Is it agreed that the sitting will conclude at 4.30 p.m? Agreed. I welcome the Minister for Arts, Heritage, Gaeltacht and the Islands, Deputy de Valera, and her officials to the meeting.
Is it agreed that the sitting will conclude at 4.30 p.m? Agreed. I welcome the Minister for Arts, Heritage, Gaeltacht and the Islands, Deputy de Valera, and her officials to the meeting.
This is a standard provision setting out the Title of the Act and providing for its collective citation within the Wildlife Act, 1996.
Amendment No. 3 is related to amendment No. 1 and they may be discussed together.
I move amendment No. 1:
In page 9, subsection (1), between lines 4 and 5, to insert the following:
"(d) by the insertion of the following after the meaning assigned to ’exempted wild mammal’:
' "export", where the context so admits, includes re-export and cognate words shall be construed accordingly;',".
This section amends a number of amendments in the principal Act and also provides new definitions where such are required. Amendments Nos. 1 and 3 will insert new definitions for the terms "export" and "import". These definitions, which are technical, are necessary to ensure that this legislation mirrors the phrasing used in CITES.
Amendment No. 5 is related to amendment No. 2 and amendments Nos. 72 to 77, inclusive, are cognate and all may be taken together by agreement.
I move amendment No. 2:
In page 9, subsection (1), lines 5 to 8, to delete paragraph (d) and substitute the following:
"(d) by the substitution, in the definition of ’falconry’, of ’orders Accipitriformes,Falconiformes and Strigiformes’ for ’order Falconiformes’ and the said definition, as so amended, is set out in the Table to this section,”.
These amendments are technical and are based on the advice received from the Office of Parliamentary Counsel. They are intended to ensure clarity with regard to the amended definition of falconry as originally inserted in the Bill at the time of publication. The main issue relates to the substitution of the word "and" for "or" in the relevant places.
I move amendment No. 3:
In page 10, subsection (1), between lines 11 and 12, to insert the following:
"(j) by the insertion of the following after the definition of ’hunt’:
' "import", where the context so admits, includes re-import and cognate words shall be construed accordingly;',".
Amendments No. 126 is related to amendment No. 4 and amendments Nos. 124 and 125 are consequential on amendment No. 126. Is it agreed that amendments Nos. 4 and 124 to 126, inclusive, be discussed together? Agreed.
I move amendment No. 4:
In page 10, subsection (1)(j), to delete lines 14 to 17 and substitute the following:
' "mechanically-propelled vehicle' has the same meaning as it has in the Road Traffic Act, 1961;
'mineral' includes any naturally occurring organic or inorganic element or chemical compound of set composition, internal structure and physical properties and occurring generally, but not always, in crystal form;',".
These amendments are related to the moving of the definition of the term "mechanically-propelled vehicle" from section 70 to the definitions section, section 6. By inserting the definition in section 6, it will apply generally across the Wildlife Acts.
I move amendment No. 5:
In page 11, line 22, to delete "or" and substitute "and".
Amendment No. 7 is an alternative to amendment No. 6 and they may be discussed together. Is that agreed? Agreed.
I move amendment No. 6:
In page 13, subsection (3)(a), line 27, after “subsection (2),” to insert “having regard to conservation value of the land and following a successful application for planning permission which should include an appropriate assessment of the environmental implications of the development for the conservation of the land,”.
This issue has been raised by a number of parties who have appeared before the committee. The key words in the amendment are "planning permission". It is my understanding that the Minister does not have to apply for planning permission where it is proposed to undertake works such as demolition or the provision of new buildings in an NHA. The amendment addresses this issue. We cannot have a situation where the Minister may undertake works of any nature within an NHA without having to apply for planning permission.
My amendment is similar to that of Deputy Clune. It provides, however, for the possibility of site restoration in greater detail given that many valuable sites are destroyed prior to designation as NHAs.
This section places an obligation on the Minister to have regard to the Wildlife Acts and their purposes prior to undertaking works. The Minister is also obliged to seek planning permission for any activity for which such permission is required under the planning Acts in the same manner as anybody else. The planning Acts apply in all circumstances.
The planning Acts apply.
The amendment would not add to the Bill. Under the planning Acts the Minister has to seek planning permission in the normal way. The matter raised by Deputy Sargent is dealt with in section 21. Perhaps we can discuss the matter when we reach that section.
Amendment No. 8 is a drafting amendment and amendment No. 41 is related to it. Is it agreed that amendments Nos. 8 and 41 be discussed together? Agreed.
I move amendment No. 8:
In page 16, paragraph (b), lines 32 and 33, to delete “and that order” and substitute “and the order under this section”.
These are technical amendments included on the advice of the Office of the Parliamentary Counsel. They relate to standard provisions regarding the payment of compensation under the Land Clauses Act and the need, where appropriate, to make an order. Amendment No. 8 relates to section 14 of the Bill which amends section 55 of the principal Act which provides power for the Minister to purchase land by means of a land purchase order for the purposes of the Wildlife Acts. The amendment clarifies that the specified order is a land purchase order. Amendment No. 41 relates to section 22 of the Bill which deals with the payment of compensation as a result of a refusal to consent to works in an NHA. The amendment clarifies that an order is not necessary in this case.
Amendment No. 10 is related to amendment No. 9 and they may be discussed together by agreement.
I move amendment No. 9:
In page 17, line 12, to delete "other than" and substitute "including".
This section deals with the definition of "works" which reads:
"works" includes any activity which destroys or which significantly alters, damages or interferes with the integrity of—
(a) a site, or
(b) any of its species, communities or habitats,
either intentionally or unintentionally, or any activity which has a significant impact on the site or on any of its species, communities or habitats, or on its landforms or geological or geomorphological features, or on its diversity of natural attributes, other than development by a local authority or development which is not exempted development for the purposes of the Local Government (Planning and Development) Acts, 1963 to 1993.
Why should works undertaken by a local authority be treated differently from works undertaken by an individual or group?
The amendment would mean that works subject to planning control undertaken by a local authority would also need the consent of the Minister for Arts, Heritage, Gaeltacht and the Islands. The Bill states that the term "works" will not apply to any activities that require planning permission from local authorities. Such activities will be decided upon by the relevant local authority under the planning legislation taking the requirements of the NHA into account. The planning system is a separate regulatory system and it is a matter of policy that it will not be duplicated through putting in place a requirement for dual consent in relation to NHAs.
The intention is to ensure NHAs are subject to proper protection under the planning system and there are legal provisions to ensure this. Section 24 will oblige local authorities to consult with the Minister for Arts, Heritage, Gaeltacht and the Islands regarding any works which could affect a designated NHA and to take steps to avoid damage to such an NHA. I am introducing an amendment to that section which will extend this obligation to cover notified NHAs.
Under the Local Government (Planning and Development) Act, 2000, the protection of NHAs once prescribed will be a mandatory objective on local authorities in the development plans. A local authority shall not effect any development which would contravene materially its development plan. Therefore, local authorities will be clearly obliged under law to protect natural heritage areas.
A Cathaoirligh, you will excuse me if I find it difficult to accommodate the speed with which you are going through the provisions. I congratulate you on it. I wish to tease out one or two matters of interest. The Minister's statement is helpful so far as it establishes there will be a procedure of consultation with the Minister. It is equally true that an NHA having been established, as I understand it from the text, and included in the development plan may enjoy protection under the planning legislation but there are gaps. The text in the Bill seeks to lift the activity of the local authority, at least temporarily, from the responsibility of the planning legislation. This flies in the face of the planning legislation which was amended only a few years ago to include State and semi-State activities. In the short-term, before designation and inclusion in a county development plan, there will not be the protection of planning legislation but a consultation procedure between the local authority and the Minister. The protection will arise subsequently after the inclusion of an NHA in a development plan. If I understand it correctly, the NHA having been established, the local authority will have a duty to include all NHAs and, perhaps, candidate NHAs; that is not the point. The point is — I suppose it is worth stating it bluntly — that the experience of those who are given responsibility for policing the ecology and the environment has been bad when it comes to the local authorities. They have never been out of the first half dozen major polluters in respect of water quality. The absurdity was when they were given the duty of ensuring clean water they were among the principal offenders. I could give instances but that would be irrelevant to the matter before us.
There is considerable merit in being seen publicly at every phase, from beginning to end, to be saying, of Ministers replying, that it was to avoid a dual coverage. There is nothing wrong with dual coverage, it is much better than having a gap between the initiation of a consultation on an NHA and coverage. I favour that approach because of the record of the local authorities who would like to think that they had in all cases behaved responsibly. That is not so.
The language is fascinating. I am not sure whether it is specified elsewhere but the definition includes "a significant impact on the site or on any of its species, communities or habitats, or on its landforms or geological or geomorpho logical features, or on its diversity of natural attributes. . . ". I compliment the drafting team on that definition. When it comes to development other than by a local authority it could include any development. I am happy that those who draft development plans will have to include NHAs. What they have omitted has been scandalous. Narrow engineering skills have been imposed on plans without a jot of information or of ecological, environmental or recreational responsibility.
I would not give a tráinín for the suggestion that a local authority would consult with the Minister. I was the Minister and if I was asked to choose between someone consulting with me and having protection in legislation, I would choose the legislation.
I support the Labour Party amendment as all too often local authorities have taken full advantage of their freedom to operate to a very different code of practice. I do not say local authorities in a general way because a number of sections in local authorities would prefer the same restriction on their operations as those that operate for the general public. If it is right for a local authority to be granted development permission it should be right for everybody. I hope we are moving away from the perception that there are two standards of law. I have in mind more than speeding ministerial cars. I hope we can embrace the spirit of the legislation in the same way as the environment and heritage are treated — as belonging to all of us. We are also treating the law as applying to all. This gives further ammunition to those who say two laws operate.
I am not sure from the Minister's reply what problems she envisages are insurmountable if this amendment were accepted. Certainly there might be a case of belts and braces and it might be seen as taking into account twice the need for protection in some areas. That is not a problem because, in general, we do not have enough protection. Therefore, it is not wrong to look at a belts and braces approach. A uniform approach is needed in providing protection for the environment. As Deputy Higgins said, local authorities have not covered themselves in glory. I hope the Minister takes that into account. Many sections of local authorities who contact me are unable to give their names because they are afraid of the wrath of their county managers. They would like to be afforded more protection in their operations than is often the case. It is time to look again at the powers of county managers and perhaps row it back and have the same law apply to everybody.
I seek guidance here. If the Minister accepts the Labour Party amendment is it her view that it would impose further duties on local authorities? If I interpret her properly, she is saying what we seek to do is already covered. The terminology used by Deputy Sargent, the belt and braces approach, is applicable here inasmuch as it covers an area where there might be some slippage as outlined by Deputy Higgins. What is the Minister's interpretation if she accepts the amendment in terms of the legal responsibilities or otherwise of local authorities?
The whole question of planning permission is a matter for local authorities. There may be concerns, as expressed by Deputy Sargent, with regard to councillors and the wrath of county managers and if that is so, this is not the appropriate Bill to address that problem. It should be addressed to the Minister for the Environment and Local Government as, indeed, should the whole question of the planning laws.
The issue in question here specifically regards the protection of NHAs. Under the Planning and Development Act, 2000, the protection of NHAs, once they are prescribed, will be a mandatory objective of local authorities in their development plans.
With regard to the local authorities' development, I must be consulted in relation to any such works which would affect an NHA. In general terms, in amendment No. 42 the consultation process refers also to proposed NHAs so it is not appropriate to accept the amendment that has been put forward by Deputy O'Shea for the reasons I have outlined. The NHAs are given protection in the way I have approached this issue and it is the appropriate way to deal with it. If there are other concerns, as Deputy Sargent has said, with regard to the responsibilities of other Ministers, I respectfully suggest that this is not the forum for such discussion.
Will the Minister clarify this matter? As I understand the Planning and Development Act, 2000, candidate NHAs will be included in the development plan. Which development plan is that? Is it the next one that they are statutorily obliged to complete? My question related to the interim. In the interim, without the planning restriction on local authorities, the sole protection would be a consultation with the Minister. They are supposed to have established development plans. The next block will be due in three, four or five years' time and in the interim we will have a consultation procedure.
The Deputy's point is quite clear.
That is why I referred to the general approach to consultation. All practical steps will be taken to avoid or minimise such effect or interference in NHAs. That covers the situation that might arise to which Deputy Higgins referred.
I am still not satisfied. I put it to the Minister that accepting the Labour Party amendment will not affect the duties that will be imposed upon local authorities. Can the Minister give a definition of consultation? Does the Minister have to give permission for something to go ahead? If, say, Dúchas does not respond to a local authority within a six month period, can a local authority proceed by way of default? Is there a watertight structure to make sure that local authorities cannot proceed with any development which could be detrimental to an NHA without the Minister's express permission?
They will have to draw my attention to the position and, therefore, we would have consultation on the matter. When we are dealing with the planning system, whatever concerns might be shared around this table, it is a statutory regulatory system and that is the way we have to approach it. We are only referring to NHAs in this situation; we are not referring to the question of planningper se and, therefore, it is not appropriate to deal with concerns about the general planning system in this particular amendment or in this Bill.
We are dealing here with a definition of works and this includes activities which destroy or significantly alter, damage or interfere with the integrity of a site. The Minister's non-acceptance of our amendment leaves loopholes that could be detrimental to NHAs, including the species, communities or habitats. Accepting our amendment is a way of strengthening the protection of NHAs.
I accept that Deputy O'Shea would wish to have the best possible legislation in this regard but the views I have already expressed remain the same because I believe it is the best way forward. As regards the protection of NHAs, in sections 19, 21 and 24 we will address in another way the concerns the Deputy may have but I cannot accept his amendment.
I will withdraw the amendment but I will reintroduce it on Report Stage when we will have the benefit of the further explanation the Minister has promised us in later sections.
Amendment No. 10 should have been discussed with amendment No. 9. It is a technical amendment.
I move amendment No. 10:
In page 17, lines 14 and 15, to delete "Local Government (Planning and Development) Acts, 1963 to 1993" and substitute "Planning and Development Act, 2000".
I have taken this proposed amendment on board and have put forward an appropriate amendment after consultation with the Chief Parliamentary Counsel.
This amendment is in my name and that of the Minister. It serves my purposes to accept it as the one amendment.
Amendment No. 11 is in the name of Deputy Clune. Amendment No. 18 is related and No. 12 is an alternative to Nos. 11 and 18. We will take amendments Nos. 11, 12 and 18 together, by agreement.
I move amendment No. 11:
In page 17, subsection (1), line 22, after "area." to insert "Any person may notify the Minister in writing of their wish to have a particular site or sites designated as a natural heritage area. The Minister having received such a letter shall cause an assessment to be made of the site having regard tosubsection(6)(a).”.
The substance of this amendment is my concern about how we assess NHAs. Currently, the Minister is the only person who has the authority to designate a site as a proposed NHA. Many organisations and people who do much good work in this area would have their own ideas on this matter. We have seen the special areas of conservation that have been proposed by Dúchas and there are others who would think that the list should be much longer. We should accept the fact that those with an interest or people working in the area would have an ability to propose lands for designation as NHAs and that the Minister should not be the sole proposer.
Amendments Nos. 11 and 12 would allow any person to recommend a site for designation as a NHA. It is not considered feasible to provide in legislation for formal recommendations by the general public on designations of NHA. The responsibility for proposing and designating sites rightly resides with the Minister. I can confirm, however, that my officials will deal fully with any submissions regarding potential sites which are received. I understand where the Deputy is coming from on this matter. Obviously, consultation on these matters is important. It does not mean there cannot be a full input of submissions to the Minister regarding potential sites. I am sure the Deputy would accept we have had constant consultations, as should be the case, with NGOs and many other individuals who would have wished to have been included in the consultations on the Bill. Responsibility for this matter must lie with the Minister, although NGOs or individuals can contact my officials or the Department and put forward proposals which would be considered.
I appreciate that. I tabled amendment No 12, the spirit of which is simliar to Deputy Clune's amendment, and I accept the Minister should be the final arbiter on this matter. The process of proposing an NHA should include submissions by way of proposals rather than people having to await the emergence of a list of sites from the Department and then proceeding to make recommendations and submissions on them. This point comes down to who is the arbiter in terms of who is entitled to act or to propose sites in this area. I accept the Minister has the final word and that will not be eroded by the acceptance of these amendments. The tendency has been for the Minister to deal directly with the landowners concerned, which may lead to a vexatious relationship and to such an issue being confrontational. If individuals were openly invited to make proposals, it would come to pass that communities would seek the designation of certain sites as NHAs. The location of such sites may cross the boundaries of landowners. The previous section included the words "significantly alters". People should be allowed and encouraged to interpret what is meant by those words in terms of works carried out.
I ask the Minister to note that acceptance of these amendments does not usurp the final say of the Department or the Minister on the designation of such sites. The effect of these amendments would be to encourage those who have a keen interest in this area, many of whom would have spent many years in college studying the merits of such matters, to be proposers as well as commentators on the process.
My amendment states that "Any person may notify the Minister in writing of their wish to have a particular site . . . " I understand the Minister will be the final arbiter on the designation of such sites but if, as Deputy Sargent outlined, people consider an area is worthy of designation, there should be a procedure open to them to pursue that. I accept what the Minister said and I was glad to hear her say that her officials will deal fully with any approaches, but such a commitment is not strong enough as it does not place an obligation on the Department to follow them up. The Department may accept a recommendation, but will it be considered further following its outline at an initial meeting? I would like a measure included that is stronger than the Minister or her officials indicating they will deal with such proposals to ensure a procedure is in place to enable people to pursue the designation of such sites. I appreciate the Minister gave that commitment in good faith, but it is not strong enough in terms of what these amendments seek.
Representations were also made to me on this issue, but having considered this issue at length I did not table an amendment on it. The inclusion of such a procedure would require an increase in staff in the Department of Arts, Heritage, Gaeltacht and the Islands and in Dúchas, which I am sure both require extra staff at present. Landowners could recommend that sites should be designated as NHAs for reasons other than for the purpose of conservation. If a landowner did not want land adjoining his or her property to be developed, he or she could request that such land be designated as an NHA. In cases where good scientific information is provided that a site should be designated as an NHA, such recommendations should be seriously examined and assessed. We must strike a proper balance between sites worthy of assessment for designation as NHAs and people who might make submissions for wrong reasons which would place an obligation on the Minister to investigate them and thereby waste the valuable time of her staff.
I agree with the principle of the designation of appropriate sites as NHAs. I ask the Minister to expand more on what she meant when she said her officials would respond to such recommendations. Perhaps such recommendations could be further considered if back up scientific material was provided. Recommendations from NGOs which have reputable people among their membership would be appropriate as they would be made solely in the interests of conservation.
Deputy Sargent said that vexatious arguments could be put forward in terms of third party input because of difficulties that might arise between landowners and those who would term themselves conservationists. An influential member of an NGO who was working on the appeal system met me and told me he was delighted there was a convergence of view between landowners and those who represent the NGOs. He said it is often perceived that there is not a great difference between the two, which is heartening.
Deputy O'Shea put his finger on the practical implications of acceptance of the position outlined in these amendments. There is a risk that providing for formal third party input could be divisive, a point I referred to on Second Stage. I gave a guarantee that all proposals and suggestions put forward to my officials will be carefully considered. That is the most practical way forward. Deputy O'Shea made the point that such work could diffuse efforts. I would like more staff for my Department but, regardless of the number of staff one has to deal with this area, if the situation proposed in these amendments was accepted, we could have an unruly approach to this area and put a number of NHAs at risk in that rather than following up on genuine proposals for the inclusion of certain sites, they could be lost because of diffuse efforts in dealing with vexatious proposals. My officials will continue to examine, in a genuine and professional way, all proposals submitted. That is the best way to deal with such proposals at present rather than including in the legislation the system outlined in these amendments.
I want to be clear about the Minister's position. She said that people who are interested can make submissions and they will be taken into account. However, she also said that if people are allowed to make submissions and recommendations, the system will be under strain. I support the Minister's efforts to get more staff for Dúchas.
The set of criteria is tight for recognising an NHA and this is based on scientific grounds. This means that any anti-neighbourly activity or attempts to have an adjoining field designated as an NHA will be quickly seen for what they are unless they are based on clear scientific grounds. If the Minister's rules are applied consistently across the board, they should rule out any of the unruly behaviour she mentioned in relation to the proposals. However, if submissions are to come from NGOs, they are either welcome or they are not welcome.
I would prefer them to be welcomed with open arms rather than tolerated as a necessary evil. I would prefer it to be open and that the NGOs are allowed to make proposals. Nobody is taking away the Department's power as the final arbiter. Proposals must be based on scientific grounds and I hope nobody would make proposals that were not based on such grounds. They would be rejected quickly if that was the case.
We are aware that the potential NHAs, which are on the shadow list prepared by NGOs, are genuine and have a good scientific basis. I have already said that these will be given due consideration by my officials and the Department. I wish to continue the spirit of co-operation that has existed. This is not likely to change. However, nothing much would be gained by putting it in legislation because it already exists in practice. It is happening and genuine proposals are given due and sympathetic consideration.
It is happeningvia the European Commission in many cases. It is known around the Houses that NGOs go to the European Commission because it appears to have an even more open arms approach in terms of dealing with them. This is the perception among NGOs. Given the views the Minister expressed in Boston, we should be considering subsidiarity and dealing with our affairs in a manner that is as close to home as possible rather than going to Brussels and having to deal with another administrative level. We should be able to deal with matters domestically. If this is not included in the Bill, people will be encouraged to continue to run to Brussels with regard to designation.
I share the philosophy behind the Deputy's point. There is no need to run to Brussels because these decisions can be and are made at home. If we are to operate efficiently and effectively, it would be much better to do business directly with the Department. I have always welcomed, and I hope encouraged, this approach. The fact that so many meetings have taken place over a considerable period of time on a consultative basis regarding every aspect of the Bill is evidence of my good faith in this regard.
I accept the Minister's bona fides. She guaranteed the committee that her officials will consult the relevant NGOs. This is fine, but this legislation will be in place in the future and nobody knows where they will be after the next general election. The next Minister may not display the same good will so it is important to address the matter now and include it in the legislation in some form.
I accept the point that the wording of the amendment may allow vexatious proposals for designation of sites or areas to be made. This is not the intention, but there should be some facility to allow the wishes of people who are working in the area and who have the expertise and understanding to be addressed.
Amendments Nos. 15, 40 and 98 are related to amendment No. 13 and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 13:
In page 17, subsection (2)(a), lines 25 and 26, to delete “Minister for Agriculture and Food” and substitute “Minister for Agriculture, Food and Rural Development”.
I appreciate Deputy O'Shea's vigilance in this matter and I have taken the amendment on board after consultation with the parliamentary counsel.
I thank the Minister. We should all apply ourselves to such drafting amendments because matters can slip through in the best of circumstances.
I move amendment No. 14:
In page 17, subsection (3)(a), line 41, to delete “Ordnance Survey Office” and substitute “Ordnance Survey of Ireland”.
This is a textual amendment of the same nature as the previous amendment in the context of the new name, the Ordnance Survey of Ireland, being substituted for the Ordnance Survey Office. I ask the Minister to accept the amendment.
This is different from the previous amendment. The Ordnance Survey Office has been used in three Acts between 1922 and 1998. I have been further advised by the chief parliamentary counsel that the post reference is not appropriate as legislation dealing with the title of the institution is under consideration.
I accept the Minister's explanation and I will withdraw the amendment.
I move amendment No. 15:
In page 18, subsection (5)(a), lines 21 and 22, to delete “Department of Agriculture and Food” and substitute “Department of Agriculture, Food and Rural Development”.
Amendment No. 17 is related to amendment No. 16 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 16:
In page 18, subsection (6)(b), line 45, after “impact” to insert “and the possibilities for site restorations”.
The purpose of the amendment is to ensure that, if work is carried out to a proposed designated site, the impact of restorative work is addressed.
My amendment is similar to Deputy Clune's proposal. It raises the point made earlier which we were told would be dealt with later. The amendment draws attention to the possibility of site restoration. We discussed under section 15 works which destroy or significantly alter, damage or interfere with the integrity of a site. The term "significantly" is vague and people and the Legislature in particular should be made more aware that restoration of a site will be required if people destroy it. This also applies to REPS, although I do not want to go into another Department's territory, where it is a well established practice. Prior to designation under that scheme, works are regularly carried out which destroy the integrity of an area so it will not be protected as stringently in the future. I understand that does not apply north of the Border because there is a slightly different way of assessing the integrity of a site and giving it points instead of just a general recognition. It applies in the natural heritage areas. I ask the Minister to take that spirit on board.
As regards Deputy Sargent's points, we have not reached that section. His points will be dealt with under sections 19, 21 and 24.
Deputy Clune's amendment would place an obligation on the Minister when assessing land for possible designation as NHAs to consider sites which are unsuitable at that point in time but which might be suitable following restoration. Apart from questions about the advisability and usefulness of this approach, such an amendment would be fraught with legal and practical difficulties.
We have already been advised by the Attorney General that we cannot place certain burdens on landowners of proposed NHAs. Accordingly, we cannot place a burden on a landowner of a site which is not suitable in its current condition for proposal as an NHA. Difficulties will arise about who would restore the land and who would pay for it, etc. It has already been well flagged that land will only be proposed and designated for its scientific value. We will be doing a great job if we can protect what we have without diverting energies and money to restoring sites, thus diffusing the overall effort and leading to a less satisfactory outcome.
If a site is proposed for designation for its scientific value, I am concerned that a landowner or someone could damage it. This is also the subject of other amendments. If this is left open, anything could happen to the site. I know some sites may not qualify even following the proposed designation procedure. We are talking about the costs of the works. I understood that whoever did the works would be responsible for restoring the site.
We are talking about two different things. This amendment proposes that sites which are unsuitable at this time might be considered suitable following restoration. That is different from destroying a site which is referred to in later amendments. As regards sites which might be suitable following restoration, the legal advice I have been given is that we cannot place a burden on a landowner of a site which is not suitable in its current condition for proposal as an NHA.
I accept it is a different situation if it is not suitable at present. Perhaps we can address this issue when we discuss the later amendments.
We are at cross purposes. No one is suggesting that the Hall of Tara should be restored to make it a lovely NHA. However, it must be taken into account that a proposal to designate land as an NHA may be a warning bell to some landowners that it will not be possible to do all the various things he or she wants to do on a site, so they had better get the bulldozer out fast and do them before that happens. That has happened in REPS.
I understand that. The Deputy raised that point on Second Stage and in conversations with me. It is referred to in the later sections.
What happens between someone declaring an interest in a NHA and the point at which the designation is made? According to the text, such an area is unprotected. We can discuss this at a later stage if necessary. The Minister said she had received the advice of the Attorney General. I am sure his advice was on the propriety of placing a charge. However, there is a great difference between imposing a charge on a putative NHA owner and imposing an imposition or a prohibition which one is able to do in law. If the Minister tells me this discussion is more appropriate to another section, I have no difficulty waiting.
It would be better to discuss that point when we reach section 19.
I am happy to proceed on that basis.
Amendments Nos. 19, 20 and 21 are related and may be discussed together by agreement.
I move amendment No. 19:
In page 19, line 5, after "Minister" to insert "and the Minister shall outline the scientific grounds on which this decision is made".
The thrust of the arguments made by Deputy Clune and Deputy Sargent for non-designation have been accepted. I propose an appropriate wording as agreed with the chief parliamentary counsel.
I move amendment No. 21:
In page 19, between lines 5 and 6, to insert the following subsection:
"(2) The Minister shall, when informing a person undersubsection (1), state the scientific grounds on which the decision was made.”.
I move amendment No. 22:
In page 19, subsection (1), line 14, after "measures" to insert "including management plans".
This section deals with NHA orders. I want to amend subsection (1) which states that the "order may include such provisions as the Minister thinks fit which relate to protective measures so specified". I am seeking to insert the words "including management plans" after "measures". My concern is that there should be an overall strategy in relation to NHAs, for whatever reason. The orders should be very specific in this regard and should lay out the important features, in terms of the ongoing life of the NHA. Basically, I want the Minister to be more prescriptive in regard to the NHA orders.
I do not consider it appropriate to make specific mention of management plans, as Deputy O'Shea suggests, in the section. The NHA order may include whatever provisions are required in order to protect the site, including stipulations relating to the management of the site.
I take it the Minister is saying that this section does not exclude what I am looking for, that is, if the Minister sees that a management plan is necessary, the legislation as currently drafted allows for that.
Yes. As I said, whatever provisions are required will be included. These will obviously follow on from the discussions that will take place with the landowner in the usual way.
If specific measures were necessary that required an overall management approach, would the Minister be precluded from including that in the order?
I am sure the Deputy is aware that such plans are drawn up in consultation with the landowner. I feel that is the best approach. I have nothing to add — that is the procedure.
The other feature is that if there is a management plan the NHA order will be a matter of public record, so that NGOs and the public will be aware of an order in relation to a particular NHA.
I am told the arrangements are already there under section 18 of the 1976 Act to incorporate the question of management plans. That matter has, therefore, already been dealt with in terms of having consultative discussions with the landowner.
I will withdraw the amendment at this stage. I will consider what the Minister has said and look at the 1976 Act in the interim.
Deputy O'Shea tabled amendment No. 23, which proposes a new section. Such a section must be examined for a potential charge on the Revenue and, as it was found to be a potential charge, it is out of order. I have already given notice to the Deputy of this.
Amendments Nos. 24 and 25 are related and may be discussed together.
I move amendment No. 24:
In page 19, subsection (1), line 34, after "Where" to insert "notice has been given undersection 16 of an intention to make a natural heritage area order or”.
My colleague, Deputy Michael D. Higgins, already expressed an interest in addressing the protection of the site between notice and formal making of the order, so I will yield to him on this occasion.
The reason we are so anxious to deal with this, wherever it arises in relation to the legislation, is that it is accepted that the period from the putting in of the notice to the actual designation will be roughly about six months. It is important to be frank, and the experience has been that people have wreaked havoc in six months in relation to other matters and different forms of designation. While I am sure the Minister and I aread idem on the speedy conversion of everybody to a partnership in favour of conservation in the interests of heritage, the evidence is that the whirr of the bulldozer starts at the first danger of an NHA designation. The question that arises is very simple — what protection is available in this period?
I am not suggesting a charge of any kind on the owner. I imagine the Attorney General's advice to the Minister was that one cannot impose a charge or cost on a landowner in relation to one's intention to declare an area an NHA. However, I do not believe the Attorney General could advise under law any restriction on any Minister of the day placing a duty or prohibition in anticipation of the Minister's order.
The second strategy would come at it in a different way. If one assumed a person had damaged a proposed site, the Minister would have a difficulty. If the site has been degraded, in the extreme case, to the point at which it cannot satisfy the scientific criteria by which a designation could be made, as matters stand the person who has done that walks away scot free. If it is a matter of judgment as to whether degradation has taken place under the later sections to which the Minister referred, it would be appropriate to be able to place a duty of restoration or care on such a person, which is supported, interestingly, by Supreme Court decisions. Hence, my assumption that the AG's advice in this matter would be limited in relation to a putative cost.
There has been great concern and worry about this matter. I agree with the Minister that the future should be one in which there is maximum partnership between the users of land and farmers, who have a history of thousands of years of conservation. However, the Chairman will remember my time as a Minister in this area. There were two great periods. The first was the period between Holy Thursday and Easter Tuesday, which was a privilege day for the Civil Service, during which machines roared all around the country. At one stage, I retained the advice of three senior counsel because I was so busy getting court orders to stop people demolishing buildings. On the other side of my extended responsibilities at the time, people were building golf courses right, left and centre. I could almost hear the roar of those machines from another part of the country. I was responsible for blocking things, as the present Minister has and would.
There is no point imagining these situations do not arise, because they do. People in County Clare, where I have connections, have told me frankly that they have flattened lots of things. I live in a part of County Clare which has a flattening entrepreneur who has exercised his stamp over most of it. I better not say any more under privilege, but I think you know who I mean. There might be nothing left in six months' time.
There is a reasonable concern about how we can protect things from the moment of declared intention to advertise until the moment the designation is made. I am sure members on all sides would want to assist the Minister in putting in place any protection she sees fit for that period.
I move amendment No. 25:
In page 19, subsection (1), line 35, after "land" to insert "or where the Minister has issued a notice in accordance withsection 16”.
I move this amendment in the same spirit. I am concerned that from the time a site is proposed there will be a six month period — although it could be longer given the shortage of staff in all Departments — during which the site will not be protected adequately. Anything could happen in that time and there should be some protection for the site once it is proposed to be designated as an NHA. Such sites should be protected until such time as a decision is made one way or the other. That is the gist of my amendment.
We need clarification by way of a clear statement from the Minister in this regard. I recall that in the Dáil we were discussing proposed designations and the clear view then was that they were protected pending full designation. However, I would like to know just how effectual that is. No matter how much one clamours and declares forthrightly that the area is protected, if it is clear that nothing more than rhetoric is involved then it has no standing whatsoever. I have to deal with a number of portfolios, including agriculture, and I know the overwhelming feeling is that if one can get away with it one will do so. That is the lesson for the NHAs. I hope the Minister can provide us with some comfort in that area in the form of proposals to ensure that will no longer be the case in future.
I share the views that have been expressed on the other side of the table in this regard. I, also, have concerns and I want to try to see what we can do to address the interim period which is obviously a dangerous one. Whereas, I accept that the vast majority of farmers would not dream of destroying an NHA, there are certain unscrupulous individuals who may attempt to do so and who, as Deputy Higgins mentioned, may in certain cases have done so already. If this continues I certainly want to be notified of such destruction. It is a very serious matter.
In this regard I have put forward certain proposals but, unfortunately, the Attorney General's Office advised that it is not feasible to treat proposed sites in the same way as approved sites. Here we get back to the nub of the problem. I have had to examine another way of approaching the issue. I am well aware of the need to afford the greatest level of protection we can on notified sites. Accordingly, I have proposed an amendment to section 19 that will require the owner of a notified NHA to give the Minister three months notice of works on such land. I have also proposed an amendment to section 21 that would allow the Minister to order the restoration of a site which is damaged during the notification period after such a site has been designated as an NHA.
It is considered that these proposals, that is, the three months notification and the order to restore, in conjunction with the existing provisions in section 20 of the Bill will greatly strengthen the protection afforded to notified NHAs.
I was disappointed by the legal advice I was given on this matter, but I do not think we have very much leeway with it. Consequently, I have tried to approach it in another way, saying that we will have three months notice plus the order of restoration. I hope that will go a long way towards solving the kind of situation that Deputies have referred to concerning protection.
An alternative legal route might have been to bring forward the designation to the point at which one gives first notice. After the procedures that the Minister has announced in the Bill, one could have a confirmation procedure. If one had put the designation period back to the point of first notice and one had a confirmation process later, at that stage one would have extended the protection retrospectively. I am worried that the three months notice provision may be contested legally. One must remember that if the Attorney General is advising the Minister she cannot place a charge on a person who is the owner, occupier or user of a proposed site, that person may well, in turn, claim that they had no certainty that there was any obligation on them. Indeed, there is no certain obligation on them at that point.
A defence with regard to the order to restore could be that a person had not consciously breached the order. In other words, it seems extraordinary that the Attorney General's arguments would prevail on one matter, yet in relation to these two strategies they would seem to be singularly weaker. I am trying to be helpful and I suggest that between now and Report Stage one could look at making the moment of designation the moment of putting the initial notice in the newspaper. One could have a separate procedure for confirming the order, which allows for all the procedures of consultation and appeal to arise between first notice of designation and confirmation. In that way the protection of the site will flow from the first moment of it appearing in the newspaper. From that point on, as regards confirmation, one will have satisfied all constitutional obligations to the owner in the period in between. Perhaps that procedure would be worthy of investigation between now and Report Stage.
I understand the Minister has received the advice of the Attorney General on this matter. I accept she knows that we are trying to put some procedure in place. The situation we are trying to attain already exists for special areas of conservation which are protected from the moment of proposal. Will the Minister throw some light on that matter?
As regards the proposals that were raised by Deputy Higgins, I know he is trying to be helpful. However, this is not the first time we have tried to examine the matter in that way. When we put this particular proposal — I am referring to the first notice of designation — to the Attorney General, we were told that it would not be possible because of problems relating to appeals and objections. This matter was raised by the Attorney General. Deputy Higgins said there may be a legal challenge to the three month period of notification. He will be well aware that under the National Monuments Acts there is a provision for a two month period of notice. Whereas they are not the same, the provision is similar in putting forward three months notice of works. That would have to be complied with and there are heavy penalties for not doing so.
Under the National Monuments legislation, the site and its environs enjoy protection. As regards the notice period, I accept the parallel the Minister referred to but, as she said, they are not the same. I suggest that the Attorney General's reservations in relation to the integrity of the appeals process, the possibility of objections and counter argument, are actually met by the introduction of a confirmation stage. The Attorney General will probably advise that one could not go ahead and designate finally without having given the opportunity of raising an objection and an appeal. However, if one is saying that one is making a designation and that all the protections of the Act will flow from this moment, but that the confirmation of the Minister's order will be after a period of objection and appeal, it seems to me that the Attorney General's objection is met. I am happy to wait until Report Stage, however, to hear his opinion on that.
I listened carefully to what the Minister had to say and, notwithstanding the advice she has been given, she holds out some hope that restorative work can be required, even if it was as a result of damage done during the application period. Having said that, restoration can sometimes be meaningless, depending on the sensitivity of a site. For example, it is not just a matter of reintroducing water to a drained site.
Is there a penalty for not restoring a site or not being able to restore it? We are trying to prevent damage here rather than cure it, because often the clock cannot be put back in these cases. Can the Minister further strengthen the provision in regard to restoration by indicating some compensatory fine that would fund protection elsewhere if an area has been destroyed and degraded to that extent? It might be feasible to require restoration in law, such as in regard to Archer's Garage or Drogheda grammar school, but it does not always happen and it is sometimes physically impossible to make it happen. Is there a deterrent, other than restoration, for, as the Minister said, any unruly behaviour?
Will the Minister answer Deputy Clune's query about the SACs?
In answer to Deputy Clune's question, the Attorney General's office advised it would not be possible to give NHAs a similar level as that pertaining to SACs. That was the legal position put forward on advice from the Attorney General.
The issue of restoration refers to section 21. However, to put Deputy Sargent's mind somewhat at rest, there is quite an improvement here with regard to restoration because it is quite a strong proposal. We are saying that, in the event of such restoration not being done by the landowner or land user, the Minister will have the option of having the site restored independently and going to the courts to recover the costs. The section also provides that a person failing to comply with a direction under this section will be guilty of an offence. The penalties of a fine of up to £50,000 or two years in jail are quite strong. That sends a very strong message on what we want to do in regard to restoration. As I said, we can have further discussion on it, if the Deputy wishes, under section 21.
I share the concerns that have been expressed by Deputy Higgins and others. I intend to return to the Attorney General with the suggestions made today. I cannot promise there will be any change because we put forward very similar, if not the same, arguments ourselves. However, it is certainly worth having further discussion with the Attorney General's office and, on foot of that, we can have further discussion on Report Stage.
I move amendment No. 26:
In page 20, subsection (1)(b)(ii), line 4, to delete “section 18” and substitute “section 11 or 18”.
This amendment allows for the carrying out of works in NHAs if such works have been agreed under a management agreement drawn up under section 11 of the principal Act. As the Bill stands at present, only management agreements drawn up under section 18 are covered.
Amendments Nos. 28 and 29 are related to Amendment No. 27. Amendments Nos. 27 to 29, inclusive, may be taken together by agreement.
I move amendment No. 27:
In page 20, subsection (1)(b), between lines 5 and 6, to insert the following:
"(iii) not later than 6 months after the Minister is notified in writing in accordance withsubsection (1)(a) the Minister shall notify the applicant in writing of his or her decision, or”.
Subsection (1)(b)(iii) states “6 months have expired from the date of the notice . . . and the Minister has not refused consent in writing”. I would prefer a provision where the Minister must address the situation. This gives carte blanche for the works to be carried out once six months have passed, regardless of any communication. My amendment proposes that the Minister would be obliged to reply in writing giving his or her decision six months after the notice has been given. The consequential amendment No. 29 would delete the existing wording. Otherwise, once the six months have passed, the proposed works could go ahead, regardless of any notification from the Minister.
The current provision in section 19 stipulates that a landowner must notify the Minister if he or she wishes to carry out work on a designated NHA. The Minister can either prohibit such work or agree to its being carried out. If the Minister does neither within six months of being notified, the landowner can proceed with the work.
Deputy O'Shea's amendment proposes the dropping of the specified time period for reply to the landowner. It is only reasonable that landowners have an assurance that they will have a decision on their proposed works within a specified period. Otherwise, landowners could be left in limbo in the long-term. The Attorney General's office agrees that landowners cannot be left for an interminable period without knowing if they can proceed. Six months seems adequate for a decision in this regard.
Deputy Clune's and Deputy Sargent's amendments propose a legal requirement on the Minister to reply within the six month period. The Attorney General advises against such a provision as it would leave the Minister of the day unduly and unnecessarily exposed to legal action.
However, I am aware some NGOs have raised concerns about the possibility of a Minister not replying within six months on purpose to allow development proceed in a somewhat underhand way. I do not think such fears are well founded. I certainly hope I do not approach my responsibilities in such a cynical way. Furthermore, I am satisfied that my successors in office, of whatever political persuasion, would act in a like manner and would be responsible.
My experience does not suggest that public servants would aim to circumvent their responsibilities either. There is always a possibility of replies not being issued due to pressure of work or oversight, which is perhaps what the Deputies opposite are suggesting. However, I intend to have this addressed by proper management systems in respect of the process in my Department. Provisions will have to be put in place in the Department to deal with the six month period in a fair manner.
In proposing my amendment No. 28, I am slightly aghast at the blind faith the Minister has in her successors of all political persuasions. However, having said that, I admire her confidence in the future.
While I do not want to stray into another Minister's portfolio, comparisons can be made here with planning legislation. There would be hell to pay if people applying for planning permission to build a house were told they could go ahead if they did not hear back in a few months time. Can we not bring some of that reasoning to this debate? Whether the Minister is overworked or the Department is under resourced is an issue between the Minister and the Department of Finance and of the general state of the coffers. However, it should not be the case that the environment or natural heritage areas can be let go if we do not have enough resources. That is ultimately what is at stake here.
Being told that one can go ahead because there is no problem with one's application, or being told one cannot go ahead because there is more to one's application than meets the eye, is the minimum a citizen should be able to expect from the authorities. I do not find it acceptable. If it is not acceptable to operate planning in that regard it is not acceptable to operate an NHA designated scheme in that way. There should be uniformity in the way we approach these things, no matter what Department is involved.
I share the Minister's view that it is highly unlikely that the scenario set out will materialise, where the Minister will use this provision to allow for permission by default for any works to be carried out. There are always systems failures in the best of circumstances. It grates on me that in a situation like this if the Minister does not respond permission to proceed is granted by default. I understand that the planning legislation provides that if there is not a response within eight weeks of receipt of the application permission by default is granted.
Could a mechanism be devised to remind the Minister to respond to applications? I am not sure how that can be done on a systems basis, but it is an appalling vista if works that could be highly damaging to an NHA could be carried out lawfully because the Minister of the day did not respond to an application through a systems failure.
Or a postal failure.
I understand the concerns expressed, especially on the part of Deputy O'Shea that there could be a systems failure. No system is perfect. The best approach is to ensure we address the management systems in the Department. This will be done to deal with this situation and to issue replies so that the kind of scenarios envisaged by the Deputies would not arise and that matters would be expedited in a fair way.
I would prefer to see a provision where at the end of a six month period the applicant must contact the Department advising that he has not received a decision and that at that point the Minister is given a further fortnight to respond. I accept it could be argued this puts an onus on the applicant that could be considered to be inappropriate. I am anxious to ensure every safeguard is in place to protect against a systems failure. If there is a postal problem other ways would have to be found to issue notices. This provision is not appropriate to legislation. If the Minister had a second chance to respond and did not respond he or she would be incompetent.
I will put that view to our legal advisers. It appears to be a fair approach. Further consideration needs to be given to this. I will get legal advice and we can reconsider the matter on Report Stage.
I am pleased to note the Minister's assurance that the matter will be reconsidered on Report Stage.
Amendments Nos. 30, 34 and 36 are related and amendments Nos. 37 and 38 are alternatives to amendment No. 36. Therefore, amendments Nos. 30, 34, 36, 37 and 38 may be taken together by agreement.
I move amendment No. 30:
In page 20, between lines 8 and 9, to insert the following subsection:
"(2) Notwithstandingsubsection (1), where a notice has been served under section 16(2)(b) in respect of any land, no person shall carry out, or cause or permit to be carried out, on that land any works specified in that notice, being works which are liable to destroy or to significantly alter, damage, or interfere with the features by reason of which the notice was served, without giving the Minister not less than 3 months’ prior notice in writing of his or her intention to carry out such works.”.
Two issues are addressed in these amendments. Amendments Nos. 30 and 34 insert a new provision that a landowner must give three months' notice of his intention to carry out work on notified NHA sites. This will enhance the protection being afforded to notified NHAs and it will be an offence to contravene the requirement notice.
Amendments Nos. 36, 37 and 38 deal with the restoration of damage caused to notified NHAs. The amendments in the names of Deputies Clune and Sargent would facilitate the ordering by the Minister of the restoration of a notified NHA if there is damage prior to designation, giving it the same level of protection as a designated site. I have clear evidence from the Attorney General's office that such an amendment would be unsound. I have, however, proposed, with the clearance of the Attorney General's office, an amendment to section 21 which would allow the Minister to order the restoration of the site damaged during the notification period after it is designated. Taken in conjunction with the newly proposed section 19(2) and the existing provisions in section 20, the provisions in relation to proposed NHAs have been greatly enhanced since the publication of the Bill.
I appreciate the Minister has taken the advice of the Attorney General on this. It appears to address a number of the issues I raised, including the provision that if a sight is designated any work done must be restorative. If a sight is proposed for designation it becomes designated after six months. Any work done in that six month period must be restorative.
Yes, if there was failure to notify the Minister within the time period.
Does that mean that works can be undertaken without notification?
It depends. The Department must be notified. Discussions would then arise between the landowner and the Department. An agreed approach is required. The Minister can seek a court injunction to prevent work continuing.
I understand we will be reconsidering this in Report Stage.
These amendments may be agreed, but the Deputy can put down amendments on Report Stage.
Amendment No. 32 is an alternative to amendment No. 31 and they may be taken together by agreement.
I move amendment No. 31:
In page 20, subsection (2), line 14, after "works" to insert "and shall attach any conditions or restrictions to the order as is necessary for the conservation objectives of the natural heritage area concerned".
The purpose of the amendment is to ensure that conditions would attach to the works undertaken which will be considerate of conservation requirements of the heritage area.
The go-ahead for work to take place should be given in the context of the value of the site. The site has been designated for a reason, perhaps for many reasons. It is important to remind the owner or developer of the value of the site within the context of works to take place. This would be preferable to just stating that they should go ahead with the work for which they made an application. There is a huge temptation when one hires a bulldozer or JCB to carry on with the intended work, seeing as they have hired the machine in any event.
I ask the Minister to accept amendment No. 32 because it is reasonable. In the context of the reason the site should be protected, simply allowing permission for the work, for which an application was made, leaves the owner open to the temptation because there are no clear boundaries to the work in question and once the JCB has been hired one may as well carry on with intended work, which may not strictly comply. The idea of inserting conditions and restrictions provides a greater safeguard against work being carried out which was not sanctioned. That is the purpose of my amendment.
Do the Deputy's amendments refer to the question of the "overriding public interest"?
These amendments would oblige the Minister, when allowing works to be carried out in a designated NHA for reasons of overriding public interest, to attach conditions or restrictions to the consent in respect of the conservation objectives of the site. The original provision, which is expected to be seldom used, was inserted on foot of legal advice. Therefore I can understand Deputy Sargent would be concerned that certain conditions and restrictions might broaden the scope. However, the legal advice I received was clear. I was advised that this was the way to approach the matter.
Its use would be authorised in circumstances of discussion and every effort would be made to minimise any damage to natural heritage. It is not appropriate to legislate for the attaching of conditions which would negate the consent being given. I am told that the wording here, "over riding public interest", mirrors the wording used in the regulations for habitats. That is the reason for this particular reference.
Can the Minister place restrictions regarding how they will be carried out? In other words, will the works be carried out neatly with the least possible damage to the rest of the site? How can the Minister deal with that situation and what powers or provisions are there in place under the Bill to assist in that regard?
This would be approached by way of consultations and discussions. As a result of such discussions, a decision would be sought on how to approach it.
Could the Minister state, for instance, that as this was an important area the works would adhere to the quality of the protected site? At that stage would she have influence on the works? I wanted to ensure that the works would not be given the go ahead without adhering to the particular characteristics of the site.
The words "overriding public interest" grantcarte blanche in many instances. If an application to carry out work is made and permission is granted, there is a huge temptation, considering the expense involved in hiring machinery, to go beyond the boundaries and do more work than was envisaged originally while the machine is on site. I wanted to avoid that. The tenet of the Bill should be to prevent damage rather than look to repair damage subsequently because often it is not possible to satisfactorily repair a site or a habitat once it has been damaged. For that reason I want the Minister to consider that, to avoid further damage, it would be clear what work is to be carried out and that the site is still considered very valuable for explicit reasons and all efforts should be taken to avoid damaging whatever else is of value in the habitat or site. I am just making the point again because I would bet that it will be seen as a way of getting work done by the back door, that one might apply for one type of work and then, especially if “overriding public interest” is being quoted as a reason, carry out further work in the process. If the Minister will not accept this, the responsibility will rest with her. If we do not insert this amendment, no doubt the minority will take advantage of the situation. Attaching restrictions and conditions is a way of avoiding such an occurrence.
Section 19(2) states "Where the Minister is satisfied that the carrying out of the works are necessary for imperative reasons of overriding public interest", and these words, "overriding public interest", are those used in the statutory instruments concerning the European Community's regulation on the habitats directive. Therefore it is a recognised phrase in this context. It would not be a question of anything other than having to prove that these were necessary works and that those works had to be agreed with the Minister.
I am arguing for the conditions to which my amendment refers, not for taking out the words "overriding public interest". My amendment states that:
Where the permission to carry out works is being granted undersection 19(2), the Minister shall attach conditions and restrictions to the order as is necessary for the conservation objectives of the natural heritage area concerned.
I understand the concerns of the Deputy but when I put this to the Attorney General I was given clear advice that it would not be appropriate for conditions or restrictions to be applied in this case.
Surely conditions may be attached to the method by which the work may be carried out? For instance, if earth-moving machinery must be used, one could provide for the insertion of a track in order that the ground would not be scored or damaged in gaining access to the particular point or for looking at the alternative of carrying out the work manually in order to protect the rest of the site. Surely the Minister would have powers in that regard?
This would again arise in the discussions and consultations on how to proceed with the Minister and such an approach and strategy would need to be agreed.
Would that be on a nod and wink basis?
No. I do not do business in that way.
All we seek is that the consultation would agree amodus operandi which would be set down in writing, as Deputy O’Shea wishes. Will that be the case? If so, it is close to what we seek.
I reiterate that my legal advice is that it is not appropriate to legislate for the attaching of conditions.
Do conditions not apply to planning permissions and planning notices? As the wording stands, it appears the Minister will be responsible for giving permission for the works. There will be no consultation and no meaningful way for the Minister to have an input in terms of the conservation aspects of the site, habitat or whatever. There must be some way to address this matter. If, as my colleague pointed out, it is proposed to use a track to transport machines onto a site, the Minister should have some input regarding how those machines enter the site or how they operate once they arrive. This is particularly relevant in terms of the considerations that apply in terms of conservation.
As already stated, I have been given legal advice on this matter. However, if people wish to put forward proposals I will consider them and discuss the matter further on Report Stage. I have stated on more than one occasion that the legal advice I received was to the contrary.
I know everyone respects the concept of legal advice, but certain types of legal advice can be diametrically opposed to others. In that context, there is a need to tease this matter out on the basis of the legislation itself. If the Minister is stating that consultations will take place with the person applying for works to be carried out and that these will include discussions on how the work is to be done, the machinery, size thereof, it will be permissible to use or whether the work should be done manually without the use of machinery, is it the case that agreement in this regard will be made verbally or in writing? If a written agreement formed part of the permission being granted, we would be within a hair's breadth of stating that we intend to impose conditions and restrictions on the work. To all intents and purposes, that is what we are discussing. For example, I am not sure why one could not state "I hereby give permission, subject to the following agreement, that only machinery of a certain size may be used and that the area to the east should not be touched". It is simply a case of trying to ensure that everyone knows where they stand.
I accept the Deputy's point. This brings us back to the question of the overriding public interest. As already stated, this term is used in the regulations relating to the habitats directive. However, in light of the views expressed by the Deputy we can reconsider his proposals and revisit the matter on Report Stage.
Mr. O’Shea In a case where work is deemed permissible on part of an NHA and where access to that area involves traversing another part of the NHA, surely we must ensure the protection of that which is not subject to the order for development. I refer here to instances where the remainder of an NHA may be wantonly damaged or where agreement cannot be reached on what would be the most environmentally friendly way to access a particular site.
We can discuss that issue further on Report Stage.
I move amendment No. 33:
In page 20, subsection (4)(b), line 31, to delete “should give” and substitute “has unreasonably refused to give”.
This amendment deals with the Minister refusing to give consent to carry out works in respect of a particular NHA. I am seeking to guard against a situation where the appeals process in respect of a ministerial decision should not involve a fresh start, in other words, the person making the appeal should be obliged to show that the Minister's decision was unreasonable. The process should begin with the Minister's decision and not with a "clean sheet". In my opinion this is a more effective way of dealing with appeals.
The form of wording proposed by the Deputy would lead to less clarity. The wording set out in the Bill is clear and unambiguous. The term "where the arbitrator determines that the Minister should give consent to the carrying out of the works concerned" in section 19(4)(b) is mirrored in the regulations relating to the habitats directive in decision 16(4)(b).
Mr. O’Shea The point I am making is that the appeal would be against the Minister’s decision alone and would not take cognisance of everything that went before. The term “should give” is quite ambiguous. In my opinion, the arbitrator should deal with whether the Minister has unreasonably refused to give a positive decision.
I do not see this matter in the same way as Deputy O'Shea. I cannot accept the amendment because in my opinion the wording used in the Bill clarifies the situation. Matters would be less clear if the text was amended in the way suggested by the Deputy.
We are not going to agree on this matter. I believe the appeal arises from the Minister's decision and that decision should be the basis for the appeal. The onus should be placed on the person making the appeal to show that the Minister has made an unreasonable decision. However, I will withdraw the amendment with a view to reintroducing it on Report Stage by which time I will have had an opportunity to consider in more detail what the Minister has said.
I move amendment No. 34:
In page 20, subsection (6), line 49, to delete "subsection (1)” and substitute “subsections (1) and (2)”.
I move amendment No. 35:
In page 21, subsection (1), line 29, after "been" to insert "unlawfully".
This is a drafting amendment. Section 21 deals with the restoration of land in natural heritage areas where work has been carried out. I put it to the Minister that the action should not be taken against someone who had lawfully carried out works. It is only with works carried out unlawfully that the Minister should take issue. If my amendment is accepted, section 21(1) would read:
Where works have been unlawfully carried out on land, designated as a natural heritage area under section 18, the Minister may, by direction, issued in writing, require the owner, occupier, or user of the land which is so designated, or the person who carried out or caused to be carried out the works, to restore the land in accordance with the direction.
The aim of the amendment is to correct the text of the subsection. I do not believe the Minister can take issue with people who act lawfully.
I support Deputy O'Shea's amendment. It is relevant in the context of previous debate because if works are permitted in the overriding public interest, presumably those works are lawful but to go beyond such works would be unlawful. That relates to legal advice and I presume the Minister will examine this before Report Stage. I guess her legal advice is that she should specify what works are legal. Deputy O'Shea is trying to clarify that point so that it is clear throughout the legislation.
I cannot accept the amendment. Section 15 states:
' "works" includes any activity which destroys or which significantly alters, damages or interferes with the integrity of—
(a) a site or
(b) any of its species, communities or habitats either intentionally or unintentionally . . . "
This section covers "works" adequately.
We are returning to the definition of "works" which we debated earlier. Development by local authorities is not covered by that definition. Is the Minister saying that the Minister of the day can serve a notice for works that are lawful? Does the definition of "works" stand up legally in the context of notices? I am unhappy about this because local authorities are not covered by this provision.
"Works" is defined in section 15 in Chapter 2 and the same definition applies throughout the Bill. It constitutes activities which destroy or significantly alter, damage or interfere with the integrity of site, etc., intentionally or unintentionally. That is clear.
I am not convinced this is tidy and tight but I will not pursue it any further. However, I will return to it on Report Stage.
I move amendment No. 36:
In page 21, subsection (1), line 30, after "section 18,” to insert “or where works have been carried out on land which at the time of the carrying out of such works was the subject of a notice served under section 16(2)(b) and which was subsequently designated as a natural heritage area,”.
I move amendment No. 39:
In page 21, before section 22, to insert the following new section:
"22.—Where works are carried out on land, an application undersection 21 may not be made, nor may a direction under section 21 be given, later than 10 years from the date of the carrying out of the works concerned.”.
There is a five year limitation in the Planning Acts and it is desirable to provide for a limitation period requiring the Minister to act within a reasonable period, otherwise conveyancing could become a problem. In other words, if ten years have expired after unauthorised works were carried out the Minister should not have the powers to invoke section 21.
While I appreciate the purpose of the amendment, which is to place a time limit on the power to order restoration, the amendment could potentially raise more problems than it solves. In general the powers to order the restoration of an NHA would not be invoked after such a long period as ten years. However, inserting a provision concerning the time when works are carried out could lead to spurious argument about the time works were carried out in the effort to evade restoration. That would be a difficult issue to deal with if this amendment were accepted.
I accept this is not an easy area to address and the Minister's point about being absolutely sure about whether ten years have elapsed presents great difficulty. At the same time, the Minister should not have powers that would last forever. There should be some limitation on the Minister's powers in this regard. I ask her to examine this before Report Stage and on that basis I will withdraw my amendment.
I move amendment No. 40:
In page 22, subsection (2)(a), line 14, to delete “Minister for Agriculture and Food” and substitute “Minister for Agriculture, Food and Rural Development”.
I move amendment No. 41:
In page 22, subsection (3)(a), line 29, to delete “and that order”.
I move amendment No. 42:
In page 23, subsection (1), line 32, after "order" to insert "or a notice served undersection 16(2)(b)”.
Section 24 provides that before doing anything likely to affect or interfere with the designated NHA Government Offices, Departments and other statutory bodies must consult me as Minister regarding the avoidance or minimising of such affect or interference and take all practical steps to avoid such affect or interference. I am extending the obligations of this provision to notified NHAs which, with other amendments, will enhance the protection afforded to them.
This is the final amendment we will discuss today.
I move amendment No. 44:
In page 31, line 34, after "regulations" to insert "which in the opinion of the Minister is fit for commercial exploitation".
Section 32 deals with the exclusion of certain wild animals. It states:
The Minister may, with the prior consent of the Minister for the Marine and Natural Resources, make regulations to provide that an animal of a species of fish or aquatic invertebrate animal specified in the regulations shall be an animal to which the provisions of this Act shall not apply.
I refer the Minister to page 10 of the explanatory memorandum and the last line of the part dealing with section 32 which states: "such exclusions will apply only to commercially exploitable species". I seek the insertion of similar terminology the word "regulations" in section 32 by including the wording "which in the opinion of the Minister is fit for commercial exploitation".
The scope of the Wildlife Acts has been broadened to comprehend all species except for specified fish or aquatic invertebrate species relevant to fishing which would be excluded under section 32. Inserting words to the effect that regulations made under section 32 would be limited to species fit for commercial exploitation would be unduly restrictive. Apart from purely commercial speciesper se, the intention is that species relevant to other types of fishing, such as sport or recreational fisheries, for example, for coarse fish, would also be listed in regulations to be made under section 32. Also, species which are not yet subject to commercial exploitation but were the subject of trials to investigate their potential for exploitation or which may become so in future may also be listed under section 32 regulations.
Can I take it that the final sentence in the explanatory memorandum relating to section 32 which states: "It is expected that such exclusions will apply only to commercially exploitable species" is factually inaccurate?
We have had discussions with the Department of the Marine and Natural Resources and with the different angling groups and they seem to be very happy with the approach we are taking in the Bill.
I will withdraw the amendment with a view to coming back to it.
I give committee members notice that it is proposed to recommence Committee Stage of the Bill at 2.30 p.m. next Tuesday and 2.30 p.m. on Wednesday, if necessary.