Select Committee on Finance and General Affairs debate -
Thursday, 22 Feb 1996

SECTION 3.

Amendment No. 8 not moved.

Mr. N. Treacy

I move amendment No. 9:

In page 4, subsection (1) (b), line 41, after "kind" to insert "provided such buildings, structures, works or other property have been in use heretofore".

The purpose of the amendment is to ensure that the Office of Public Works will have the power and facility to proceed to demolish any building or structure which had been in use. In other words, people could not claim compensation for a building which was not in use for some purpose, be it residential, commercial or whatever, and it would not be necessary to demolish it if it had not been in use. Basically, the amendment seeks to clarify the situation.

Mr. Coveney

We were not sure of the purpose of the amendment but the Deputy has explained it. We need an unqualified power. It is conceivable that acceptance of the amendment's wording, "provided, such buildings, structures, works or other properties have been in use heretofore", could place an unacceptable restraint on the work of the Office of Public Works. To take an unrelated example, if we had to build a Garda station on a site on which there was a building or on which a building was being erected but had not been in use, we would need the unrestricted power to demolish it. This amendment would tie the hands of the commissioners for the future. I am sure the Deputy would not want that and that is why we cannot accept it.

Mr. N. Treacy

I am baffled by the Minister's response. He says the Office of Public Works want unqualified power. I was offering the Minister unqualified power in eight or nine amendments which have been voted down or withdrawn and he did not want to take it. Is there any other latent reason he might want this unqualified power?

Mr. Coveney

None whatever. The Office of Public Works operates under the normal planning laws so we do not have more powers than anybody else in relation to the requirement, for example, to apply for planning permission for demolition work. The wording the Deputy proposes could conceivably restrict the normal operation of the Office of Public Works where it had to demolish a building.

Mr. N. Treacy

There is no reason it should think of demolishing something which the Office of Public Works already started and were not allowed to complete?

Mr. Coveney

That is not in my mind.

Mr. N. Treacy

I hope not.

Mr. Coveney

Certainly not.

Mr. Browne (Wexford)

You would have to lie in front of the bulldozers.

Chairman

The Deputy is hoping it will still be there when Fianna Fáil get back into Government.

Mr. N. Treacy

The Minister said the Office of Public Works now operates under the normal planning laws. I was always told legislation could not be retrospective. The Office of Public Works has been completing works on behalf of this State for 150 years. More particularly, they carried out many functions until the Planning Act, 1963. They put up buildings on behalf of Government Departments and State agencies and there was never a problem with them. A court decision stated that it must conform with planning laws but there is a conflict in the law there which has not been resolved to my satisfaction. The court decisions are difficult to understand and balance. The purpose of this amendment is to clarify the position. I would be delighted if the Minister would accept it because I have a very deep interest in it.

Mr. Coveney

I do not propose to accept this amendment but I accept the thinking behind it. It could be included as a requirement or condition of any scheme for dealing with situations of this kind. However, I could not accept it as a blanket qualification of the powers of the commissioners to demolish.

Mr. M. Ahern

During discussion on the previous Bill we discussed a proposal I made regarding works done without preparing a scheme. My reading of this section is that emergency works can be done without a scheme. What constitutes a scheme in the understanding of the office? Does this section give power to the commissioners to carry out work without it being necessary to prepare a scheme? Do works being carried out constitute a scheme?

Mr. Coveney

Does the Deputy specifically mean the power to demolish buildings and structures or other works or property of that type?

Mr. M. Ahern

Subsection (1) (e) states: "to procure the performance or exercise by another person on their behalf, upon and subject to such terms and conditions as they may determine . . ." I would be worried if it was expressed that much further damage would be done by the time a scheme was prepared and the proposal was that the commissioners would be in a position to have remedial works done to stop further damage, etc.

Mr. Coveney

Does the Deputy mean without recourse to a planning application?

Mr. M. Ahern

Yes, or without recourse to the preparation of a detailed plan. Does this section cover that situation?

Mr. Coveney

May I consider that point and respond to the Deputy on Report Stage? The Deputy raised a fundamental question and I do not want to give him a quick answer at this point. Is that acceptable?

Chairman

The Minister will consider the matter for Report Stage.

Mr. McCormack

The Bill will allow compensation to be paid. However, does this measure relate only to buildings and structures where compensation has been paid? My point relates to the purpose of the Bill.

Mr. Coveney

No, it is not specific to a particular scheme. It confirms a general power of the commissioners. The section states: "The Commissioners shall have, and be deemed always to have had," power to demolish buildings or structures or other works or property.

Mr. McCormack

It does not relate to the reason for the Bill.

Mr. Coveney

The Bill has two purposes. The immediate reason is to deal with the problems caused by flooding. However, it is also a response to court decisions which placed the fabric of work programmes in the past at conceivable risk. In other words, there was a question about whether the commissioners had the power to do many things which were done satisfactorily over generations. This is why the term "shall have, and be deemed always to have had" is constantly used. It retrospectively copperfastens the right to do work which was done in the past. The Bill is twofold in that sense.

Mr. McCormack

It does not relate solely to demolishing buildings damaged by flooding.

Mr. Coveney

No.

Mr. N. Treacy

The Minister has broadened this matter into unqualified powers for the Office of the Public Works under this section.

Mr. Coveney

Not unqualified. It is qualified by the law, planning permission and other constraints.

Mr. N. Treacy

The Minister used the word "unqualified". If the Grianan Ailigh in County Donegal collapsed and particular stones were required to restore it, does the Minister mean the Office of Public Works could remove stones from an old castle in the west which was not restorable and bring them to County Donegal? Does he mean that a Government Department or State agency could ask the Office of Public Works to move a building it wants removed? Does the measure cover both or different situations?

Mr. Coveney

The general power to demolish arises where the Office of Public Works is charged with providing, for example, a prison or Garda barracks and part of the project involves demolishing existing buildings to provide a new building. This work would require planning permission in the normal course of events.

Mr. N. Treacy

Planning permission to demolish?

Mr. Coveney

Yes. Senator Dardis raised an issue during discussion in the Seanad in relation to important heritage buildings and whether the Bill gives the Office of Public Works power to charge in and knock down Dublin Castle. The reality is that planning permission must be secured before anything can be demolished and, in the case of any heritage building, the Office of Public Works is required to consult the Heritage Council. The possibility of this power being used to demolish an important heritage building is so remote it is not worth considering. The purpose of the section is to provide a general power to the commissioners to demolish buildings in connection with its necessary work of building for the State.

Mr. N. Treacy

Does that include any proposed heritage facility, commenced or otherwise?

Mr. McCormack

It would be difficult to demolish anything that had not been commenced.

Mr. N. Treacy

I used the word "commenced".

Mr. Coveney

The introduction of this clause is essential to the general work of the Office of Public Works. It is not included with any specific demolition in mind.

Mr. N. Treacy

May we take it that something which may be proposed but not concluded is not included?

Mr. Coveney

I said the clause is not specific to any particular demolition. However, it does not preclude one.

Amendment, by leave, withdrawn.

Amendment No. 10 not moved.

Section 3 agreed to.

NEW SECTION.

Mr. N. Treacy

I move amendment No. 11:

In page 5, before section 4, to insert the following new section:

4.—The Commissioners of Public Works and/or the Minister for Finance, acting on behalf of the Government of Ireland, may—

(a) vary the offers made to any persons, bodies, or companies whose properties deserve special consideration in exceptional circumstances;

(b) allow only pro-rata insurance compensation allowances against any offers being made by the State to any person, bodies, companies or otherwise;

(c) waive all or any taxes, fees, etc., of any type, or part thereof, which would be payable by any person, body, company or otherwise, in any subsequent transaction, in either the restoration or replacement of an existing property, or in the acquisition of a new or other property, deemed necessary as a result of any disaster;

(d) allow any person, body, company or otherwise to salvage parts, pieces, sections or otherwise, of any property affected by any type of disaster and remove same, including personal belongings, etc.;

(e) allow all of these personal removals, free from inclusion or absolute deduction, from any subsequent financial entitlements under any compensation scheme;

(f) allow any compensation payable to any person or body, company or otherwise, to be inclusive of all or part of any other similar public grant, for the acquisition or development of a similar property, in any compensation being paid by the State, or any of its Agencies, or Departments.

The amendment is self-explanatory. A provisional offer has been made to the victims of flooding. However, it is a standard type offer and there are always exceptions to the rule. No matter how criteria are created or one operates within particular parameters, people will fall outside the guidelines. There are a number of exceptional situations regarding flooding victims. For example, people left this country, created resources overseas and raised young families before returning to this country and investing their life savings in their new home. However, their home was subject to appalling flooding and there should be a facility whereby the commissioners and the Minister have the right to vary offers in particular situations.

Regarding the inclusion of insurance compensation, if a person had a house worth £60,000 and they were compensated at the rate of 25 per cent, the pro rata allowance against the insurance should be 25 per cent of that offered by the State and not 25 per cent of the amount received. Otherwise, people will not be compensated fairly. They will not be allowed to return to a situation which is as close as possible to the position they were in prior to the flooding.

People who must relocate will be subject to various taxes, such as stamp duty, Land Registry fees and VAT. There should be a facility whereby the Minister and the commissioners have the flexibility to give partial exclusion or full inclusion of any particular situation in offers they may make. In addition, the Minister and the commissioners should have the facility to allow individuals who are the victims of flooding to salvage and remove personal property or parts of the damaged property. When this has happened, the Minister and the commissioners will have the flexibility to include or not include it with regard to any decisions taken relevant to compensation offers.

The final part is in respect of compensation offers to those who have to relocate from their existing homes which may have to be demolished. New houses may have to be built but the fact that they were already owners of a property could debar them from new house grants or other subsidies and facilities available from other Government Departments, such as the Department of the Environment. It allows the Minister and the commissioners the flexibility to include in offers a grant element to take account of the fact that if people were building on a green field site in a normal situation they would qualify for these grants. To ensure that adequate compensation was paid, the Minster would have the flexibility to include in his computation of figures for the offer corresponding grants from other Departments. There would be a yardstick in helping to arrive at the final offer for compensation.

Mr. Coveney

It is because it would greatly limit our flexibility in the future that we cannot accept the amendment. This is essentially enabling legislation. Under section 2 (1) (c) and (d), we have the powers to make schemes or other arrangements ". . . for the provision of assistance whether in the form of money . . .". This gives us a framework which will allow us to respond not only to the problems of 1995, which arose from flooding, but to future flooding problems which may be of a different nature and which may require a different detailed response.

The enabling legislation, accompanied by a detailed scheme which we have in this instance, gives us flexibility and powers to do things, the details of which we cannot know in respect of a future disaster of a different kind. In addition, the parliamentary draftsman and the Attorney General have advised me that inserting such detailed elaborations of a scheme into this enabling legislation could, at some time in the future, be interpreted by the courts as defining the powers of the commissioners and thereby limiting them.

While I understand, and have listened to arguments at many meetings regarding these points, it is impossible to write into the Bill such all inclusive terms and powers to deal with future situations. It would be unwise to accept the amendment for this reason and I ask the Deputy to consider the downstream consequences of accepting it in view of the advice I have obtained and my view that we have maximum flexibility under the present proposals to prepare a scheme to meet individual requirements. The Deputy is aware we have done this. We may not have reached unanimity on it but we have gone a long way on foot of the proposals put to us. Inevitably, different proposals will be put to us in the future in a different situation and we may be precluded from dealing with them if we incorporate such details in the Bill.

Mr. N. Treacy

I am baffled. It is difficult to take lawyers seriously. We have a Bill before us because lawyers created the situation——

Mr. Coveney

We cannot ignore the Attorney General and every lawyer.

Mr. N. Treacy

We can never ignore the advice of anybody.

Mr. Coveney

That was not my primary reason.

Mr. N. Treacy

We have a Bill before us because lawyers advised that the powers of the commissioners were limited and could not deal with the making of offers to flood victims. We are now giving flexibility to the Minister, the commissioners and the Government to vary offers, to undertake measures regarding other compensations and to take taxes, fees, grants personal belongings and other matters into account. We are providing for the State and its agency to deal with people in a humane way with the maximum financial and legal flexibility, yet the lawyers and law officers advise us that we are defining and limiting such powers.

When I wanted to expand the powers at the outset I was unable to do so as it was considered to be unnecessary. Now we are told that we are defining and limiting the powers. Will we be back in the courts over a similar situation in the next century, or will some other State agencies, commissioners of the State, or the Government itself be in the same situation? It is unacceptable.

This is what is required on the ground to deal with people. It is what they want. I must represent those who elected me. I will be pressing the amendment.

Mr. McCormack

The Minister advises that if the measures outlined in the amendment were included in the Bill it would limit his powers accordingly. I understood that salvage of parts of the discarded house was permissible. I seek clarification regarding new house grants. Most of the flood victims, probably 99 per cent of them, have no desire to move to a new house. They have been forced into a situation where they have to provide a new house for themselves and something should be offered, whether it be through this Department or the Department of the Environment, by way of new house grants. Building a new house is not simple. Can it be dealt with under this section?

Mr. Coveney

All of the proposals contained in the amendment are within the powers which the Bill confers under section 2 (1) (c) and (d). The Deputies are probably more familiar than I am with the situation in County Galway. If we lock ourselves into dealing in detail with the requirements of the people of a specific area we run the risk that it will define our powers for the future and that another disaster of a somewhat similar but different nature will not be covered. For example, if a group of people from a different part of the country, or from the same part, make detailed proposals to the Minister of the day, some of them will inevitably not be covered. We are then defeating the purpose of creating enabling legislation to meet not only the problems of south County Galway and north County Clare but future problems in these and other areas. I therefore cannot accept the amendment.

I accept the arguments regarding the need to deal with the people of south County Galway and north County Clare and we have the power to proceed. We have a detailed scheme. The people there have seen it and improved it through the two groups representing them. This situation is ongoing and as soon as the Bill is passed, hopefully next week, we can proceed to deal with this matter. The acceptance of the amendment would not change anything but it could limit the flexibility of a future Minister in a similar though not identical situation. This is the only reason I do not wish to accept the amendment.

Mr. M. Ahern

Does section 2 (1) (c) and (d) effectively include the provisions of the amendment by not excluding them?

Mr. Coveney

It allows us respond in regard to all of the provisions. We are responding to most of them very positively. We could respond to every one of them; I am not saying we would do so.

Mr. M. Ahern

It would keep Galway Deputies happy if they were put in. However, as the Minister said, somebody would come out with something else and the Minister would have to take account of it.

Mr. Coveney

That is true.

Mr. M. Ahern

The Minister is saying it is unnecessary to specify those in the Bill.

Mr. Coveney

Yes. We would always have a detailed scheme separate from the Bill to deal with a particular situation. I ask the Deputy to withdraw the amendment because there is no necessity for it in the Bill and it could pose potential difficulties for the future.

Mr. N. Treacy

I have tremendous personal respect for the Minister.

Mr. Coveney

And I have respect for the Deputy.

Mr. N. Treacy

However, as someone who has served for 14 years in different Government Departments, I always find that if you do not insert it in law you are told later that you cannot do it.

Mr. Coveney

The Deputy has seen our scheme. It deals with most of those.

Mr. N. Treacy

I have seen the scheme but it does not deal with these in detail.

Mr. Coveney

It deals with some of them.

Mr. N. Treacy

Very few. I do not see a flexibility to vary the offers. I do not see pro rata insurance in the scheme, nor do I see a facility to waive any or all taxes or fees. Subsections (d) and (e) may be acceptable but I have no option but to formally press the amendment.

Mr. McCormack

I am as anxious as Deputy Treacy to have everything included which would benefit people who have suffered. However, if all this can be done without specifically inserting it in the Bill, I would not like to damage any future claims by limiting it to that. I support the Minister in saying that all this can be done without the amendment.

Mr. Coveney

That is the case.

Mr. N. Treacy

I am not convinced.

Amendment put.

The Select Committee divided: Tá, 7; Níl, 12.

Tá
Ahern, Michael.	Killeen, Tony.
Ahern, Noel.	O'Hanlon, Rory.
Browne, John (Wexford).	Treacy, Noel.
Foley, Denis.

Níl
Broughan, Tommy.	McCormack, Pádraic.
Connaughton, Paul.	McDowell, Derek.
Connor, John.	Mitchell, Jim.
Coveney, Hugh.	McGrath, Paul.
Creed, Micheal.	Penrose, William.
Kenny, Seán.	Ryan, John.

Amendment declared lost.

Mr. N. Treacy

I move amendment No. 12:

In page 5, subsection (2), line 38, after "accommodation" to insert "save where the Commissioners of Public Works provide the necessary monies to do so".

The purpose of this amendment is to give flexibility to the Commissioners of Public Works acting on behalf of the Government to spend money to provide alternative accommodation for people who are victims of a disaster, flooding or otherwise. I tabled 15 amendments, three of which were unnecessary. Some 12 amendments reached Committee Stage and this is the final one. However, I am frustrated and disappointed that not one amendment was accepted today. I have confidence in the generosity of the Minister to accept at least one.

Mr. McCormack

If Members of the Deputy's party were here some of the amendments might have been passed.

Mr. N. Treacy

It is not my responsibility to get Members to come here — I speak for myself.

Mr. Coveney

It is proposed under the Bill that any arrangements between the Commissioners of Public Works and a local authority for the provision of living accommodation would be purely voluntary. The amendment, as proposed, would place a statutory obligation on the authority concerned whenever the Commissioners provided it with the necessary moneys. Where the authority, for whatever reason, is not in a position to provide living accommodation even when the Commissioners provide the money, the Commissioners will make alternative arrangements to provide housing.

The Deputy will accept that it would create great difficulties if enabling legislation sought to impose an absolute obligation on a local authority. If for some reason a local authority was not in a position to respond after we had provided money, we would need the flexibility to deal with the matter. As the Deputy will know, the Office of Public Works has the facilities to build things and it would be better to leave this. I cannot accept the amendment.

Mr. N. Treacy

I do not accept what the Minister said. The Office of Public Works does not have the power to build things — it can only do so under the planning law. If there is a disaster and people need accommodation, a local authority which may already have arrangements made for the construction or purchase of properties should be given resources to provide accommodation by the Commissioners of Public Works acting on behalf of the Government. The local authority should be able to respond to the situation by construction, acquisition or otherwise, rather than have the Office of Public Works go into the market and compete as the local authority would be able to act quickly. The amendment gives the Office of Public Works a financial facility in such a situation.

Mr. Coveney

What the Deputy suggests is what will happen. It is inconceivable that in an emergency a local authority would not respond in the way the Deputy suggests on being provided with funds by central Government through the Office Public Works. We should not try to place a statutory obligation on it to do so because it would greatly delay this legislation as I could not accept such an amendment without consultation with the parties concerned. It is an unnecessary amendment and I ask the Deputy not to press it.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Sections 5 to 7, inclusive, agreed to.

Title agreed to.

Report of Select Committee.

Chairman

I propose the following draft report: The Select Committee has considered the Bill which is reported to the Dáil without amendment.

Report agreed to.

Ordered to report to the Dáil accordingly.

Mr. McCormack

I thank the Minister for steering this Bill through Committee Stage so speedily and for his attention to the flooding problem, particularly in the south Galway area. Previous Ministers of State in the Department, Deputy Hogan and Deputy Jim Higgins, did not spare themselves in dealing with the problem which arose at the time. I compliment the local authorities and all those concerned. I thank Deputy Noel Treacy for the debate this morning and I appeal to him to put his undoubted energy and talents into solving this problem.

Chairman

This is not a re-run of Second Stage. I allowed Deputy McCormack to say a brief word so Deputy Noel Treacy may reply.

Mr. N. Treacy

My philosophy has always been — ask and you shall receive. I endorse what Deputy McCormack said about the Minister and I thank him for his tremendous commitment, loyalty, dignity and integrity he has displayed in dealing with this matter. I thank the commissioners and their staff. They are excellent people who have given us much time and attention. I thank Deputy McCormack too for the tremendous leadership he gave when this was his local responsibility. It is to be transferred to my neck of the woods after the next election and I will do my best to replace the tremendous commitment, energy and zeal shown by Deputy McCormack.

I look forward to tabling further amendments on Report Stage. If the Minister of State wishes to reconsider my amendments and contacts me about taking them on board I will have no difficulty in making Report Stage easier and speedier.

Mr. Coveney

I thank the Chairman for the businesslike way he conducted Committee Stage. This legislation is urgently needed, although I need hardly point that out to the Deputies present. I also thank Deputy Treacy. It is not my policy to refuse all amendments; that is not how I operate. We accepted a number of amendments from the Deputy's party in the Seanad which improved the Bill. I thank the Deputy for his constructive comments this morning and his obvious interest in this subject. I also thank Deputy Ahern and Deputy McCormack, who has been identified so strongly with the unfortunate problems in the west.

Mr. N. Treacy

When is it proposed to take Report Stage?

Mr. Coveney

Next Wednesday.

Chairman

The committee will adjourn to a date next week to be agreed between myself and the convenors.

The Select Committee adjourned at 11.15 a.m.