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Select Committee on Finance and General Affairs debate -
Thursday, 20 Feb 1997

SECTION 9.

Acting Chairman

Amendments Nos. 18, 20 and 21 are related and may be discussed together.

I move amendment No. 18:

In page 8, subsection (1), line 17, after "section 6" to insert "or that precautionary measures are required to prevent the creation of litter".

I referred to this section earlier in relation to the precautionary principle. This section enables a local authority to require an owner or an occupier of any property to take immediate action to remedy littering or to take specific measures to prevent recurring littering. It will be open to a local authority to prosecute the occupier for an offence under this Bill. This section will allow a local authority to have an option to require the occupier to clean up if a place is heavily littered. Deputies will probably recall eyesores where litter has accumulated in the past. There were specific examples in the litter survey where litter accumulates in a particular location. I want to give power to the local authority to require it to be moved.

Amendment No. 18 is intended to allow local authorities to issue notices to occupiers where they consider precautionary measures are necessary to prevent the creation of litter. If a development is to be a catch for litter, before the problem arises, to institute the precautionary principle, I want to give power to local authorities to issue in advance a notice to an individual to take whatever remedial measures are required. Amendments Nos. 20 and 21 are consequential on this amendment.

Amendment agreed to.

Acting Chairman

Amendments Nos. 19, 23, 24 and 35 are related and may be discussed together.

I move amendment No.19:

In page 8, subsection (1), line 18, to delete "may" and substitute "shall".

Section 9 arises only when it appears to a local authority that a person is contravening section 6, although that may be slightly changed by the Minister's amendment. I have a problem with the use of the word "may", which also occurred in the Waste Management Bill. If an offence is committed, I do not see any reason action by a local authority should not be mandatory. That is why I have proposed that it "shall" be mandatory on a local authority to take some of the actions the Minister outlined. If there is no strong obligation on the local authority, the sections concerned are wishful thinking. Does the Minister have particular reasons, when a local authority knows someone is contravening regulations, they only "may" act?

I know the tendency to put in amendments to change "may" to "shall" because it seems to be a stronger phrase. In this instance, it is not. There are a variety of options open to a local authority. Making one option mandatory may not necessarily be the right way to go. For example, if a person fails in the duty set out in section 6, which is to keep a public place free of litter, a local authority can instigate a prosecution for the offence. However, instead of prosecuting for an offence, the local authority could avail of the power to issue a notice to the person requiring him to clean up and remove the offending litter.

The effect of amendment No.19, requiring the local authority to issue a notice in each case, will weaken the right to prosecute for an offence under section 6. Rather than go directly to a prosecution, there would there be a mandatory obligation to issue a notice. In the case of amendment No. 23, the insertion of "shall" will make it mandatory for a local authority to deal with the problem, where a person fails to comply with the local authority's request. This also interferes with the local authority's right to prosecute an offence. I would prefer that local authorities retain flexibility to use whatever available powers they deem appropriate to deal with a particular issue rather than stipulating the direction they must take.

In the case of amendment No. 24, the effect of inserting "shall" would make it mandatory for local authorities to recover the costs they incur in cleaning up litter. That might be a fools errand because there may be cases where it is clear that a prosecution or legal action to recover costs would be a waste of resources. The local authorities must retain discretion to make decisions in that regard. Inserting "shall" in each case might frustrate the good practices of local authorities which, by and large, would make the correct decisions. For those reasons, I ask the Deputy to accept my explanations.

I do not disagree with the Minister's statements on the three amendments. However, I am concerned that local authorities will forego taking action when the opportunity arises and will offer excuses. I take the Minister's point on amendment No. 24. A simple amendment which stated "shall, where practicable"——

That is exactly the same.

No, it is not. It is an obligation——

The local authorities are making judgment calls.

The section could be strengthened if my suggestion were accepted.

There seems to be an implication that local authorities will not take this law seriously. I do not believe that and I am confident they will act on it.

In what world does the Minister live?

I am a supporter of local government.

A strong supporter of strong local government. I am not implying the local authorities will not implement the law. I am clearly stating that certain local authorities will not know the contents of section 1 of the Bill.

That can be chalked up to the Minister.

I am being blunt in my assertions. I will withdraw the amendments but I ask the Minister to reconsider the matter before Report Stage. My intent is that local authorities "will and shall" taken action. That might mean amending the section to state that a local authority "shall take one of the following actions. . . .".

I will reconsider the matter.

The Minister referred to the voluntary code.

It has nothing to do with the voluntary code.

He referred to judgment calls.

I was referring to whether local authorities require litter to be removed immediately, whether they will remove it themselves and impose a charge——

They are not being directed to take action.

They are not directed to take specific action. They are being provided with strong powers to be used as they see fit.

There is nothing voluntary about it.

Therefore, it is a judgment call. Local authorities — we debated this issue during our deliberations on the Waste Management Bill — are often offenders in the area of generating waste or litter. In that context, I refer to litter bins which are not emptied. The Minister referred to local authorities making arrangements for regular emptying and cleaning but in reality this is not done for a variety of reasons. The Minister also referred to local authorities having power to force people to take action and recover costs as they see fit. Will the Minister provide that local authorities should be held accountable for not carrying out work for which they have a responsibility?

Local authorities are responsible and, like everyone else, they have a duty to prevent littering. No one is excluded from the provisions of the Bill.

What sanctions are imposed on local authorities?

The same sanctions as apply to anyone causing litter.

Does the Department recovers the cost from them?

No. If a local authority causes litter it can be prosecuted.

The prosecuting authorities. The Garda Síochána is the law enforcement agency of the State.

Those who monitor the implementation of Acts are often members or local authorities. That is certainly the practice of my local authority. For example, if the Bill is enacted we will put a sign up on the Trim road warning against littering and that action will be taken. Local authority members, on the public's behalf, are the watchdogs of this legislation and they will ensure that action is taken.

This Bill was discussed by Westmeath County Council regarding the steps to be taken. If it is strengthened by further amendment, we will have to take cognisance of that. It will be policed by local authority members on behalf of those they represent and local authorities will be obliged to ensure that they comply with laws laid down by the Oireachtas.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 8, subsection (1), line 20, before "measures" to insert "precautionary".

Amendment agreed to.

I move amendment No. 21:

In page 8, subsection (1), lines 21 and 22, to delete "to prevent a recurrence of the contravention".

Amendment agreed to.

Acting Chairman

Amendments Nos. 22, 25, 26, 41 and 42 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 22:

In page 8, between lines 26 and 27, to insert the following subsections:

"(3) A person on whom a notice under this section is served may, within such time as may be specified in the notice, make submissions in writing to the local authority concerned regarding the terms of the notice and the authority, after consideration of any such submissions, may amend the notice.

(4) A person on whom a notice under this section is served shall, within the time specified in the notice, comply with its terms.".

I am proposing amendments to sections 9 and 20, essentially to provide that persons receive notices from local authorities requesting that certain actions be taken. The amendments ensure that people will have an earlier opportunity to make representations to the local authority than is envisaged in the draft Bill.

Amendment No. 22 inserts two new subsections which provide that an occupier be allowed to make representations within a specified time limit — decided by the local authority — to the local authority when a notice is issued rather than later when the authority is about to deal with the problem. It will then be open to the local authority to amend the notice, if it so chooses, in light of the response or representations received. The new subsection (4) makes it clear that there is a duty on a person to comply with the terms of the notice received from a local authority.

Amendment No. 25 will delete subsection (4) since provision will be made to accept representations at an earlier stage if amendment No. 22 is accepted. It is not considered necessary to require local authorities to give seven days notice of their intention to act as the occupier will already have been informed of the time period within which the terms of the notice must be complied with. That sounds complicated so I will try to clarify the position.

The procedure in the Bill as published is rather complex because it allows a person to make representations after a notice is received and also seek an order for action. Therefore, the alleged offender has two bites at the cherry. He may receive a notice and state that, for whatever reason, the litter in question was not caused by him. The local authority can then state that he has three days to clean up the mess. Under the Bill as published, an alleged offender would have the option to restate his position vis-�-vis the litter in question. When the Bill is amended he will have one opportunity to make his representations. I am aware that there must be an appeals process or right of consultation but the procedure to make representations is a once-off opportunity. When the notice is determined by the local authority, he must comply with it and take the action required.

Amendment agreed to.
Amendments Nos. 23 and 24 not moved.

I move amendment No. 25:

In page 8, lines 36 to 40, to delete subsection (4).

Amendment agreed to.

I move amendment No. 26:

In page 9, subsection (6), line 3, after "who" to insert "contravenes subsection (4) or".

Amendment agreed to.
Section 9, as amended, agreed to.
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