Select Committee on Finance and General Affairs debate -
Thursday, 9 Nov 1995

SECTION 44.

Mr. Sargent

I move amendment No. 177j:

In page 64, subsection (1) (a), lines 17 and 18, to delete "a person appointed for that purpose by the Agency." and substitute "an appeal board appointed by the elected members of the local authority in the area concerned. The same elected members may qualify as appeal board members.".

This amendment seeks to give to elected members of local authorities some of the powers about which the Minister has spoken. This comes from people involved in local authorities, both as officials and as elected members, who have often commented to me on how little input elected members have into even the notification of problems or the suggestion of better procedures. This is just an attempt to give some power to members of local authorities in matters for which they have ultimate responsibility.

Mr. Howlin

I cannot accept the amendment as it is not logical and would not be proper in some circumstances. On the notion that the appeals board would be the elected members of the local authority, what would happen if the application to be determined was a local authority application? It would be totally improper.

The core feature of the Bill, which we have mentioned several times since Second Stage, is that granting a waste licence would be a matter for the Environmental Protection Agency, the competent authority to decide an appropriate and proper appeals board. It would be quite improper for it to consist of local authority members.

Amendment, by leave, withdrawn.

Mr. Howlin

Before the break, Deputy Dempsey asked me to indicate the amendments which I would be willing to accept. I would be willing to accept the following amendments up to section 50: amendment No. 177k, which we are about to deal with, and amendments Nos. 1771 and 178. There are, of course, also four other ministerial amendments up to section 50: amendments Nos. 180, 182, 187 and 188.

Mr. Sargent

I move amendment No. 177k:

In page 64, subsection (4) (b), line 39, to delete "may" and substitute "shall".

Amendment agreed to.

Mr. Sargent

I move amendment No. 1771:

In page 64, subsection (4) (b), line 39, to delete "or any".

Amendment agreed to.

Mr. Sargent

I move amendment No. 177m:

In page 64, subsection (4) (b), between lines 40 and 41, to insert the following:

"(i) the categories of persons who can conduct an oral hearing;".

Mr. Howlin

I am sure the Deputy will settle for two out of three.

Mr. Sargent

There are more than three amendments in my name.

This amendment is linked to some extent with the others but I would regard acceptance of this as a halfway house perhaps between my original amendment and amendment No. 177j. It is important that people know the categories of persons who can conduct an oral hearing if only to give an assurance of it being an expert agency. Are we talking about particular qualifications within that expert agency or is it anybody employed by the agency?

Mr. Howlin

As I indicated on many occasions, the whole thrust is that the agency, not the Minister or his Department, is the competent authority. I do not think I should set down in regulation who is the appropriate competent person to hold an oral hearing. It is for the expert body, which we established under the 1992 Act, to make that determination and I do not intend to infringe on its legitimate discretion in making that determination as it would be improper.

Amendment, by leave, withdrawn.

Section 44, as amended, agreed to.

SECTION 45.

Acting Chairman

Amendment No. 178. Amendment No. 179 is related. Amendments Nos. 178 and 179 may be discussed together by agreement. Is that agreed? Agreed.

Miss Quill

I move amendment No. 178:

In page 65, subsection (1), line 12, to delete "may" and substitute "shall".

The Minister indicated he would accept amendment No. 178 and I am grateful to him.

Amendment No. 179 relates to licences and the condition under which they are granted. A licence should not be open-ended in terms of time. This is a fundamental belief of mine. People enter into contracts with the best intentions, track records and convincing arguments which allow those who grant licences to do so but a change can occur. This is an issue which we are dealing with at another forum where marriage contracts, for example, which are entered into with enormous enthusiasm and zeal, cannot always be complied with in every detail.

The inclusion of a timespan would be a good provision. It may not necessarily be the three year one which I recommend but I ask the Minister to take the principle on board. It is a good discipline for an applicant, who has held a licence for a given period of time, to have to reapply for that licence. It puts an obligation on the applicant to be attentive to the conditions of the licence so that when the time comes for reapplication they must render an account of their stewardship. It is a good and practical provision.

I ask the Minister to accept the principle that it is not wise or sensible to give an open-ended licence. We all have experience of where matters have fallen down. I will not recount them now because I have made my point. I ask the Minister to accept the amendment No. 179.

Mr. Howlin

I have considered amendment No. 179, as I have all the admitted amendments. I understand what the Deputy intends but on balance, I am persuaded that it would not be appropriate to have a fixed duration as the Deputy implies. There is a clear in-built mechanism for review, if somebody is in breach of the conditions, for example, it might be important to hold the licence intact in all its obligations and change the conditions and even change its right to dispose of waste — but hold on to his responsibilities under the other elements of the licence. That is a better way of dealing with it than allowing somebody, by either terminating a licence or having a fixed term licence, to walk away from his responsibilities.

My advice is that it is up to the agency to review a licence at any time. They can and will, in fact, do that periodically but a particular licence should be dovetailed to a particular activity or function. A particular function might have, by definition, a fixed timeframe which might, for example, be one and a half years before the end of the life of a particular landfill, or ten years to do a particular set function. I want the agency to have the discretion in terms of the duration rather than have an overriding three-year licensing mechanism which would not suit every activity and occasion.

Mr. Dempsey

Will the Minister clarify that last point? Is he saying that without the insertion of amendment No. 179 the agency will have the freedom to specify a period of time for which the licence will operate, that they can use different timeframes?

Mr. Howlin

Absolutely. I am trying to give the greatest possible flexibility. It can issue a licence for a fixed period to be determined rather than a national fixed period which would not be appropriate to every occasion.

It might be possible, for example, in a set of circumstances for the licence to exist even if the operator, or the personnel in the operation, changes. It might be in the interests of the operation to continue under the licensing regime in place. The conditions would change but the overall licence would remain intact.

Amendment agreed to.

Amendment No. 179 not moved.

Mr. Sargent

I move amendment No. 179a:

In page 62, subsection (2), line 18, to delete "may" and substitute "shall".

Given my previous success, I take it the Minister does not propose to accept this amendment?

Mr. Howlin

No.

Mr. Sargent

The Bill states: "regulations under this section may make provision for all or any of the following". There is already an element of choice and appropriateness in that term. Is there a reason for including the word "may"preceding that term?

Mr. Howlin

I considered this matter closely and I want to be able to discern between the conditions outlined in paragraphs (a) to (n). Discretion is provided to make provision "for all or any" under this section. I am not sure that the term "shall make provision for all or any" makes sense. I intend doing so, but I want the discretion to not necessarily include all.

Amendment, by leave, withdrawn.

Mr. Sargent

I move amendment No. 179b.:

In page 66, subsection (2) (h), line 4, after "inspection" to insert "or loan".

This amendment has been tabled with the best of intentions.

Mr. Howlin

The road to heaven is paved with them. The Minister should not merely require that the Agency publish "or make available for purchase by members of the public of a copy of an application for the grant of a licence" but should include some facility whereby people may borrow the licence application and consider it closely. Such licence applications are generally quite large. It is a great deal to ask that a concerned community group hire a mini bus to travel to the agency's office to consider the licence application. Is my request an impossible one? If it is possible to accede to it could arrangements be made in that regard? I welcome that a copy of the application will be made available to the public. It is often the case with planning applications, etc., that one cannot obtain copies of the information required.

This is a question of practicality. As the Deputy is aware, the application could be voluminous. If ten people arrive on the same day to borrow the application, presumably ten copies would have to be made. That would be unreasonable and impractical. The Bill states that anyone can have a copy once they pay the copying fee.

Mr. Sargent

That could be expensive.

Mr. Howlin

Should the agency pay for everyone's copy of the application? Members of the public can inspect it on site, free of charge. If they wish to take it away they pay for a copy.

Mr. Dempsey

This point is a bone of contention in IPC applications, etc., because they are voluminous. Would it be possible to specify in the regulations that a further copy be made? In the case of planning applications, three copies are always made. Perhaps, some arrangement could be made for people to gain access to these copies, study them and copy the information they require at the offices of the agency or the local authority? A major problem exists in relation to these documents because they must be obtained and studied by environmental groups, local community groups, etc. The facilities provided by the agency for representatives of these groups — to study such documents during the course of perhaps a ten day period — are inadequate. This is a general point but one which concerns all of us.

Mr. Howlin

I intend it to be available. The regulations will require that a copy be made available for inspection. Anyone may visit the agency's offices and inspect the detail of the application. A further requirement is included that people may have a full copy of the document, by paying the photocopying cost, in order that it may be studied by experts. It would be slightly onerous to turn the agency into a lending library and anyone could borrow whatever documents they wished. That would be an impossible situation.

Mr. Sargent

We are all constrained by the practicalities of what is proposed here. I do not believe anyone is attempting to be fanciful about it. As Deputy Dempsey stated, if an extra copy were provided it could be made available for borrowing.

Mr. Howlin

If that copy is removed, it will not be available to the next person who requires it.

Mr. Sargent

The loan period does not have to be a long one. People could borrow it for a week.

Mr. Howlin

That might be the very week someone wants to inspect it.

Mr. Sargent

I meant to say it could be borrowed for one day. I am merely discussing the practicalities of people——

Mr. Howlin

I am not happy with the notion that anyone might arrive at the agency's offices and discover that the documents required are not available because they are on loan. That would represent a large loophole in the system.

Mr. Sargent

I understand that the agency is not a library. However, libraries operate reference and loan sections. Perhaps a loan copy and reference copy might be made available?

Mr. Dempsey

It is generally the case that specific interest groups are formed in response to planning applications, etc. Perhaps the Minister could make a requirement that one other copy be made available to An Taisce or some other recognised body?

Mr. Howlin

Where do we end and where do we begin?

Mr. Dempsey

Where do we end and begin in relation to An Bord Pleanála where An Taisce has a right of observation?

Mr. Howlin

I am approaching this issue from the perspective that every citizen has the right to inspect this document. I am not sure an agency or organisation such as An Taisce should be given such a privileged position. Many of these applications will be of particularly local interest and should be available to any citizen who wishes to inspect them. The procedure is very straightforward and democratic. People can visit the agency's offices and read the documents for the entire day. If people want a copy of a document, they simply pay to have it photo-copied. Complications should not be introduced to this very straightforward procedure.

Amendment, by leave, withdrawn.

Mr. Howlin

I move amendment No. 180:

In page 66, subsection (2) (j), line 19, to delete "waste".

This is a technical amendment to achieve consistency of drafting terminology between paragraphs (a) and (j) of section 45. It will not affect the meaning in any way.

Mr. Sargent

Section 46 (2) refers to a waste licence.

Acting Chairman

We are not dealing with section 46.

Mr. Sargent

The term "waste" is being deleted from section 45 (2) (j) but the term "waste licence" is included in section 46 (2).

Acting Chairman

If the Deputy does not object, we will deal with amendment No. 180 before addressing that issue.

Mr. Sargent

I raised the point because the Minister mentioned consistency in his explanation of the amendment. I am not making an issue of this matter.

Mr. Howlin

I was referring to consistency within section 45.

Amendment agreed to.

Section 45, as amended, agreed to.