected? As the Minister has said that the Roads Act must apply, why not carry that through to all of the legislation? What is the rationale for omitting the month of August alone? Where is the impetus for doing so? What is the strategic reason for same given the fact that we have section 70 of the Roads Act 1993, as she has said, which compels people to consider road safety when managing the landscape?

I understand that many of the birds have left by August. Compliance with regulations should never involve the use of heavy flails. This will mean that any birds' nests that might still be active in August would not be at risk. There is another important fact that must be remembered, and it is a fact that can be lost sometimes. It is an offence under the Wildlife Acts, under section 22, to wilfully destroy, injure or mutilate the eggs or nests of any bird species. I wish to advise that there will be regulations and we will have a public consultation process, including consultation with the relevant stakeholders, when finalising any regulations that we come to.

It is important that we tease out some points.

Would the Minister agree that rather than legislating and then having public consultation and research, we could start by conducting detailed research on when exactly is the nesting season for Irish birds within hedgerows? My understanding is there is good data for the UK but the Irish environment is, by nature, different. We do not have much information on when birds leave nests or when they are nesting. How can the Minister argue that she has introduce this to allow widespread hedge-cutting in August and not to have the Wildlife Act applied because birds are not nesting in that period when the analysis from Birdwatch Ireland and others is that birds such as the yellowhammer species, which is under real threat, are in nests in August? How will we ensure we protect that one species, given the more lax regulations that the Minister is introducing when we know those birds are nesting in August in Irish hedgerows?

I am sorry I was late coming in but I just want to make one comment. I was on Galway County Council for 12 years and every year we had a problem with trying to cut not so much the hedges but the verges, to make the roads safe. There was always a contradiction in that coming up to race week in Galway, they would cut all the roads leading in to the races which I would argue did not need to be cut at all but could not cut the grass along the local roads that I know about, which are dangerous where we have spent money on setting back boundaries.

It is important we realise that it is about safety on these narrow rural roads. It is not about cutting hedgerows as much as cutting the verges, which need to be done for safety. It is important we realise that in August, the bird nesting is complete and it can be done safely.

As Deputy Eamon Ryan and the Minister will agree, the best people to advise one about nature are the farmers because they need it more than anybody else. Consequently, by trusting the farmers, we are not running away from anything.

If we cannot cut the verges earlier we are spending a lot of money and letting grass grow up and people cannot see around the corners after setting back the boundaries. It is a contradiction if we cannot maintain them.

August has the lowest probability of impact on birds. It is the end of the growing season.

We have done the review. As I stated, this is a highly regulated managed two-year pilot period, the impact of which will be measured. Our experts will overview it. In August 2018, because of the snow, hedges will not have been cut for seven months. We need to bear that in mind as well. If one thinks about it, birds' nests will not be supported by this current year's growth because the nests are built in the spring when the current year's growth has not occurred.

Amendment put:
The Committee divided: Tá, 1; Níl, 6.

  • Tóibín, Peadar.

Níl

  • Burke, Peter.
  • Canney, Seán.
  • Collins, Michael.
  • Healy-Rae, Danny.
  • Madigan, Josepha.
  • Smyth, Niamh.
Amendment declared lost.

I move amendment No. 21:

In page 12, to delete lines 8 to 13 and substitute the following:

"(2) Notwithstanding section 40 of the Act of 1976, the Minister may make regulations to establish a taskforce to identify the most efficient agriculturally and environmentally sympathetic fashion in which to proceed in this area.".

Amendment put and declared lost.

Is Deputy Danny Healy-Rae moving amendment No. 22?

I would dearly love to do so, but I know that I do not have the support I need to have it passed here and that if it went to the Upper House, I certainly would not have the support I would need. For these reasons, I will not move the amendment. I hope that at a later time, when people see the sense in what is being proposed in the amendment, it will become a reality and that people will realise roadside hedges have to be cut all year round to ensure the safety of road users. I will certainly try to activate that ambition in the future.

Amendment No. 22 not moved.

Deputy Maureen O'Sullivan is not present to move amendment No. 23. I know that she may want to discuss it, but she can do so on Report Stage in the Dáil.

Amendment No. 23 not moved.
Question, "That section 7 stand part of the Bill," put and declared carried.
NEW SECTIONS

Amendments Nos. 24 to 28, inclusive, are related and may be discussed together. Amendment No. 28 is a logical alternative to amendment No 27.

I move amendment No. 24:

In page 12, between lines 22 and 23, to insert the following:

"Amendment of Act of 1976

8. The Act of 1976 is amended in section 40—

(a) by the substitution for subsection (2) of the following:

"(2) The Minister may, where no other satisfactory solution exists, derogate from the restrictions of section 40(1) of the Act of 1976 to permit the management of vegetation referred to in section 1(a) and (b) being carried out—

(a) in the interests of public health and safety,

(b) in the interests of air safety,

(c) to prevent serious damage to crops, livestock, forests, fisheries and water,

(d) for the protection of flora and fauna;

subject to regulations which must specify;

(i) the species of wild flora and fauna which are subject to the derogations;

(ii) the conditions of risk and the circumstances of time and place under which such derogations may be granted;

(iii) the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom; and

(iv) the controls which will be carried out,

(b) subsection 3 is deleted.".".

Amendment No. 24 deals with the destruction and burning of vegetation and cultivated lands, as set out on page 12 of the Bill. The purpose is to give the Minister the ability, where there is no other satisfactory solution, to deviate from the restrictions in section 40(1) of the 1976 Act to permit the management of vegetation referred to in section 1(a) or (b). The amendment focuses on the interests of public health and safety and air safety to prevent serious damage to crops, livestock, forests, fisheries and water to ensure the protection of flora and fauna. It states the regulations must specify the species of wild flora and fauna that are subject to derogations, the conditions of risk and the circumstances of time and place under which derogations may be granted and the authority empowered to declare that the required conditions obtain and to decide what means and arrangements of methods may be used. The amendment looks to empower the Minister in this area.

Amendment No. 25 looks at the birds directive. We had this discussion at an earlier stage, but the point is that the amendment would make sure the birds directive was front and centre of the Bill and that the Minister would also be able to protect historical, ecological and archaeological landscapes.

They are the objectives of the two amendments.

I thank the Deputy, but I will not accept the amendment. He is proposing to delete section 40(2) and replace it with new provisions. The existing section 40(2) sets out the exemptions referred to in section 40(1) prohibiting the cutting, grubbing, burning or destruction of vegetation from 1 March to 31 August. The exemptions include works carried out in the ordinary course of agricultural work undertaken by Departments and public bodies for public health and safety reasons, clearance work involving road or other construction projects and fisheries development works undertaken by Inland Fisheries Ireland. Therefore, the amendment proposed by the Deputy would be highly prescriptive and involve me in making regulations under a number of headings, including, curiously, for air safety reasons, to allow exemptions under section 40(1).

The exemption provisions in the existing section 40(2) are considered reasonable and I do not see any need for a change in the exemptions. As the Deputy is aware, an amendment to section 40(2) of the 1976 Act is proposed in section 8 of the Bill and will be discussed later in the debate. For the reasons I have given, I ask the committee to reject amendment No. 24.

Would Deputy Peadar Tóibín like to address amendment No. 25?

I thought we were discussing amendments Nos. 24 and 25 together.

Is the Deputy happy that he has covered both amendments?

I call Deputy Eamon Ryan to speak to amendment No. 27.

This amendment goes to the heart of my argument. What is the problem the Minister is seeking to address in this section and the Bill as a whole? That is what I am trying to tease out. The Minister can correct me if I am wrong in my understanding that her intention is to address road safety issues. This is a proposal to improve road safety. I do not understand. I do not believe the Minister would say this is a proposal to improve the protection of wildlife. It is being introduced to address road safety issues. The argument being made in amendment No. 27 is that if that is the Minister's intention, the best approach is to ensure the local authority can act to direct a landowner to address a road safety issue or take action itself. Section 70(2)(b) of the Roads Act 1993 allows a local authority to issue a direction to a landowner. Section 70(9) of the same Act allows a local authority to take action. I mention this as a means of outlining the purpose of the amendment. I return to the question that is at the centre of my argument: why are we giving people the freehold ability to cut hedgerows in August? It is being done to address a road safety issue when it could be addressed by the local authority directing the landowner to take action or taking action itself in circumstances where there is a clear road safety issue. Why is the Minister undermining the provisions of the Wildlife Acts when other mechanisms are open to her to achieve the same effect?

In short, the Wildlife Acts allow councils to cut hedges, whereas the Roads Acts oblige landowners to do so for road safety reasons. In essence, section 8 is trying to harmonise the Wildlife Acts and the Roads Acts to eliminate the confusion that has been caused during the years on this issue. I have already addressed the issues related to hedgecutting in the month of August. I have explained the reasons and rationale for that decision. I do not propose to go into them again. It is important to say that under section 40 of the Wildlife Act 1976, as amended, hedgecutting cannot be engaged in by individual landowners during the closed season from March to the end of August. Section 8 of the Bill provides that works to be undertaken by landowners along public roads under section 70 of the Roads Act 1993 for safety purposes will be considered to be an exempted activity under section 40 of the 1976 Act, as amended. The Deputy's proposal would align the Wildlife Acts with a specific subsection of section 70 of the 1993 Act. If it were to be accepted, the Wildlife Acts would continue to contradict the remainder of section 70. That is really the reason for this provision. It is also important to note that it is being introduced on the advice of the Attorney General.

I am trying to understand what the Minister is saying. Why is she seeking to harmonise legislation and reduce confusion in August without applying the same harmonising provisions in March, April, May, June and July, as well as August? Why is there a specific need to harmonise in August and not in the other months?

It applies all year round. As I said, the proposal seeks to harmonise the provisions of section 40 of the Wildlife Act 1976, as amended, with the provisions of section 70 of the Roads Act 1993. It is not a freehold ability but regulation. I am accepting the strong advice of the Attorney General that this provision should be introduced.

Why are we amending the relevant provision in the Wildlife Acts to change the provisions that apply in August?

Section 8 will apply all year round.

Is the Attorney General saying we have to remove the provisions that apply in August-----

It is a policy decision.

Will the Minister expand on that? I know that we cannot obtain the advice of the Attorney General, but I do not quite understand. The Minister has said the advice of the Attorney General is that we need to harmonise the legislative provisions included in the Road Acts and the Wildlife Acts.

The idea that anyone would propose that the conflict between the Roads Acts and the Wildlife Acts should continue is preposterous. The advice the Attorney General has given is that they need to be aligned. That is why we are undertaking this measure.

To be clear, what is the policy imperative behind the change in the provisions that apply in the month of August? What is the policy objective in that regard?

We have already had a public consultation process. The nesting season now occurs earlier, as reflected in the Wildlife (Amendment) Act 2000 which provided for an earlier start to the closed season. That Act should also have provided for the closed season to end on 31 July in line with nesting patterns. As Deputies will be aware, August is a busy farming month. As many farmers harvest crops, spread soil nutrients and transport livestock in August, they need access to the roads. Therefore, the decision to allow them to cut hedges during August is a practical one from the perspective of the safety of road users. August is also the peak month for tourism, with many tourists travelling in cars on unfamiliar regional and secondary roads or walking on such roads. For road safety reasons, it is sensible to allow hedges to be cut during August. In recent years the unpredictable winter weather has typically resulted in the hedge cutting season being reduced by one third. The agricultural machinery involved in hedgerow trimming is very expensive. Many operators work long hours during the open season to ensure work is completed. August is a month during which we have between 12 and 14 hours of daylight. The amount of daylight continues to reduce when August is over. In the interests of the safety of machinery operators and motorists, hedge cutting should be allowed in the month of August. Fly-tipping which is a growing problem in the countryside is another issue that should be taken into account. Community groups that voluntarily clean roadside ditches have noticed that ditches which are regularly cut and maintained are less likely to be used as a dumping ground. The earlier opening of the hedge cutting season will facilitate earlier cutting and maintenance of hedges. In addition, the closed period should not apply where local authorities and landowners identify road safety issues such as the need to improve sight lines.

I worked in tourism for 15 years. I never met a tourist who did not like hedgerows and did not feel a slight sense of loss when we were taking them out. It seems from what the Minister has said that the main argument in favour of this measure is to facilitate contractors to get the work done. The Minister has mentioned that another of the reasons for making this change is the fact that the nesting season is starting earlier each year. Will she provide me with that analysis? Where can I find evidence of the change in nesting patterns? I would like to understand the logic behind the argument that this is a reason to allow hedgerows to be cut in the month of August.

Does Deputy Peadar Tóibín wish to make a final comment?

We are living in changing times with regard to the climate and the patterns of behaviour of various species. It is becoming increasingly difficult to define exactly the behavioural patterns of certain species. This year is an outlier because of the snow and the arrested growth in nature. Growth and nesting periods deviate radically from year to year. Fly-tipping is a national disaster. Anyone who lives in the countryside will agree that it has become radically polluted in recent times. This is not good for tourism or the ecosystem. The causes of fly-tipping include bin charges, the cost of recycling and our inability to provide for bottles to be returned in exchange for 10 cent a bottle. Reducing the functional habitat of animals is probably not one of the raft of positive actions could be taken to reduce the level of fly-tipping.

The reality is that the amount of hedge-cutting that is likely to take place in August is actually quite limited. This section limits it to roadside hedge-cutting but many fields do not come to the roadside. Any fields that do come to the roadside also have three sides of hedges that do not come to the roadside. In fact, on the narrow roads and especially on the boreens into houses, the tourists constantly complain about visibility, particularly those tourists who would normally drive on the opposite side of the roads. There are constant complaints about lack of visibility on rural roads over the summer and specifically in August when we get the most visitors. It is a problem. I do not see wholesale cutting of roadside hedges but to be able to do it without having to go through a very convoluted process of getting permission from the local authority in August is a proportionate proposal.

There is a need to look at what is causing the decrease in our bird population. It is a lot more complicated than the possibility of being able to cut a few hedges in August. There is another problem when verges overgrow with grass that technically one can cut anyway. The local authorities are highly adverse to doing even that, although we get major problems because of it.

I happened to be travelling on very narrow roads on Friday in a certain part of the world that does not have a lot of hedgerows but with very high walls along the narrow roads. I said to the driver to keep 1 m out from the cyclists, but if he had done so we would have been in the ditch on the other side of the road or would have knocked against the walls. It must be recognised that a lot of the boreens of rural Ireland - not the regional roads - are exceptionally narrow.

There are many heavy goods vehicles, milk trucks, timber trucks and every kind of vehicle going down very small roads. I have often travelled from Mallow to west Cork taking the byways and they are very twisted with a lot of hedges. It is fine until one comes around a corner and is up against a 40 ft articulated truck, whose driver might have seen one but one will not have seen the truck. If the car is driven by a tourist it is an absolutely extraordinary situation. I believe that what is proposed in the amendment is very proportionate and limited. It is much more limited than original proposals for the wholesale cutting of hedges by professional contractors in August. I believe this proposal is proportionate.

I promised Deputy Tóibín that he could make a brief comment.

As we are discussing the group of amendments Nos. 24 to 28, inclusive, together, Deputy Catherine Connolly has asked that we ensure amendment No. 28 is discussed on Report Stage.

Section 7 mainly deals with August provisions and section 8 provides for hazards all year round. As we have already discussed, these provisions detail the regulations for the trimming of the current year's growth. There is a balance of consideration here. I have been advised by the experts in the National Parks and Wildlife Service in this regard. The consultation has been public with 188 submissions received ranging from detailed submissions to individual brief points of view. Stakeholder groups such as BirdWatch Ireland, An Taisce, the Irish Farmers Association, the Irish Creamery Milk Suppliers Association, Departments and local authorities also made submissions. There were 102 submissions from members of the public, 44 submissions from representative bodies, 29 submissions from other Departments and local authorities, eight submissions from elected representatives and five submissions from businesses and consultancies.

Ireland has some 300,000 km of hedgerows. When we speak of roadside hedges as the subject of the provisions of this Bill, it is actually a fraction of the entirety of the total hedgerow resource we are so lucky to have. It is actually just 2%. I noted also the contributions from the other Deputies on this subject.

I ask that amendment No. 26 is discussed on Report Stage.

Are we discussing section 8? Perhaps the Minister will clarify a point I raised during my speech on Second Stage. Some persons came to me who believed this amendment would allow for wholesale cutting of hedges at any time of the year. I believed that all it did was provide for the existing section 70 of the Roads Act 1993, which allows - with the permission of the local authority - the trimming of hedges, the removal of trees that might fall and so on. Will the Minister confirm that section 8 in its present form does exactly that, no more and no less? Does it put back the status quo for whenever there is a need to cut a hedge for safety purposes at any time of the year - in the view of the local authority and not just in the farmer's view or the landholder's view - so that the local authority can give its permission or an order to do so?

I question the statistics just quoted by the Minister. I have been told, and I believe the research was done by the national hedgerow database, that 19% of randomly selected hedgerows were found to be roadside hedges, not 2%. Having spoken with people involved in the preservation of our hedgerow system, which is under threat for a variety of reasons, there is recognition that roadside hedgerows tend to be some of the most important. They are the oldest, they are the boundary hedges, they have the most diverse wildlife within them and they are the most sensitive to disruption. This is not an insignificant 2%. These most important hedges are, from 1 August, under attack regardless of whether the local authority gives a direction and just because somebody considers that it is so. This is not an insignificant change.

In reply to Deputy Ó Cuív on the advice of the Attorney General, as I have said previously, the Roads Act states that one must do something with a particular branch hanging out over the road because it is dangerous and could cause an accident. On the other hand the wildlife legislation states that if this is during the closed period, the hedge cannot be touched. Section 8 merely addresses the exceptional circumstance wherever it is hazardous and in order to ensure road safety. I am not talking about cutting back the entire hedge. It is about certain exceptional circumstances and cutting back that part of the hedge on the roadside that is a safety issue.

To be clear, is this just putting back in what was in the Roads Act 1993 to ensure that local authorities can give an order to remove these branches, or in the event of the landowner not doing it the local authority can do the removal and charge the landowner for doing it? Is it the case that it can only be done on the say-so of the local authority and not on the initiative of the landholder?

The landowner can also do it.

Would he or she have to get permission?

No, anyone can do it.

It is effectively a harmonisation of the Roads Act 1993 and the wildlife legislation because at the moment there is an anomaly between the two. We need to have the legislation aligned and this is why we are addressing it in this section.

Was there consultation with the Department of Transport, Tourism and Sport on this?

Yes. We mentioned some of this earlier on.

I am sorry, I was not here.

That is all right. I only said that to make Deputy Ó Cuív aware. In his absence, Deputy Tóibín raised the same issue. We have the full support of the Department of Transport, Tourism and Sport on section 8 of the Bill.

Deputy Eamon Ryan referred to statistics. If 19% of our hedgerows are roadside hedges, in August only the road-facing side of the hedge can be cut and this is one of the three surface areas of the hedge. I said 2% but to be precise it is probably more realistic to say 6.33% of the hedge area. That is my understanding of it. We can furnish the Deputy with this information if he wishes.

Where would the 6.5% figure come from?

It is 6.33%. That is our calculation, if 19% of hedgerows are roadside hedges.

Is it in the legislation that the top of the hedge cannot be cut or is it-----

No. The top of the hedge is not road-facing.

Only road-facing sides of the hedge can be addressed.

Correct. I may not have mentioned it, but I should stress that this is being done on a pilot basis. The provisions of the Bill are restrictive and would allow for regulated cutting, so this will apply in respect of one month only and will have a limited lifespan of two years. We will then be able to assess the situation.

From where did the 2% figure come?

I said 2%, but I should have said 6.33%.

The Minister is saying that the 6.33% figure would be the case if every roadside hedge was cut, but there are four hedges in a field with three sides to each hedge. As such, one twelfth of the hedges are road-facing. There are also fields that do not touch any roadside, so the figure drops further. When I was at school, one twelfth of 100% equated to approximately 8%. I don not believe it would be even that in this case, though. Where I live, unless the corners are very bad, it is normally the local authority that undertakes hedge cutting, so the figure is probably one tenth of that again. As such, fewer than 1% of hedges will be trimmed on the outside. What is more likely to happen is something that happens all of the time anyway. In the autumn, farmers trim 50 m on each side to allow for better access to fields for tractors and better visibility for road users.

This is the same issue that is being debated in the Road Traffic Bill, namely, human safety, and human safety has to trump all. Therefore, I will not press my amendment.

How stands amendment No. 24?

I will press it.

Amendment put and declared lost.

I move amendment No. 25:

In page 12, between lines 22 and 23, to insert the following:

“Amendment of Act of 1976

8. Section 40 of the Act of 1976, as amended by the Act of 2000, is amended--

(a) in subsection (1), by the insertion of the following new paragraphs after paragraph (b):

“(c) The Minister may make regulations to extend, in part or parts of the State, the period of protection referred to in paragraph (a) in order to protect species covered by Article 1 of the Birds Directive.

(d) The Minister may make regulations to protect individual hedgerows of archaeological, historical, ecological or landscape significance.”,

and

(b) in subsection (2)(c), by the insertion of the words “, or under notice from,” between “safety by” and “a Minister”.”.

Amendment put and declared lost.
Amendment No. 26 not moved.
SECTION 8

I move amendment no. 27:

In page 12, line 28, after “to” to insert “paragraph (2)(b) or subsection (9)”.

Amendment put and declared lost.

Amendment No. 28 is in the name of Deputy Catherine Connolly and she would like to discuss it. She will have that opportunity on Report Stage in the Dáil.

Amendment No. 28 not moved.
Question proposed: "That section 8 stand part of the Bill."

I will withdraw my opposition because I have been given a satisfactory explanation. As I indicated I would on Second Stage, I sought the clarification that the Minister has now given. Given that the Department of Transport, Tourism and Sport views this as a safety issue and the situation is reverting to the case under the 1993 Act in terms of safety, I will withdraw my opposition.

Question put:
The Committee divided: Tá, 6; Níl, 1.

  • Burke, Peter.
  • Canney, Seán.
  • Collins, Michael.
  • Healy-Rae, Danny.
  • Madigan, Josepha.
  • Ó Cuív, Éamon.

Níl

  • Tóibín, Peadar.
Question declared carried.
NEW SECTIONS
Amendment Nos. 29 and 30 not moved.

Amendment No. 31 has been ruled out of order.

The basis for the ruling would have been included in correspondence sent to the Deputy by the clerk to the committee.

Amendment No. 31 not moved.

I move amendment No. 32:

32. In page 12, between lines 29 and 30, to insert the following:

“9. (1) In exercising functions under this section and this Act the Minister shall have regard

to—

(a) the objectives and provisions of Council Directive 85/337/EEC of 27 June 1985 as amended,

(b) the objectives and provisions of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in particular but

not limited to Articles 6, 10 and 12 to 16,

(c) the objectives and provisions of Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds, in particular but not limited to Articles 1,

Article 4(4) and Articles 5 and 6,

(d) the objectives and provisions of Council Directive 2000/60/EC establishing a framework for the Community action in the field of water policy,

(e) the objectives and provisions of Directive 2007/60/EC on the assessment and management of flood risks,

(f) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the

environment,

(g) the objectives and obligations of the Convention on Biodiversity,

(h) the objectives and obligations of the Berne Convention on the Conservation of European Wildlife and Natural Habitats,

(i) the objectives and obligations of the Convention on the Conservation of Migratory Species of Wild Animals,

(j) the objectives and obligations of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

adopted in Aarhus, Denmark on 25 June 1998,

(k) the objectives and provisions of the All-Ireland Pollinator Plan,

(l) the objectives of Government policy set out in People, Place and Policy Growing Tourism to 2025,

(m) the objective and provisions of the Climate Action Low Carbon Development Act 2015 and any National Mitigation Plan and National Adaptation Plan under that

Act.

(2) The Department shall make available to the public and the Oireachtas information regarding compliance with these considerations.”.

Amendment No. 32 has already been discussed with amendment No. 29.

May I ask a question? Would I be right in thinking that in exercising any function the Minister has a legal obligation to have regard to every Council directive anyway? Therefore, as a Minister, she also has an obligation to-----

To which amendment is the Deputy referring?

Amendment No. 32.

That has already been discussed.

I am just looking for clarification on that point. Am I also right in thinking that in making any policy decision, the Minister has to have regard for all Government policies?

That is correct.

Therefore, this amendment is moot.

Amendment put and declared lost.

I move amendment No. 33:

33. In page 12, between lines 29 and 30, to insert the following:

“9. (1) Section 40(2) of the Act of 1976 is amended by inserting the following:

“(g) the removal or destruction of vegetation required by a notice served by a local authority under section 70 of the Roads Act 1993 (as amended).”.

(2) Section 40 of the Act of 1976 is amended by adding after subsection (2) the

following:

“(2A) Any activity undertaken under section 40(2), by a public authority or any activity authorised by them in the interests of public health and safety is required to be notified to the Minister by the public authority responsible for the execution or authorising of such works, and shall outline:

(a) the public health and/or safety concern or other rationale as to why the works need to be undertaken during the prohibited period together with supporting evidence in this regard; and

(b) how such works were strictly limited to those necessary, and were undertaken in a manner so as to limit the negative impacts on biodiversity where possible, or any issues in respect of such considerations.”.

(3) Section 70(1)(b) of the Roads Act 1993 is amended by inserting the following:

“(c)(i) where there is a risk to public health and safety from a structure on the land to the safe use of a public road or the maintenance of the public road, any party including a land owner or occupier of land, may apply to a local authority to serve a notice in writing in accordance with this section on the owner or occupier of any land on which the structure is situated to remove, modify or carry out specified works in relation to the structure within the period stated in the notice. The local authority shall consider the necessity of such works and determine whether to issue a notice accordingly. Such works shall be considered exempted for the purposes of section 40 of the Wildlife Act 1976 (as amended);

(ii) the local authority shall comply with all legislative obligations, screenings, assessments and notifications necessary to the making of any such a notice;

(iii) the notice shall contain details of—

(I) the precise location of the issue to be addressed,

(II) the precise nature of the issue to be addressed, and

(III) precisely what remedial work needs to be carried out;

(iv) where notification is during the closed period for hedge-cutting specified in section 40 of the Wildlife Act 1976 (as amended) detailed guidance on biodiversity considerations shall be included; and

(v) the local authority shall notify the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs, with responsibility for natural heritage of the making of any such notice, at the same time it notifies the land owner or occupier of the land.”.”.

Amendment No. 33 has already been discussed with amendment No. 20.

Amendment put and declared lost.
Question, "That section 9 stand part of the Bill.", put and agreed to.
Sections 10 and 11 agreed to.
Title agreed to.
Bill reported with amendments.

That completes the Committee Stage consideration of the Heritage Bill 2016. I thank the Minister and her officials for their assistance to the committee today.