SELECT COMMITTEE ON TRANSPORT debate - Wednesday, 18 Jun 2008

Deputy Thomas P. Broughan

I move amendment No. 95:

In page 61, between lines 13 and 14, to insert the following subsection:

"(7) Documents subject to legal professional privilege shall not be liable to production under this section.".

We have inserted this amendment into a number of Bills dealing with the production of documents. The amendment seeks to ensure the authorised officer's powers are constitutional. The Minister informed the Seanad that the amendment was not necessary and that it was not used in other legislation. My legal advice is that this is not correct. The Labour Party spokesman proposed it in section 17 of the Irish Medicines Board Bill, in sections 96 and 131 of the Garda Síochána Act 2005 and in section 16 of the Central Bank and Financial Services Authority of Ireland Act. It is just a small point. We want to ensure that legal offices are privileged. One's lawyer must be privileged. These are issues that could lead on to serious matters. This has been debated in tribunals and elsewhere.

Deputy Noel Dempsey

I agree with the Deputy that legal professional privilege is something which must be protected. However, my legal advice is that it does not require specific mention in each Act for that protection to exist. Precedent case law and the Constitution already provide the protections sought. Section 78(5) empowers authorised officers to require transport operators and authorities to produce documents and records for inspection within 21 days at a minimum. It does not authorise a raid-type of scenario where documents are seized on the spot. I accept that specific provision for legal professional privilege has been made in particular instances in some recent legislation. However, the final say on that matter is generally given over to the courts. Another aspect is there will be time with the 21-day notice period for legal arguments to be made in the event there is a dispute as to what documents might be considered privilege and for the courts to decide the issue, I do not think it is necessary in this instance. The Deputy has other legal advice and I know there are differing views. I cannot accept the amendment as it stands because it is very specific. I will consult with the Parliamentary Counsel to see if there is any harm in including it on Report Stage.

Deputy Thomas P. Broughan

On that basis I will withdraw the amendment.

Deputy Thomas P. Broughan

I move amendment No. 96:

In page 69, between lines 3 and 4, to insert the following subsection:

"(3) The DTA shall not have the power to make any further comments on the adaptation of the development plan that has been decided by the elected members of the local authority subject to the Planning and Development Act 2000.".

The Minister and his officials did considerable work trying to come up with this chapter covering sections 81 to 95, inclusive, of the Bill. The Bill was originally supposed to have been ready and then there was a move back to integrated land and transport planning, which everybody welcomed in general terms. However, there are concerns among our local representatives about the amendments made to county plans and regional plans. One of the key powers local authority members have is the power to make a plan. Variations to plans, etc., allegedly got people into trouble and all kinds of issues have arisen from that. However, in general terms, local authorities rightly see it as their prerogative to make a plan for their districts.

People are not clear what happens if the DTA rejects a local authority plan on the basis that the transport aspect was not fully addressed. The Minister will recall the issue regarding the village of Kilbride, which is in his county. It is a famous place in south-east Meath with which I have some ancestral connections. In that neck of the woods a developer could propose to cover the area with houses, apartments and duplexes, get DTA approval and then advise Meath County Council that it must accept his plan. In other words, the transport function is proposed first and used as an excuse for development.

There are clear examples in my constituency like the Northern Cross area where there will be a big new urban district with high-rise buildings. The big problem with it, as I believe I said on Second Stage, is that we have no fixed line public transport. That was the way I thought this would work and from my reading of the Bill that will be the position. In that regard the Minister has come close to getting it right.

However, there is grave concern that the outcome could be the opposite. A developer could identify a part of south-east Meath as being ideal for a public transport network and on that basis propose a high-rise development. Our local authority members are telling me this will take away their power and completely demoralise local authorities.

My amendment proposes that, "The DTA shall not have the power to make any further comments on the adaptation of the development plan that has been decided by the elected members of the local authority subject to the Planning and Development Act 2000." In other words, the local authority would consult the DTA. The local authority members would then make up their minds. The only person who could then stop them would be the Minister for the Environment, Heritage and Local Government, as Deputy Roche did in the previous Administration, when he overturned the plan made by Laois County Council. The Minister, Deputy Dempsey, might have done the same when he was Minister in that Department in cases where he felt local authorities were acting ultra vires. My amendment is an attempt to protect this key power of local authorities to make their own plan.

There was the recent case with Fingal County Council and the metro north corridor. The concern I am hearing is that people might propose a development on the basis that they could provide the public transport. In other words, they are putting the cart before the horse. My party's local authority members want to have the final say subject to the Planning and Development Act 2000. Even if the Minister will not agree to accept this amendment, is there any way he can give certainty to local authority members about that key power they have?

Deputy Noel Dempsey

The Bill as it stands does exactly what the Deputy is trying to achieve. I was very careful about this. The Deputy will be aware that I have a certain familiarity with the Planning and Development Act 2000, having spent approximately three years working on it and bringing it through the House. What the Deputy is concerned might arise cannot happen and this is provided for in the Bill. Section 31C provides that the Dublin transport authority can make a submission on whether a draft development plan is consistent with the authority's transport strategy. That is all it can do although it would be nice if a draft development plan was going to be consistent with the transport strategy.

While I know the Deputy is not being parochial about the matter, the development plans in the area he mentioned and in all the other areas in the GDA area are created in advance. A developer could not decide to prepare a beautiful public transport plan in the middle of the countryside and ignore a local authority's development plan. The development plan is a matter entirely for the local authority members with their managers. When the next cycle comes around they will formulate a draft development plan. At that stage the Dublin transport authority has a right of consultation. It will consider the plan and may recommend it is unacceptable on the basis that the council is ignoring what the DTA has already provided for from a transport point of view.

Deputy Thomas P. Broughan

Historically development tends to follow transport infrastructure. In my constituency and in the west of Dublin areas close to the M50 are undergoing considerable residential and commercial development, including places like Charlestown. If we build the outer orbital road, we can take if for granted that there will be development around it. Is there not a sense that the fear is justified? A developer might propose to the DTA having a Luas line out to Meath and on that basis make an application to the local authority.

Deputy Michael Kennedy

It should stop at Balbriggan.

Deputy Thomas P. Broughan

The Minister knows the point I am making. I am not sure if the Deputy has heard such fears.

Deputy Noel Dempsey

While that is a possibility, it is more likely as is happening in County Meath, that people know the rail line will come as far as Navan. The local authority has its development plan including certain growth centres permitting high-density development in Dunboyne, Dunshaughlin and Navan. It is up to the local authorities to plan that in advance. Limited development is being permitted in other towns around the county. That is the correct approach. I accept what the Deputy is saying. I specifically took this approach because the local authorities should take control of their own development and not be developer-led.

Deputy Fergus O’Dowd

That is the critical point.

Deputy Noel Dempsey

Yes, and that is democracy. We must trust them at this stage. We would all be committed to local democracy. We talk about trusting in local authorities and sometimes we despair because of some of the decisions that are made. The amendment the Deputy has proposed is not necessary. When the consultation period has come to an end and the draft development plan has been put in place, the Dublin Transport Authority will have the power to make a comment. It can declare that it finds or does not find the plan to be consistent with the transport strategy. I hope it will deem it to be consistent in 99% of cases. That will be the end of the matter in such cases. If it decides that it is inconsistent, it will not be the responsibility of the council which may have decided to ignore the transport strategy to adjudicate on the matter. It will be up to the Minister for the Environment, Heritage and Local Government, as the Minister responsible for the proper planning and development of the area, to make a determination on it. The reverse is true in some cases.

I do not disagree with what the Deputy is trying to achieve. The current wording of the Bill will ensure it does not interfere with the right of councillors to make the final decisions which they consider to be in the best interests of planning and development in their local areas. I strongly defended that right when the Planning and Development Act 2000 was being drawn up. Councillors do not always get it right. I do not think they are always knaves in such circumstances. However, I accept genuine mistakes can be made at various times.

Deputy O'Dowd has presented his concerns fairly. We can assure councillors that this legislation fully takes into account the primacy of local authority members in making development plans. The Dublin transport authority will not be able to dictate to them how they should compile such plans. The Minister for the Environment, Heritage and Local Government will have that power, as he has at present.

Deputy Fergus O’Dowd

This is an important issue. I agree with the Minister that transport plans must have primacy. We need to provide for effective transport facilities for everyone. Public transport is a key part. If adequate transport services are planned and provided, we are more likely to have good development than bad development. The services provided in east Meath are unbelievable. Local authority members gave planning permission for residential developments which were then completed by builders, but the necessary road infrastructure was not provided. As the Minister knows, people are unhappy with this. The Bill will improve matters somewhat.

I would like to raise another matter under section 95. I am concerned about what will happen in adjoining local authorities, one of which is in the Dublin transport authority's area and the other is not. It is proposed to construct a new bridge east of Drogheda. As it is difficult for people to go through the town due to its serious traffic levels, an eastern bypass will be needed at some stage. If Meath County Council were to propose such a scheme, it would be funded under the Dublin transport authority. If Louth County Council were to propose it, however, it would not be funded. Is that not part of the problem? If the common good dictates that a new bridge is needed, it will not be funded, unless it is developed by a local authority in the Dublin transport authority area.

Deputy Noel Dempsey

It is not necessarily the case that it will not be funded.

Deputy Fergus O’Dowd

How do we get the bridge?

Deputy Noel Dempsey

I do not have an answer to that question for the Deputy. The boundary has to be drawn somewhere.

Deputy Fergus O’Dowd

Of course.

Deputy Noel Dempsey

In practical terms, if a bridge is needed, roads will have to be built to serve it at the Louth and Meath ends.

Deputy Fergus O’Dowd

I am concerned about how it will be funded.

Deputy Noel Dempsey

I understand.

Deputy Fergus O’Dowd

The bridge is part of the transport strategy. That is the key.

Deputy Noel Dempsey

The part of the project in the Louth County Council area would be dealt with by the Department of Transport, under the——

Deputy Fergus O’Dowd

The Department will not provide any money for it.

Deputy Noel Dempsey

There is every possibility that it will. If the Dublin transport authority decides that an eastern bypass of Drogheda is needed to alleviate traffic difficulties, it can make money available from its budget for such a project. A bridge would not be built without funds being provided for Louth County Council to develop suitable roads at the far side of the river. The council would have to make a submission to the Department of Transport, asking for funding to continue the roadway in its administrative area.

Deputy Fergus O’Dowd

Does the Minister agree that there is a weakness?

Deputy Noel Dempsey

I accept that there is. We will have to work on it. Such co-ordination will be possible when we have established the national transport regulator. For some time funding has been made available within local authorities under the non-national roads programme for strategic routes. Projects such as the one mentioned by the Deputy qualify under that scheme.

Deputy Fergus O’Dowd

Where will responsibility lie for the proposed Dublin outer orbital route?

Deputy Noel Dempsey

It will be pursued by the National Roads Authority.

Deputy Fergus O’Dowd

It is not mentioned in the national development plan.

Deputy Noel Dempsey

Not currently.

Deputy Fergus O’Dowd

Will the Dublin transport authority have a view on the matter?

Deputy Noel Dempsey

I am sure it will.

Deputy Fergus O’Dowd

If we assume that the authority's view will be that the outer orbital route is essential, will it make the ultimate decision, or will it be made by the NRA? If the authority decides that it is needed, even though it is not Government policy at present——

Deputy Noel Dempsey

It is Government policy.

Deputy Fergus O’Dowd

It is not included in the national development plan.

Deputy Noel Dempsey

It is not included in it.

Deputy Fergus O’Dowd

What will happen in such circumstances?

Deputy Noel Dempsey

The current national development plan will be reviewed in the run-up to 2011 and during that year. The projects outlined in Transport 21 will continue to be pursued. If the outer orbital route becomes a priority, money will be provided for it under the new national development plan.

Deputy Fergus O’Dowd

Who will decide if it is a priority? Will it be the Dublin transport authority?

Deputy Noel Dempsey

The Government will make the final decision. The National Roads Authority, the Dublin transport authority and others can make submissions.

Deputy Fergus O’Dowd

If the Dublin transport authority believes a strategic infrastructural project is essential, it will not happen, unless the Government agrees to it.

Deputy Noel Dempsey

The same can be said about all of the strategic routes developed by the National Roads Authority. That is the way it operates. The Dublin transport authority will advise the Government and make suggestions.

Deputy Fergus O’Dowd

The Dublin transport authority is to be a higher body than the National Roads Authority which will be under its wing to some extent. What effect——

Deputy Noel Dempsey

The National Roads Authority is responsible for the provision of national routes.

Deputy Fergus O’Dowd

I understand. I am not arguing about that.

Deputy Noel Dempsey

No.

Deputy Fergus O’Dowd

If it does not want to do so, the Government does not have to take on board a recommendation from the Dublin transport authority that certain infrastructure such as a road be built.

Deputy Noel Dempsey

The Government makes its own decisions. If the Dublin transport authority recommends an infrastructural project as a matter of urgency and the National Roads Authority agrees, the Government will not ignore that advice.

Deputy Fergus O’Dowd

It will not ignore it.

Deputy Noel Dempsey

No.

Deputy Fergus O’Dowd

It is ignoring it now.

Deputy Noel Dempsey

No, it is not. It is a priority.

Deputy Michael Kennedy

The proposed new section 31C(2) of the 2000 Act refers to documents which will be sent "to the Minister and the Minister for Transport". Is that duplication?

Deputy Thomas P. Broughan

As the Act which is being amended relates to planning, the first Minister referred to is the Minister for the Environment, Heritage and Local Government.

Deputy Noel Dempsey

This section of the Bill is making changes to the Planning and Development Act 2000.

Deputy Michael Kennedy

We are referring to the Minister for the Environment, Heritage and Local Government.

Deputy Noel Dempsey

In some cases, the legislation relates to both Ministers.

Chairman

Is the amendment being pressed?

Deputy Thomas P. Broughan

I seek closure in order that we can reassure councillors. I will try again on Report Stage.

Deputy Noel Dempsey

I move amendment No. 97:

In page 71, to delete lines 1 to 5 and substitute the following:

"(a) classes of development, including strategic infrastructure development, requiring the submission of a transport impact assessment in respect of applications for development, and”.

Deputy Thomas P. Broughan

What is the impact of this amendment?

Deputy Noel Dempsey

It inserts a new provision in the Planning and Development Act 2000, outlining the Dublin Transport Authority's role in land use planning in the greater Dublin area.

Chairman

Amendments Nos. 98 to 100, inclusive, are related and may be discussed together.

Deputy Noel Dempsey

I move amendment No. 98:

In page 74, subsection (1), between lines 44 and 45, to insert the following:

"(b) The RPA may, with the consent of the Minister, designate for employment by the Authority any person employed by the RPA and whose principal duties relate to a function assigned or transferred to the Authority under this Act, or to be so assigned or transferred to the Authority.

(c) The RPA shall not designate an employee under this subsection, without having notified in writing the employee and any recognised trade union or staff association concerned, of its intention to do so and considered any representations made by him or her or by them or by any of them, in relation to the matter within such time as may be specified in the notification.

(d) The Authority shall accept into its employment a person designated under subsection (1)(b) for employment by it.

(e) Acceptance into the employment of the Authority of a person designated under this section shall have effect on such day or days as may be specified by the Minister after consultation with the Authority.”.

Under the Bill certain functions will transfer from the Railway Procurement Agency to the Dublin transport authority. When the relevant commencement order is made under section 4, responsibility for the establishment and implementation of the integrated ticketing scheme to the greater Dublin area will transfer from the RPA to the DTA in accordance with section 58. This amendment provides that the designated staff in the RPA working on integrated ticketing will, with the consent of the Minister, be assigned or transferred to the DTA while retaining their terms and conditions of employment.

The amendment also provides for prior consultation with staff who are to be transferred to the DTA and their trade union or staff association. Any RPA staff to whom the provisions of section 48 apply, that is, the procurement of metro and light rail passenger services, would also be covered by this amendment if the relevant function is directly assumed by the DTA. The amendment, therefore, provides for the protection of employees in the circumstances outlined.

Deputy Noel Dempsey

I move amendment No. 99:

In page 75, subsection (3), line 6, after "day" to insert the following:

"or such day or days as may be specified by the Minister under subsection (1)(e)”.

Deputy Noel Dempsey

I move amendment No.100:

In page 75, subsection (5), line 29, after "DTO" to insert the following:

"or, in the case of persons designated in accordance with subsection (1)(b) means service before such day or days as may be specified by the Minister under subsection (1)(e)”.

Deputy Noel Dempsey

I move amendment No. 101:

In page 75, before section 111, but in Part 7, to insert the following new section:

111.—(1) Section 8(1) of the Act of 1958 is amended by inserting after paragraph (c) the following:

"(cc) the provision of parking facilities for vehicles on land belonging to or occupied by the Board, including charges for failure to comply with bye-laws made under section 22(1)(ee) of the Act of 1950,”.

(2) Section 128 of the Railway Safety Act 2005 is amended by deleting paragraph (a).”.

This is a technical amendment correcting a drafting error in the Railway Safety Act 2005, which inserted a by-law making provision relating to car parking into section 20 of the Transport Act 1950. The provision should have been inserted into section 8 of the Transport Act of 1958.

Deputy Fergus O’Dowd

What is the significance of the change?

Deputy Noel Dempsey

The by-law was not in the proper place.

Deputy Fergus O’Dowd

What will be the effect of the amendment?

Deputy Noel Dempsey

The by-law is being inserted in the correct section of the 1958 Act.

Deputy Fergus O’Dowd

It is not legally effective at present?

Deputy Noel Dempsey

It was inserted into a section of an Act that had been deleted.

Deputy Fergus O’Dowd

Is it the current position that it is not possible to legally collect a parking charge in the event that it is not paid? Is the amendment required to enable the collection of such charges?

Deputy Noel Dempsey

I will revert to the Deputy on the matter.

Deputy Noel Dempsey

I move amendment No.102:

In page 75, before section 111, but in Part 7, to insert the following new section:

112.—Section 22(1) of the Act of 1950 (as amended by section 128(b) of the Railway Safety Act 2005) is amended by substituting for paragraph (h) the following:

"(h) generally for regulating, subject to any statutory provisions in that behalf--

(i) the travelling upon or use of its vehicles or craft (including a requirement to travel with a valid ticket or pass and the issue of such), and

(ii) the working of transport services provided by the Board," ".

This amendment inserts a new section amending the provisions in the Transport Act 1950 regarding CIE's by-law making powers. The amendment has been included at the suggestion of the Parliamentary Counsel to enhance consistency between CIE's by-law making provisions and those of the Railway Procurement Agency. It is an exact replica of a provision on the RPA's by-law making powers, as amended by section 134 of the Railway Safety Act. The purpose of the amendment, therefore, is to establish consistency regarding the two agencies.

Deputy Noel Dempsey

I move amendment No. 103:

In page 76, line 23, to delete "apply." and substitute the following:

"apply,

to the appointment or removal.".

The amendment amends provisions in the Transport (Re-organisation of Córas Iompair Éireann) Act 1986 relating to the articles of association of the CIE subsidiaries. Subsection (2)(a) was inserted into section 11 of that Act, disapplying certain provisions of the Companies Act 1963 in relation to the appointment and removal of directors and auditors. The additional text contained in this amendment is included to make clear that subsection (2)(a) only applies to the provisions in the Companies Act relating to the appointments and removals and does not have wider implications.

Deputy Thomas P. Broughan

The Minister will appoint the boards of the three companies.

Deputy Noel Dempsey

Yes.

Chairman

Amendments Nos. 104 to 107, inclusive, are related.

Deputy Thomas P. Broughan

I move amendment No. 104:

In page 76, line 32, to delete "Notwithstanding any enactment, other rules of law or, where" and substitute the following:

"(1) Valuable public lands owned by CIE must be retained for the purpose of public transport services.

(2) Notwithstanding any enactment, other rules of law or, where".

The two amendments in my name are slightly contradictory. My concern in this regard relates to valuable public land. The Minister and Chairman will be familiar with the position vis-à-vis Ceannt Station. The purpose of the amendment is to ensure land banks available to CIE or its subsidiaries are retained for public transport development. The key point is that, notwithstanding any enactment and other rules of law, public lands held by CIE would continue to be used for public transport.

Some of the representations I received on the land banks suggested the provisions provided for in amendment No. 104 should only apply to land greater than €10 million in value to allow CIE companies to act with reasonable commercial discretion with regard to lands with a value of less than €10 million. Amendment No. 106 would enable the companies to do so.

The key amendment is amendment No. 104. My colleague, Deputy Michael D. Higgins, has raised the issue of Ceannt Station and adjacent lands near Eyre Square on several occasions. There are other examples, including in the Dublin docklands, of CIE entering into major agreements that involved the company becoming a developer to raise funds for public transport. The public transport function must be the key business of CIE, Dublin Bus, Bus Éireann and Irish Rail and this requirement should be spelled out in the legislation for disposals.

Deputy Noel Dempsey

I do not disagree that the key business of the companies in question should be the provision of public transport services. Nevertheless, it could inhibit their effectiveness in providing these services if they were precluded from using the State assets at their disposal for purposes other than public transport, even in cases where they do not need them. It would not be wise to accept such an amendment, as it could have the exact opposite effect to what the Deputy desires and has so ably advocated in terms of providing, and being able to provide, the very best public transport system. I, therefore, ask him to withdraw it, reconsider it and table another on Report Stage.

Section 112 is to provide that CIE shall require ministerial sanction for the disposal of land or property and also to enable the Minister to require CIE to dispose of land or property at an asset value specified in regulations. The Minister will obviously be required to consult the Minister for Finance before exercising the power of consent or direction.

Given the extent of the land and property owned by CIE, it is considered appropriate and prudent to allow for flexibility in specifying asset values above a certain value. My amendments will allow the Minister scope to specify different asset values based on such considerations as location and nature of the land or property. For example, it might be considered appropriate to specify a higher asset value in urban areas than in rural areas. The approach I am proposing takes account of what the Deputy is suggesting but also of the reality that the appropriate asset value will change during the years. It is not a good idea to specify the asset value in legislation because one would need to amend it, when required, by primary legislation.

Decisions on the disposal of land and property owned by CIE need to be made on a case by case basis rather than in the way proposed. I ask the Deputy to reconsider and withdraw his amendments.

Deputy Noel Dempsey

I move amendment No. 105:

In page 76, line 40, to delete "at" and substitute "in excess of".

Deputy Noel Dempsey

I move amendment No. 107:

In page 76, between lines 40 and 41, to insert the following subsection:

"(2) Regulations made under subsection (1) may specify different asset values for different classes of assets or for different purposes.”.

Chairman

Amendments Nos. 108 to 112, inclusive, are to be discussed together.

Deputy Noel Dempsey

I move amendment No. 108:

In page 77, between lines 2 and 3, to insert the following subsection:

"(3) Section 13(1) of the Act of 2001 is amended by inserting "(including fares, rates or tolls)" after "make such charges".".

This is the first of a series of amendments to the Transport (Railway Infrastructure) Act 2001. It provides clarification that the power conferred on the Railway Procurement Agency by section 13 of that Act to charge for services it provides includes the power to set fares and levy rates and tolls. While the Railway Procurement Agency has advised me it is satisfied that section 13 could not be interpreted in any other way, the amendment is to clarify and put the matter beyond doubt. It is availing of the legislative opportunity presented by the Dublin Transport Authority Bill to tidy the drafting in section 13 of the 2001 Act with the clearer use of language. It is clarifying the language used and is not absolutely necessary.

Deputy Fergus O’Dowd

Is the Minister stating the agency does not have the power to charge for its services?

Deputy Noel Dempsey

It does but considers it needs to make it more explicit.

Deputy Fergus O’Dowd

Charging for services is one matter but the Minister referred also to fares, rates and tolls.

Deputy Thomas P. Broughan

Who is the final arbitrator? The Railway Procurement Agency obviously has a role in determining Luas fares but the Dublin Transport Authority will be the final arbitrator.

Deputy Noel Dempsey

I understand this issue was raised by the parliamentary draftsman when preparing the Bill. He considered it needed clarification.

Deputy Fergus O’Dowd

What is the purpose of the reference to "tolls"? Rates would be paid by those occupying agency property.

Deputy Noel Dempsey

The reference to "tolls" is lifted directly from CIE legislation. CIE has the power in question. The legislation does not refer to road tolls.

Deputy Fergus O’Dowd

It is a toll of some sort.

Deputy Noel Dempsey

I presume it is a reference to tolls for carrying goods and people.

Deputy Fergus O’Dowd

Will the Minister explain it further on the next occasion?

Deputy Noel Dempsey

Yes, I will seek clarification.

Amendment No. 109 is a relatively straightforward amendment to section 20(12) of the 2001 Act which substitutes "10 years" for two consecutive terms as the maximum a person other than the chief executive can serve as a member of the Railway Procurement Agency.

Deputy Thomas P. Broughan

Is that a fixed provision in semi-State agencies?

Deputy Noel Dempsey

It is not but does apply in this case. It is a good idea.

Deputy Thomas P. Broughan

Is the Minister trying to create a rule that the term would not exceed ten years?

Deputy Noel Dempsey

Yes.

Amendment No. 110 repeals section 28 of the 2001 Act which provides, in summary, for the chief executive and other members of the Railway Procurement Agency to make declarations of interests to the serving Minister and for certain staff and consultants hired by the agency to make similar declarations of interests to the Chairman. However, there are two other separate codes, one legislative and the other administrative, under which members of the agency declare their interests. We have mentioned them before. The first is the Ethics in Public Office Act and the second is the Code of Practice for the Governance of State Bodies. Of the three separate codes, the Ethics in Public Office Act provides the most comprehensive statutory framework for the regulation of disclosure of interests. Although all three codes are founded on the presumption of integrity, the Ethics in Public Office Act provides for a range of measures to underpin compliance that are now well established. There is an argument at this stage for relying solely on the Ethics in Public Office Act regarding the disclosure of interests. For the time being, it is also provided for in the code of practice and, therefore, must be complied with. Clearly, requiring members of the Railway Procurement Agency to declare their interests under three separate codes is overkill. I am concerned that we do not maintain unnecessary bureaucratic procedures, particularly where similar procedures are catered for elsewhere. The amendment will remove the requirement for a declaration of interests under section 28 of the 2001 Act but the declaration of interests under the ethics in public office legislation plus the code of practice still apply.

Deputy Fergus O’Dowd

In other words, instead of saying the same thing three times, one is saying it once.

Deputy Noel Dempsey

Twice.

Deputy Fergus O’Dowd

The key point is that the declaration must be made in any case under the most important mechanism, that is, the Ethics in Public Office Act. There is, therefore, no diminution in public availability of information.

Deputy Noel Dempsey

No.

Deputy Fergus O’Dowd

There is no change in that regard. In that case why is the Minister getting rid of the provision?

Deputy Noel Dempsey

It is unnecessary for members to have to make three separate declarations. It is probably unnecessary to have them make two.

Deputy Fergus O’Dowd

The Minister mentioned contractors. What is the difference between contractors and employees?

Deputy Noel Dempsey

Under the Ethics in Public Office Act, provision is made for annual declarations for members of the agency. Under the code of practice, provision is made for declarations of employment or other business interests. There is a statutory obligation under section 29 of the 2001 Act for the chief executive and members of the agency, and staff, not to take any part in any consideration of matters in which they have an interest.

Contractors might include consultants brought in to advise on particular aspects of service provision. If there is a direct conflict of interest, they are supposed to declare it.

Deputy Fergus O’Dowd

That is to continue.

Deputy Noel Dempsey

Yes. Amendment No. 111 puts beyond doubt any issue relating to the planning process for a railway order and more general planning codes highlighted in judicial review proceedings in 2006 which were settled out of court.

Deputy Fergus O’Dowd

The Minister is essentially trying to introduce certainty after the event.

Deputy Thomas P. Broughan

Is this just dotting the i's and crossing the t's?

Deputy Fergus O’Dowd

What was the legal principle at stake?

Deputy Noel Dempsey

Part IV of the Planning and Development Act 2000 contains provisions relating to protected structures, architectural conservation areas and areas of special planning control, including special provisions govering developments which impact on such areas. On the other hand, section 38 of the Transport (Railway Infrastructure) Act 2001, as inserted by the Planning and Development (Strategic Infrastructure) Act 2006, provides that railway works which are authorised in a railway order granted by An Bord Pleanála are exempted development for the purposes of the 2000 Act. The essential question which arose was whether the exemption in section 38 of the 2001 Act was all-embracing, providing a parallel structure of statutory environmental impact statements for railway works which replicated the normal planning process, including respect for architectural heritage. The legal advice provided for the Department is that section 38 of the 2001 Act does provide an all-embracing exemption for railway works from the provisions of the planning code. The specific provisions in the latter relating to protected structures and architectural conservation areas do not apply. That is not to say issues relating to architectural heritage and conservation are not considered under the planning process for railway orders. The amendment ensures there is only one planning process for railway orders.

Deputy Fergus O’Dowd

If a new railway line is to be put through a listed building area, would it require planning permission?

Deputy Noel Dempsey

A question arose as to whether it did. It was the subject of legal proceedings but the matter was settled out of court. The legal advice is clear that one planning process is all that is needed.

Regarding buildings of architectural merit, section 37(2)(e) of the 2001 Act states a railway order application must be accompanied by an environmental impact statement. Section 39(1)(b) states “an environmental impact statement shall contain a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects”. A listed building would be covered by this provision. The section provides for the following: the data required to identify and assess the main effects that the works will have on the environment; an outline of the main alternatives submitted by the applicant and the reasons for the chosen approach, taking into account the environmental effects; a description of the aspects of the environment likely to be significantly affected by the works, including the architectural and archaeological and cultural heritage; and a description of the likely significant impacts, positive and negative, direct or indirect, permanent or temporary, of the proposed works on the environment. These are included in the railway order application and must be considered by the board before it makes its decision. It is a complete regulatory code. While a doubt arose as to whether this process needed to be done twice, the amendment removes that doubt and ensures there is only one process.

Deputy Thomas P. Broughan

If we have to remove the statue of Daniel O'Connell or Parnell or the Spire, the amendment covers it.

Deputy Noel Dempsey

Yes, we are covered.

Amendment No. 112 removes the need for An Bord Pleanála to seek the consent of the Minister when granting acquisition rights on public roads to CIE or the RPA in a railway order.

Deputy Fergus O’Dowd

I am still trying to come to grips with the issue.

Deputy Noel Dempsey

I will arrange a departmental briefing for the Deputy before Report Stage.

Deputy Fergus O’Dowd

Yes, that would be good. I do not want to make a mistake.

Deputy Noel Dempsey

We had this discussion with the planning and development Acts and when considering whether An Bord Pleanála should take into account health matters. Having two bodies making adjudications is duplicating the work.

Chairman

Is there a possibility that the Minister would consider extending the railway order legislation to cover QBCs?

Deputy Noel Dempsey

The issue merits attention and the Department is examining it. It would help in preventing the QBC planning process being held up indefinitely.

Deputy Noel Dempsey

I move amendment No. 109:

In page 77, between lines 2 and 3, to insert the following subsection:

"(3) Section 20 of the Act of 2001 is amended by substituting for subsection (12) the following:

"(12) A member of the Agency (other than the chief executive) shall not serve more than 10 years in total.".".

Deputy Noel Dempsey

I move amendment No. 110:

In page 77, between lines 2 and 3, to insert the following subsection:

"(3) Section 28 of the Act of 2001 is repealed.".

Deputy Noel Dempsey

I move amendment No. 111:

In page 77, between lines 2 and 3, to insert the following subsection:

"(3) Section 38 of the Act of 2001 is amended by substituting for it the following:

"38.—(1) Each of the following shall be exempted development for the purposes of the Act of 2000:

(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Board and specified in a railway order or of any incidental or temporary works connected with such development;

(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order.

(2) Part IV of the Act of 2000 does not apply and is deemed never to have applied to developments specified in subsection (1).".".

Deputy Noel Dempsey

I move amendment No. 112:

In page 77, between lines 2 and 3, to insert the following subsection:

"(3) Section 44(2) of the Act of 2001 (inserted by section 49 of the Planning and Development (Strategic Infrastructure) Act 2006 and as amended by section 3 of the Local Government (Roads Functions) Act 2007) is amended by substituting for paragraph (b) the following:

"(b) specify any rights in, under or over land, water or any public road, the acquisition of which is, in the opinion of the Board, necessary for giving effect to the order,”.”.

Chairman

Amendment No. 114 is consequential on amendment No. 113 and they will be discussed together.

Deputy Noel Dempsey

I move amendment No. 113:

In page 77, after line 16, to insert the following new section:

"PART 9

TRANSPORT OFFICERS

115.—(1) The Road Transport Act 1986 is amended--

(a) in section 15, by substituting for subsection (1) the following:

"(1) The Road Safety Authority may appoint any of its officers, or such officers of the Minister seconded to serve with the Authority, to be transport officers for the purposes of section 16.",

(b) in section 17, by substituting “The Road Safety Authority may bring” for “The Minister may bring”, and

(c) in section 18(1)(c), by substituting “the Road Safety Authority” for “the Minister”.

(2) Subsection (5) of section 4 of the Road Safety Authority Act 2006 is repealed.".

I thank Members opposite for accepting this amendment. Deputy Broughan has raised this matter with me on several occasions.

It is a technical amendment to the Road Transport Act 1986 and the Road Safety Authority Act 2006 to enable the Road Safety Authority to appoint its own officers, and any officers of the Minister for Transport on secondment to the authority, to be transport officers for the purposes of road transport operations. The Attorney General has advised that the language of section 4(5)(a) of the 2006 Act, when combined with section 15 of the 1986 Act, requires legislative adjustment to clarify that the Road Safety Authority can appoint its own staff as transport officers. The amendment reflects this advice.

The role of transport officer is a specialised one and has two main elements. First, it concerns enforcement of road transport legislation in matters such as tacographs, drivers' hours, breaks and rest periods, the road transport working time directive, road haulage and road passenger licensing, education and advisory role to operators, drivers and other groups.

In their enforcement role, transport officers conduct regular roadside checkpoints in close co-operation with the Garda Síochána and visit the premises of operators and consigners to ensure the highest possible level of compliance with the various legislative requirements. They also participate actively in regular multi-agency enforcement operations in conjunction with other Government enforcement agencies. Amendment No. 114 is therefore a consequential amendment to the Long Title of the Bill arising from amendment No. 113.

Deputy Thomas P. Broughan

Is it certain the gap in the law that seemed to exist has been totally closed and that if they are on the roadside, they will not be powerless from now on?

Deputy Noel Dempsey

That is the intent and the advice we have.

Deputy Noel Dempsey

I move amendment No. 114:

In page 9, line 16, after "2005" to insert ", THE ROAD TRANSPORT ACT 1986".

Chairman

This is excellent legislation. Will the Minister clarify the position as regards the rest of the country and the need for some form of integrated transport authorities in the regions? Is legislation in this regard to be brought forward, even in the shape of administrative guidelines? In centres such as Galway it is ludicrous that there is a transport committee in the city, but no reference to the county or the counties around it. The same applies in places such as Limerick where there is a quality bus corridor on the county road, which is the boundary of the city, and yet there has been a five-year delay as regards it going through the city on the Ennis Road. There is an urgent need for this type of legislation to be introduced in some shape or other for the rest of the country.

Deputy Noel Dempsey

I believe the Chairman was present at one of the meetings I had in this regard with local authorities, in Galway. The local authorities plus other stakeholders and agencies that operate in these cities should be talking to one another and not need legislation.

The first priority has been to get this DTA Bill enacted by the Oireachtas to get the authority set up. I thank everybody for their co-operation in that regard. The next stage will be the amendment of the 1932 Act to try and bring it up to date. This will facilitate what the Chairman is talking about.

The third stage involves a national transport regulator. We have a commitment to examine that and move it forward. That is the sequence of events. The fact that this Bill, hopefully, will be enacted prior to the summer has certainly advanced the timetable for all of those initiatives. I do not want to be unfair to officials or anybody by giving a timescale at this stage. When I came into the Department, this Bill was largely drafted, then issues arose, some of which Deputy Broughan and others adverted to at the time, and it took longer than I had expected. However, I am determined that once we have started this process we need to continue it and I do not intend to delay it for any period of time.

Chairman

In the context of those other items of legislation, the situation is no different to Dublin in the regions. This legislation was necessary and very well executed because agencies would not get together. It is no different in the other parts of the country. Administrative guidelines, if not legislation, are necessary and that came across clearly in the opinions heard from some county managers.

Deputy Fergus O’Dowd

There are some issues that I am not happy with. Perhaps now is the time to raise this.

Chairman

The Deputy can mention what he wants now so that it may be addressed on Report Stage.

Deputy Fergus O’Dowd

I just want clarity as regards the PSO. Will we have full clarity on the PSO routes, the numbers carried, costs and so on — total transparency? The other questions are concerned with the role of the DTA representatives within the authority, the conflicts of interest that may arise, resolution of disputes — particularly between the NRA, RPA, CIE, Iarnród Éireann and within that generic area.

Deputy Noel Dempsey

I have given an undertaking to come back and brief the Deputy as regards those areas.

Deputy Fergus O’Dowd

The PSO is very important. Will the Minister promise to clarify the position in that regard?

Deputy Noel Dempsey

We shall try to provide whatever type of clarification the Deputy needs.

Deputy Thomas P. Broughan

There are still concerns as regards the democratic mandate of this body. We do not want another HSE on wheels. I should like the Minister to address more strongly the issue of representation, either at local council level, or provide some democratic mandate for it through the mayor and, second, responsibility to the Oireachtas. We should be able to achieve that. Nobody expects a Minister to have all the facts and figures but it is critical for him or her to be able to talk about policy. I should like the Minister to address those two key issues on Report Stage.

Deputy Fergus O’Dowd

On that very point, we opposed the Bill on Second Stage and we are opposing the passing of it now, so I am calling for a division.

Deputy Michael Kennedy

On a point of clarification, the Minister indicated that he would give us all a briefing. When might we expect that to happen?

Deputy Noel Dempsey

In the next few days. Officials will contact Deputies, directly.

Deputy Michael Kennedy

Will it be next Tuesday or Wednesday?

Deputy Noel Dempsey

Earlier if we can.

Deputy Michael Kennedy

We are here tomorrow, but not Friday.

Chairman

Deputy O'Dowd cannot call a division now because Committee Stage is finished.

Deputy Fergus O’Dowd

If it is a technical issue, I do not understand. Not everything has been agreed or put to the committee.

Chairman

We have agreed the amendments, line by line.

Deputy Fergus O’Dowd

If that is the case, so be it. I am very unhappy with the content of a conversation I had earlier with somebody. I shall not make an issue of it. I was responsible for briefing myself, I suppose, and what happened was to the contrary. It is a misunderstanding.

Chairman

The Deputy could have called a vote on amendment No. 114, which has just been agreed.

Deputy Fergus O’Dowd

Yes, but I am questioning the whole principle. Perhaps I am wrong, and we have gone through each section. With respect, I have been absolutely misinformed on that.

Chairman

With all due respects, the situation—

Deputy Fergus O’Dowd

Whatever type of situation I am in now, so be it.

Deputy Thomas P. Broughan

The Minister and I have worked on a good deal of legislation over the years, although I have never had the privilege of being on the Government side of the table. However, we have only had one Bill——

Deputy Fergus O’Dowd

I am entitled to be properly informed. Having requested information and been assured more than once today that I could do what I wanted to do, I am now being told I cannot.

Deputy Thomas P. Broughan

We have considered the Bill for 13 hours. The staff have worked incredibly hard and I commend them.

Deputy Fergus O’Dowd

I want to make it clear——

Deputy Thomas P. Broughan

I am supporting the Deputy.

Deputy Fergus O’Dowd

We have all worked very hard.

Deputy Thomas P. Broughan

The legislation is incredibly unusual and there have been very few Bills like this one, apart from the legislation brought in by the Government to close the loophole for developers in the docklands and in all other State properties. That morning, Opposition leaders were informed by the Taoiseach only at 10.30 a.m.

Deputy Fergus O’Dowd

I pointed out at the very beginning that I had a question concerning the Title of the Bill, so technically we have not gone into that as yet.

Deputy Michael Kennedy

I suggest we accept that the Title is agreed but Deputy O'Dowd has demurred from it.

Deputy Fergus O’Dowd

I made it very clear. I wanted to be in a position when I voted against the passing of this Bill on Committee Stage. I made it clear at the outset that I was unhappy with the Title. We have not dealt with that.

Chairman

We dealt with the Title in amendment No. 114, but the Deputy can call a vote when I read it out.

Deputy Fergus O’Dowd

I want the record to show that I oppose this Bill at this stage. If that is the mechanism I must use, then I will use it.

Deputy Thomas P. Broughan

Are we voting on the Title? We voted already on the Bill.

Chairman

We are voting on the Title.

Deputy Fergus O’Dowd

I am calling a vote and that is it.

Deputy Thomas P. Broughan

Let us be clear on this. We are voting on the words of the Title of the Bill. We voted on amendment No. 114.

Deputy Noel Dempsey

Deputy O'Dowd is using the Title to vote against the Bill.

Deputy Thomas P. Broughan

I am taking it as a vote on the Title, which is what it is.

Chairman

Does Deputy O'Dowd agree?

Deputy Fergus O’Dowd

I do not want to be bloody minded about this. I am happy to take voice vote on this, but I will return to these issues later.

Deputy Thomas P. Broughan

I thank our staff and I thank the Minister for the consideration he has given to some of the amendments. I did not oppose the Bill on Second Stage, because we have been calling for it for about ten years. I am still unhappy about the democracy problem, but I do not have to vote against it on Final Stage. I also commend our colleagues from Fianna Fáil who have been with us all day. Their comments were very helpful and are appreciated. I also thank you, a Chathaoirligh.

Deputy Fergus O’Dowd

It has been a long day. Some of us will not be here next week so we will have to work out what we are going to do.

Deputy Michael Kennedy

We in Fianna Fáil should congratulate Deputy O'Dowd and Deputy Broughan for the amount of work they put in and the research they carried out. It has been a good day's work after 13 hours.

Deputy Noel Dempsey

We will try to facilitate the Deputies for our next meeting. The following week is fine. On my behalf and on behalf of the officials, I thank everybody for their co-operation and for their participation during the course of the day. When we suggested bringing this Bill forward, Members of the Opposition said they would try to co-operate, while giving it a great deal of scrutiny, which they have done. I also thank the staff for the effort they have put in, as well as the Chairman for his patience throughout the day.

Chairman

Thank you. I join you and the Opposition spokesmen in extending thanks to our staff in the committee, and to Mr. Lenihan, who came along to give us a hand. I also thank your staff for the excellent work they have done on the Bill. I thank the Opposition spokesmen for the great amount of work they put in, and I thank Deputies Kennedy and Brady who have been here all day.

SELECT COMMITTEE ON TRANSPORT debate - Wednesday, 18 Jun 2008

Dublin Transport Authority Bill 2008: Committee Stage (Resumed).

SELECT COMMITTEE ON TRANSPORT debate -
Wednesday, 18 Jun 2008