Aircraft Noise (Dublin Airport) Regulation Bill 2018: Committee Stage
SECTION 1
I move amendment No. 1:
In page 5, to delete lines 16 and 17 and substitute the following:
"(2) Part 3 and the Planning and Development Acts 2000 to 2018 may be cited together as the Planning and Development Acts 2000 to 2019 and shall be construed together as one.".
First, I will quickly comment, if I may, on the number of proposed amendments which I am bringing forward. I acknowledge at the outset that on the face of it, this might be a matter of concern for a few members. I assure the committee that nearly all of these are of a technical nature reflecting the advice of the legal drafters in the Attorney General's office.
There are a small number of meaningful changes which reflect proposals made by some Deputies in the room today for which I am grateful, and which we will come to and discuss. There are consequential technical amendments related to these.
Finally, I am tabling a small number of amendments to improve the Bill, specifically to clarify and strengthen the appeals process. I will explain these. There are also consequential technical amendments associated with these.
Overall, however, I am sticking closely to the Bill as published on substantive matters. I have to do this as it is bound by EU regulation.
Amendment No. 1 is a technical amendment to the collective citation for the Planning Acts to refer to the Planning and Development Acts 2000 to 2019, rather than 2018. As a general introductory point, the committee will have recognised that the approach to noise regulation process, public consultation, decision-making, publishing information, appeals etc. mirrors, where appropriate, the established and prudent practices which exist in normal planning. People are familiar with it and it is tried and tested.
Seeing as how the Minister raised the matter, the large number of ministerial amendments is regrettable. It is reflective of the history of the poor process with this Bill. There was an attempt to rush it through before Christmas without it being ready. We had to try to stop that. Now, at this 11th hour, most of the amendments have come from the Department. While the Minister has acknowledged it, it is still regrettable.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2
Amendments Nos. 2 and 3 are logical alternatives and will be discussed together.
I move amendment No. 2:
In page 6, between lines 6 and 7, to insert the following:
“ “Balanced Approach” means both the International Civil Aviation Organisation’s (ICAO) agreed hierarchy of measures designed to reduce the adverse impact of aircraft noise on those living in the vicinity of an airport, described as ICAO’s Balanced Approach and the recommendations for aircraft noise published in the World Health Organisation’s report Night Noise Guidelines for Europe 2018, produced at the request of the EU’s Environmental Ministers;”.
Essentially both amendments are the same but mine has a little bit extra. It proposes to insert a definition for “balanced approach” based on EU Regulation No. 598/2014. It will also include the International Civil Aviation Organisation’s agreed hierarchy of measures and the World Health Organization’s night noise guidelines for Europe 2018.
The whole purpose of the legislation is to enhance the position for those impacted by aircraft noise. The Bill is silent on the issue of health, which is one of the key reasons for this legislation. There have been substantial changes in society’s understanding of the impact of noise on human health. It would be remiss of us if we did not reflect this in the definition as one of the guiding principles to which the competent authority must pay attention.
The WHO’s 2018 environmental noise guidelines for the European region stated:
For average noise exposure, the [guideline development group, GDG,] strongly recommends reducing noise levels produced by aircraft below 45 dB, as aircraft noise above this level is associated with adverse health effects.
For night noise exposure, the GDG strongly recommends reducing noise levels produced by aircraft during night time below 40 dB, as night-time aircraft noise above this level is associated with adverse effects on sleep.
To reduce health effects, the GDG strongly recommends that policy-makers implement suitable measures to reduce noise exposure from aircraft in the population exposed to levels above the guideline values for average and night noise exposure.
For specific interventions the GDG recommends implementing suitable changes in infrastructure.
This is important because of adverse health effects among the exposed population. Many individuals have to adapt their lives to cope with the noise at night, and vulnerable groups are more severely affected. Therefore, we need to put what I propose in the definitions. I will press the amendment because it is quite important.
Does Deputy Coppinger wish to speak on amendment No. 3? Amendments Nos. 2 and 3 are being taken together.
Amendment No. 3 is very similar to amendment No. 2. We just did some rewording and tidied it up or whatever; it is practically the same so some of my points have been made.
I wish to highlight the importance of including a specific reference to "Night Noise Guidelines". When the WHO emphasises health, it puts the spotlight on night in particular because sleep is critical to health. In addition to drawing the Minister's attention to communities in Fingal, I draw his attention to those in Tyrrelstown and Mulhuddart, and also those in Dublin West, which are on the western approach to the airport and suffer severely because of noise. People can live with noise during the day but at night it is really important that some restrictions be placed on flights to ensure night sleep is not interfered with. I live in Mulhuddart, where, because of noise at night, I noticed it is almost impossible to leave a bedroom window open in the summer. I can only imagine the noise level closer to the airport. It is critical that what I propose be taken into account, irrespective of whatever future developments occur at the airport. It is obvious that it should be included.
Today we are considering a new Bill, the Aircraft Noise (Dublin Airport) Regulation Bill 2018. Given that the WHO report was commissioned by EU environment Ministers, it would be unfortunate if it were not referred to in some way in the Bill. If the Minister's legal advice is that, in considering the definition of "balanced approach", we cannot extend the provision beyond what is already in EU Regulation No. 598/2014, it has to be open to us as parliamentarians to find some way within the body of the legislation, although not necessarily in the definitions, to refer to this very important work in the context of airport noise in the Union. Perhaps we could determine for Report Stage whether there is another way of referring to the important report of the WHO.
May I respond to those points? On Deputy Daly's point on cost-effectiveness, there is provision in the Bill and regulations. Health is certainly covered in the regulations.
Let me address the important issue of night noise. Deputy Coppinger is absolutely right. It is recognised. The Deputy will probably be familiar with the reference. It is very high up in the priorities in the regulation, a copy of which I have to hand. Paragraph (2) states:
Sustainable development of air transport requires the introduction of measures aimed at reducing the noise impact from aircraft at Union airports. Those measures should improve the noise environment around Union airports in order to maintain or increase the quality of life of neighbouring citizens and foster compatibility between aviation activities and residential areas, in particular where night flights are concerned.
Therefore, addressing night noise is particularly targeted as a priority in the regulation.
That addresses Deputy Brendan Ryan's point. The noise is taken very seriously in the terms of reference in the directive and the regulation.
"Naturally" is my answer. This is an aircraft noise regulation Bill. The entire purpose of the regulation is to restrict and reduce the impact of aircraft noise. That is a given. We know that it is supposed to enhance quality of life based on a hierarchical system. That does not negate the point I am making, which is that we are not specifying health. The Minister talks about quality of life, but that is not health specifically. Obviously health is an aspect of it. However, because of the impact and the emphasis put on this question by the World Health Organization, WHO, because it is so important, we need to specify that we are not just talking about quality of life as something abstract or nice or an additional extra. It is an integral part of people's right to health. It has a severe impact on their mental health, their well-being and their physical health if they do not get enough sleep and if they are intruded upon negatively by noise. My point is that while we know the legislation refers to quality of life, nowhere are we specifying health. It has to be specified if we are to give meaningful legislative scaffolding to the regulation.
I have nothing to add to that.
Does Deputy Coppinger wish to make any further comment?
Obviously the WHO research should be listened to. I am going to move this on the next Stage.
I will resubmit this amendment later.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 6, between lines 6 and 7, to insert the following:
“ “Balanced Approach” means both the International Civil Aviation Organisations (ICAO) agreed hierarchy of measures designated to reduce the adverse impact of aircraft noise on those living in the vicinity of an airport and the recommendations for aircraft noise published in the World Health Organisation’s report Night Noise Guidelines for Europe 2018;”.
I will move and withdraw this amendment. This gives time for residents to have a dialogue with Deputies in the run-up to the next Stage. This is particularly important for protecting communities, protecting health, and specifying and nailing down in the legislation that night-time regulation is important in protecting people.
Amendment, by leave, withdrawn.
I ask Members to bear with me while I read out the full list of associated amendments. Amendments Nos. 4, to 32, inclusive, 42 and 43 are related. Amendments Nos. 4 to 6, inclusive, 10 to 12, inclusive, 14, 15, 18, 20, 21, 23, 27, 29, 32, 34 and 42 are consequential on amendment No. 7. Amendments Nos. 6 and 43 are consequential on amendment No. 8. Amendments Nos. 7 and 8 are physical and logical alternatives. Amendments Nos. 11 to 13, inclusive, are physical alternatives to amendment No. 10. Amendment No. 13 is a physical alternative to amendment No. 12. Amendments Nos. 13, 16, 17, 19, 22, 25, 26, 28, 30 and 31 are consequential on amendment No. 9. Amendments Nos. 15 and 18 are physical alternatives to amendment No. 14. Amendments Nos. 16 and 17 are physical alternatives to amendments Nos. 14 and 15. Amendment No. 19 is a physical alternative to amendment No. 18. Amendment No. 22 is a physical alternative to amendment No. 21. Amendments Nos. 24 and 25 are physical alternatives to amendment No. 23. Amendment No. 28 is a physical alternative to amendment No. 27. Amendments Nos. 30 and 31 are physical alternatives to amendment No. 29. Amendment No. 43 is a physical alterative to amendment No. 42. Amendments Nos. 4 to 32, inclusive, 42 and 43 may be discussed together.
I will call Deputy Munster first. We can discuss all of these with the Minister.
We will vote on each amendment after that but there are no restrictions on anyone. The Deputy should just move the amendment.
I move amendment No. 4:
In page 6, between lines 7 and 8, to insert the following:
“ “CAR“ means the Commission for Aviation Regulation;”.
I wish to speak on amendment No. 7 to delete Fingal County Council and substitute the Commissioner for Aviation Regulation. Many of us do not believe that Fingal County Council is the appropriate authority to carry out this function. We all believe it was chosen in a hurry because the Minister had left it too late to bring in a competent authority on noise regulation and as a result, the deadline was missed by the time he realised that the Irish Aviation Authority, IAA, would not be allowed to carry out the function because it failed the independence test. However, I am surprised that Fingal County Council passed the independence test given that it is paid rates by the airport and relies on the airport for part of its rates. It is high time that we move away from having bodies regulate entities when they rely on those same entities for their income. It is the same with the IAA and safety regulation, although apparently legislation is being introduced to break up the IAA for that very reason. The Minister might correct me if I am wrong.
If it is not appropriate in the case of the IAA and civil aviation regulation, why should it be allowed in the case of Fingal County Council? Many Deputies are of this opinion, as are the residents who do not have any confidence in Fingal County Council overseeing matters because it relies on the airport for funds. It does not inspire confidence in anybody. The thinking is very much that it was a rush job by the Minister, and an 11th hour decision taken on his behalf. That is the very reason why it should be replaced with the Commissioner for Aviation Regulation.
Does the Minister wish to respond? I am anxious that everyone gets a chance.
That is fine. I would rather wait and reply to them all, if that is possible.
I am in the hands of the meeting, I just want everyone to feel that they can contribute fully and there is no restriction on the Minister commenting. Deputy Clare Daly is next and then Deputy Brendan Ryan, as his name is also on the amendment.
Deputy Troy's name is also on this amendment.
Everyone's name is on this. This is the section that deals with who should be the competent authority. It is a key part of the legislation and this is probably the most substantial group of amendments before us. The key job of transposing EU Regulation No. 598/2014 is to establish a competent authority which will be appointed to set up the rules and regulations for dealing with the impact of aircraft noise in line with the balanced approach. The authority in the European Union is very clear on what the basis of the body should be. I reiterate it states:
The competent authority responsible for adopting noise-related operating restrictions should be independent of any organisation involved in the airport’s operation, air transport or air navigation service provision, or representing the interests thereof and of the residents living in the vicinity of the airport. This should not be understood as requiring Member States to modify their administrative structures or decision-making procedures.
A couple of years after saying that the IAA would be the body which would carry out this function, the Minister has done a massive somersault and is now saying that it will not be the IAA, but will be Fingal County Council. There are several different solutions proposed as to how we should deal with this.
The Minister thinks it should be Fingal County Council and we will address that point in a minute because there are alternatives. The first point I want to make is that we have to see what Ireland is doing in the context of what other countries are doing. The Minister's proposition to appoint Fingal County Council not only does not meet the requirement for independence, as outlined by Deputy Munster, but is completely at variance with what every single other jurisdiction in the European Union has done. We know that eight member states are not required to bring this in because their airports are too small. Another eight member states have designated the Civil Aviation Authority, the equivalent of the Irish Aviation Authority, IAA. Those eight member states did not seem to have a problem with independence and that is the biggest group of other member states. Five member states have designated a Government Department. Two members states have designated multiple bodies, including a Government Department and a national agency. Two member states have not completed it yet. Three member states have designated one or more local, regional or federal authorities. The stance Ireland has taken is utterly bizarre. It is unheard of for a local authority to take on the national regulatory responsibility of a competent national authority.
I will not labour the points made by Deputy Munster but the residents know, as does everybody, from dialogue with Fingal County Council that so much of the council's rate base and influence comes from the DAA that it impairs the council's independence and there is no question or doubt about that. I have seen the Minister's responses on that, where he says it is not really 20% and is only 8% when all the income streams are taken in. That is splitting hairs because it is quite obvious that the DAA is the biggest payer to the income of Fingal County Council. The council granted the original permissions for the airport runway and so on, so it is safe to say that not only is it not independent but it could never even be perceived to be independent. There is a huge problem with Fingal County Council.
I do not want to repeat the Minister's words back to him, but in answers to parliamentary questions over recent years, he told us that the IAA was the best show in town and all that good stuff, and he is now standing that on its head. The reports that the Department gave us as to why it had to be Fingal County Council and why the other organisations were not suitable did not add up. Nobody is suggesting the IAA but the Minister does not seem to have taken on board the game-changing recommendation of the Commission for Aviation Regulation, CAR. That is the favoured choice of residents. It is not their exclusive choice because the Environmental Protection Agency, EPA, may also be appropriate but most groups would prefer the CAR as the alternative to Fingal because the goalposts have now moved with the decision to split the IAA and the division of the commercial and regulatory functions.
The State is now on the cusp of bringing forward other legislation to have one single regulator for aviation which is a highly specialist and technical area. We could bring it all under the one remit and the Minister chose not to include aircraft noise, a key regulatory function, under that brief. It does not make sense. The only answer we got as to why it was not suitable was that they do not have the capacity at the moment. It is recognised that Fingal does not have the capacity at the moment. The EPA would not have the capacity for dealing with this. It is a highly specialist area. The reason it fits better coming in under the CAR, with its aviation expertise, is precisely because the people who regulate aviation are highly skilled technicians. They are of a pay grade and a level of expertise that is not replicated elsewhere. It is not replicated in the EPA and it is certainly not replicated in Fingal County Council. Fianna Fáil's dressed up version of Fingal County Council is still Fingal County Council. The suggestion that the council would set up an aircraft noise regulation division is not sufficiently independent from Fingal County Council.
In addition, an area set up solely for airport noise regulation will not be sufficiently busy to attract and maintain the level of expertise necessary to support this type of venture, if my point is understood. That is critical if it is just airport noise. In this group of amendments one of the solutions is the Fianna Fáil idea of Fingal County Council setting up an independent noise regulator. It is important to state, first, that the perceived link with Fingal is still there as it is still under Fingal County Council. An office to the side, sitting in Fingal but called the airport noise regulator, will not be working morning, noon and night. It will not have a critical mass of work or enough work to sustain the level of expertise necessary to be enticed into this outfit. The only arena where one could get that is in the CAR, and it is not there at present. Indeed, it is nowhere now. However, that is the natural home for it and we must be clear about that. Most of the residents' groups favour this as the alternative.
There was openness to the idea of the EPA possibly being considered as well. It is not hard and fast but in terms of aviation expertise, the EPA is not really at the races. Residents are highly aggrieved at this situation. The Minister reports in other replies to parliamentary questions that the EPA has said it is not up to the job. That is not true. Residents have gone to the trouble of getting freedom of information responses regarding the EPA and its involvement in this, and there has been no substantial dialogue with the EPA in terms of whether it might want this function. It is not true to say, as has been said, that the EPA does not want the gig. The records show that it has not been asked about the gig. It is important to put that on the record.
It is also important to record that concern has been expressed about the fact that the IAA submission to the recent airport noise plan by Fingal County Council was a little too deferential to the existing planning restrictions linked to the new runway. It made the point that it was concerned about the operating restrictions. That is beyond its remit. This should not be the basis of the concern. The concern is about the best way forward for reducing the impact of noise, not the airport restricting operations even though there is a knock-on in that regard.
For all those reasons the CAR is the best fit. That is entirely in line with what most of the other member states have done. We are setting up a new regulatory authority. Everything is changing. The impact on climate change, for example, means aircraft regulation is something that will have to be taken a great deal more seriously, and the impact of noise is a key component of that. Leaving it out does not make any sense. The points as to why it should not be Fingal County Council have been well made. As to what else, the CAR is the best fit simply because of the technical expertise aspect and that level on the food chain, as it were.
Five amendments in this group are in my name and I am the joint proposer of others. My amendments are related to my view and that of my party and the residents. They are based on my party's legal advice that Fingal County Council should not be designated the competent body because it is not independent enough. An alternative body with the required independence is needed. The Minister and his advisers have got it wrong. It is no shame to admit that, even at this stage. On Second Stage many of us asked the Minister to take on board what people were saying and to return on this Stage with an amended version of the legislation which took that on board. We were not making it up just for the sake of it. There is a real sense that it does not have independence, and there should be recognition of that from the Minister and his officials.
The two proposals in this grouping for alternative bodies are the Commission for Aviation Regulation, CAR, and the EPA. My preference is for the CAR but I am not hung up on that. If the Minister or Department officials felt that the EPA was better from their point of view, I would take that advice. During the debate on Second Stage, I spoke about the lack of independence and gave the ESB as example of true independence, where we have EirGrid, Electric Ireland and the ESB itself. They all have separate independent boards with no mixed or overlapping functions.
What the Minister is proposing here is that the CEO of Fingal County Council - referred to as FCC in the Bill - will not be independent of the local authority itself. That is a fact. The Bill, as proposed, does not achieve functional separation between the competent authority and the local residents. Deputy Clare Daly has gone through section 13 and the need for independence. Article 3.2 goes on to provide that:
The competent authorities shall be independent of any organisation which could be affected by noise-related action. That independence may be achieved through a functional separation.
That is open to challenge because what is proposed here does not have that functional separation. In respect of my amendments, my proposal is to go for the CAR as the competent authority. My amendment No. 4 is about interpretation and it inserts "CAR". My amendment No. 6, in section 2, again on interpretation, deletes "FCC". My amendment No. 7, in section 3 on the designation of the competent authority, replaces "FCC" with "CAR". My amendment No. 10, in section 3 on the designation of competent authority, deletes lines 10 to 38 on page 7 and lines 1 to 12 on page 8 because that section deals specifically with a relationship with a local authority. The best thing to do, therefore, is to eliminate those lines completely if the CAR, or somebody else, is designated rather than Fingal County Council. My amendment No. 42 also just replaces "FCC" with the "CAR".
I am not going to go over all that has been said. There is general agreement across the board, even from Fianna Fáil in respect of what it is proposing. There is no acceptance that this is independent enough. Something has to change and I will certainly be hoping to achieve that between today and Report Stage.
I will speak on my amendments in this group now as well. It has been well flagged to the Minister, before Christmas in the debate that took place in the full Dáil and in much of the correspondence that he would have received from residents who have studied this, that it is not appropriate that Fingal County Council would be responsible for monitoring and protecting residents in respect of noise. It is not even the councillors, by the way, who would have any oversight as members elected by the residents. It would be the CEO of Fingal County Council.
I will refer to some reasons for making this change, including the issue of expertise but also conflict of interest. The reality is that the rates base upon which Fingal County Council is reliant immediately means that it is loathe to challenge any major developments in the airport in the way that would be potentially required to protect residents from noise. The council is also reliant on development contributions and many of us who have been members of the council have seen that the airport is a major part of Fingal's overall development. Nobody is saying that the airport should not develop but it is necessary to have some independent body involved which is not linked to its development.
In terms of expertise, the Minister has received correspondence from residents. On 10 December, a presentation was made on the Dublin Airport noise action plan to the full membership of Fingal County Council, but that presentation did not even meet the requirements of the environmental noise directive. It was meant to be a graphical presentation and include maps disclosing the areas where the noise limits were exceeded. It is meant to show differences, the current position and the potential position if a new runway is built or an enhancement at the airport takes place, but none of that has been done. Planning permission was given for the north runway and the construction contract awarded. Therefore, at a minimum, one would expect the council to show difference maps and compare them with the existing position.
The other issue is that noise levels increased dramatically between 2006 and 2016, but there was nothing in the plan to suggest Fingal County Council had done or was going to do anything about it. It was very evident in the recent presentation that the council had taken quite a light touch regulation approach to noise issues at the airport. On there being a conflict of interest, when the council grants planning permission to Aer Rianta, it receives €21 million in development levies. One can see, therefore, that it is implicated. The authority that deals with noise regulation should be completely independent. I am open on what that authority should be. When I discussed the matter with some residents with whom I had been dealing, we felt the EPA would more be appropriate.
On that subject, it was stated at previous meetings of this committee that the EPA would not be considered because it had not shown that it could step up to the plate. It was also implied that it had indicated that it was not interested, which is completely untrue. A resident made a FOI request to try to delve into this issue and it emerged that the EPA had not even been consulted. No records showing that it had ever stated it was not interested were found in the trawl that took place. Therefore, misinformation was given to this committee ruling out the EPA as a factor. I can pass this information around if the Minister wants me to do so. What was said was that discussions with individual members of staff had been checked and that they could not find any record. All relevant persons in the EPA were asked if they had had any interaction on the issue and they had not. Why, therefore, did somebody from the Department say they had? It seems that residents are being given false information, for which the Minister should account.
The Minister needs to listen. Why would he not have the interests of residents at heart and appoint an independent body to regulate noise levels, rather than the planning authority which clearly has a conflict of interest and does not have the staff to do so? I do not know if it wants to do so, but it would need to recruit a whole department. I think it has enough on its plate in building housing during the worst housing crisis it has ever seen. It seems that the EPA would be more appropriate, but I am open to the others mentioned in the other amendments.
I will speak to amendment No. 9 in my name which is included in this grouping.
With the exception of Deputy Clare Daly, I have been the Member of the Dáil who has been most vocal on the need to accelerate implementation of the EU regulation which was first requested of the Government almost four years ago.
I have repeatedly raised this issue with the Minister by way of parliamentary questions, priority questions, oral questions and written questions. The manner in which he has handled the matter to date has contributed to the anxiety, fear and worry of the residents who need to be protected. He has left us in a position where there is an urgent requirement at the 11th hour to have this EU regulation transposed onto the Irish Statute Book. The Minister has even missed the timeline he set out last July and continues to miss every timeline he has set down. He changes as he goes along.
In February 2018, the Minister first indicated that Fingal County Council would be made the competent authority. I raised concerns then about the council's capacity and whether it would have the relevant expertise to ensure it would be independent and address the concerns of neighbours and residents, while at the same time allowing the airport to develop and grow. We cannot ignore that the airport directly employs 20,000 people and indirectly employs a further 45,000 people. It is, therefore, of great strategic importance not just to the local economy and the livelihoods of many people living in close proximity to it but also to the economy as a whole. We are an island nation and given the serious uncertainties arising from Brexit, we need to realise how important a role Dublin Airport plays.
As I said, we raised the issue of the expertise as opposed to independence of Fingal County Council. If we were to go down the route that other Deputies are suggesting, we would decide that Fingal County Council and every other county council could not adjudicate planning applications independently or fairly because all planning applications have the potential to deliver returns by way of development levies or commercial rates if the building or development in question is allowed to progress. We are effectively saying that every decision a council will ever take could be compromised because it would have a financial net benefit to the local authority.
I put forward my amendment in conjunction with my colleague who represents the area to ensure there is independence. One of the reasons given for designating Fingal County Council as the competent authority as opposed to other entities such as the Commission for Aviation Regulation, CAR, and the Environmental Protection Agency, EPA, was the council's capacity to build a Chinese wall and have a dedicated, independent body operating within the organisation. For this reason, we have tabled specific amendments on this matter to ensure there is independence.
I ask the Minister to indicate what will be done to ensure the necessary expertise and capabilities will be acquired, sourced or recruited for Fingal County Council.
What structure does he envisage within Fingal County Council if this legislation is passed? Time is of the essence in this matter and that is the fault of the Minister and the Government rather than anyone on this side of the room. We have a responsibility to ensure that a robust and independent regulatory regime is put in place to facilitate the sustainable growth of a major strategic economic hub on which tens of thousands of people within the constituency in which the airport is located and much further afield depend for their livelihood and income. We depend on the airport to grow in order to facilitate further connectivity and our tourism industry. How does the Minister propose to ensure that Fingal County Council will have an independent unit which will be adequately staffed by employees with the necessary expertise and capabilities to ensure that residents' concerns will be dealt with in a balanced manner as stipulated in the EU regulation?
I will ask the Minister to respond and then revert to members who wish to address other amendments. The Minister may respond now if he so wishes.
Does the Chair wish for me to respond now and then respond to further points as they arise?
It is entirely a matter for the Minister. Some very important issues have been raised.
I will respond now. I will address the issue generally and then respond to any individual questions I may have left out.
I intend to revert to members in order to ensure there is full two-way traffic on this issue.
The Commission for Aviation Regulation, CAR, was examined as an option. It is a small economic regulatory body responsible for determining the maximum level of charges which may be charged at Dublin Airport. It has no expertise or statutory remit in regard to environmental noise, environmental protection or planning and development, all of which issues are critical elements of the Bill. Furthermore, it has no current capacity to or experience of running the type of extensive public consultations required by regulation EU Regulation No. 598/2014. Importantly, it does not have the organisational capacity to absorb a substantive new function within a relatively short timeframe. It is a small economic regulator with some additional consumer protection functions and has approximately 20 staff. It simply is not currently equipped to undertake the role of noise regulator within any reasonable timeframe.
The Environmental Protection Agency, EPA, was also considered as an option. It has a statutory remit in regard to environmental protection. It has an oversight role in terms of ensuring compliance by State bodies under the environmental noise directive in respect of noise maps and noise action plans produced by local authorities. It is the considered view that the regulatory requirements under EU Regulation No. 598/2014 are very different to the licensing, audit and inspection role of the EPA. The role under EU Regulation No. 598/2014 would represent a step change from what it is currently set up to do.
On Second Stage I addressed the decision to appoint Fingal County Council to this role and outlined the reasons I believe the council is the best fit. I will briefly reiterate those points for clarity. There is significant overlap between EU Regulation No. 598/2014, the planning process and environmental protection requirements. In that respect, Fingal County Council is well suited to the job in light of its extensive experience in planning and development, land use planning and management, appropriate assessment, environmental impact assessment and managing large public consultations.
Providing the council with additional legal powers to regulate noise at Dublin Airport builds on its functions relating to noise under the environmental noise directive, END, and the planning code generally. As will be discussed further under section 5 of the Bill, Fingal County Council will impose a levy on the DAA to cover the costs of carrying out its functions under this Act. This will allow the council to bring in the expertise necessary to make evidence-based regulatory decisions on the most appropriate measures to be imposed at the airport. It will also allow it to build upon its in-house capacity. The decision of the noise regulator will be open and transparent, subject to appeal and judicial review. I am satisfied that the proposal on the implementation of EU Regulation No. 598/2014 is wholly aligned with the long established multifunctional role played by all local authorities and, in my view, Fingal County Council is the most suitable body to take on this role.
I will answer the question posed by Deputy Troy because it took a slightly different line fromseeking to have a different regulator. I understand the Deputy is concerned to make sure the regulatory process is robust, rigorous and immune from any inappropriate outside influence. I share his concern and recognise that he has consistently pursued this objective. In some ways, he has been the bane of my life for the past 18 months. The Deputy can be assured that I posed the same questions to my officials. The matter has been subjected to serious and rigorous examination, including legal examination. The conclusion is that the current provisions in the Bill are sound and meet the requirements the Deputy addressed.
Fingal County Council will establish a new, well resourced and dedicated aircraft noise regulation office within the executive branch, which will include the appropriate noise expertise sought by the Deputy. The office will be headed at a senior level by a director of services with all of the appropriate arrangements to ensure decisions are taken fully in accordance with the law, as happens in planning and development, for example. The Department of Housing, Planning and Local Government recently gave sanction to Fingal County Council to take on up to nine permanent staff for its new office. I am confident that the council will have all of the tools at its disposal to reach a decision in line with EU Regulation No. 598/2014. The legislation sets out the legal framework that the noise regulator will need to work to. It is a matter for Fingal County Council to determine how best to administer that function.
I will respond to members' specific questions which share a common theme. While I do not want to repeat myself, I am happy to do so. Deputy Munster said that Fingal County Council is not independent and she seemed to indicate that the IAA was the preferred and original choice. She also claimed that this has been a rushed job. That is a fair comment in many ways. We are absolutely satisfied that Fingal County Council will be independent. We have examined the independence of the council. I understand Dublin Airport accounts for 7% of its income and we are perfectly happy with that percentage. That decision or verdict of independence is supported by the Government's legal adviser, namely, the Attorney General. I remind members of one important fact.
It was the Attorney General's office that decided that the IAA was not independent. That was the problem. Presumably using the same criteria, which it obviously has, to judge the independence of the IAA and Fingal County Council, it has decided that the council is independent. I cannot take higher or more compelling advice. The Attorney General's legal advice is something of which we have to take heed. Were we to defy it in any way, members would be the first people to come to me and say doing so was reckless. The Attorney General has said that Fingal County Council is independent. Even Opposition Members must consider that a serious point.
Deputy Munster said this was a rushed job. I accept fully the criticism that it has taken too long. I will put my hands up - the problems involved were not necessarily of my making, but I take responsibility for them. That this has taken too long has been the result of various legal advices and other matters. However, having been criticised for two and a half years for this taking too long and, after accepting that perfectly legitimate criticism and making haste in response, it is difficult to now be told it is a rushed job. We are in haste and we want to get this Bill through quickly. We are late. It is important for many reasons that the Bill be expedited. I am grateful to the committee members for at least assisting in that and giving plenty of time for a valuable debate on the merits of whichever body they believe would best be the competent authority.
I have probably dealt with the issue of independence that Deputy Daly raised, although I am sure she does not agree with me. She referred to our "somersault". It was good rhetoric, but what we have done is make a decision on the back of legal advice that the IAA was not the right body and then moved on to what we now believe is a very good body to do this work. We are accepting the legal advice that was given in that regard.
The Deputy referred to EU member states. Ireland is in line with other member states in its choice of competent authority. Member states are notable for the diversity of their competent authorities. I can see no formula, template or common theme. There are five or six categories from which such authorities have been chosen. The Deputy is correct in much of what she said. For example, yet to designate are Belgium and Spain. They will do so shortly, but we do not know which way they will go. France and Romania have designated multiple bodies. A government department has been designated by Austria, Greece, Hungary, Luxembourg and the Netherlands. The aviation authority has been designated by the Czech Republic, Denmark, Finland, Italy, Latvia, Poland, Portugal and Sweden. Probably because the regulation is qualified by the numbers involved, it does not apply to Bulgaria, Croatia, Cyprus, Estonia, Lithuania, Malta, Slovakia and Slovenia. In common with us, Germany and the UK have designated local or regional authorities, so we are not an outrider completely. There is great variety. I do not know enough about the situation to know why every country chose particular bodies, but I expect those countries were considering the same criteria as us. Their various bodies have different levels of independence. To say that we are on our own is not true. Germany and the UK have made similar decisions.
The rate base is 7% of Fingal's income. Deputies Daly and Coppinger talked about the Environmental Protection Agency. The EPA was consulted. I do not know about freedom of information data. It is useful to have it but the agency was consulted. I can assure Deputies of that.
Is the Minister saying the agency was consulted?
It was. If the freedom of information request did not come up with records, perhaps those responsible did not keep records, but they were consulted.
I am sure there were consultations and meetings. I can assure the Deputy of that.
Does the Minister have records of it?
I will inquire into that.
If agency officials did not keep records, the Department would have done so. The Minister will be able to show us.
I will inquire for the Deputy.
He need not worry. I will definitely look into it.
I can assure the Deputy now that there were meetings and they were consulted. I hope that answers the Deputy's question.
The Commission for Aviation Regulation was contacted as well. There was certainly communication with all those bodies.
I wish to respond to Deputy Brendan Ryan, who made the same point about the lack of independence or not being independent enough. I hope I have answered that by saying that we have taken opinion on the matter from outside the Department, in particular, from the Office of the Attorney General. It is important that we should get that from the office that rejected the proposal relating to the Irish Aviation Authority.
There is a common theme running through much of what people have said to the effect that I should take on board what people are saying. I wish to say one thing that is important. I absolutely commend Deputies Daly, Troy, Coppinger and Munster on what they are doing in representing the residents. That is a useful and effective democratic procedure. Undoubtedly what they have said has had an effect on the Bill. However, I do not accept in any sense the criticism that I have ignored local residents. My guess is that no Minister would have met more local residents. I have not met them all - there are many groups - but I have met a vast number of residents from the areas involved as well as various delegations that Deputies have asked me to meet. These are not people in my constituency but from north Dublin. I welcome that and I have taken those views on board.
I have asked the DAA in various circumstances to meet these people and to take into account various points of view. I believe it is the right thing to do. It has taken some time and it has been useful but it is what a Minister ought to do and it is reflected in the Bill. The points of view of residents are paramount and have to be taken into account. There must be a balanced approach of course. The idea that this has been done in any way regardless of their views or the real fears, difficulties and problems this may entail for them is not true. They have had a welcome audience. I have no wish to make this into some sort of pious statement. There may be one or two whom I have not met but I have met a great many. I have met several delegations and I have not been reluctant to meet them at all. I hope that is reflected in everything I have been saying and in the Bill. I think I have answered all the questions for the moment.
We will go around all the members again. There is no restriction on anyone. We will take Deputy Munster first.
I wish to comment on a couple of points made by the Minister. Let us look back on the reasons the IAA was not permitted. It was because the authority failed the independence test.
I had asked the Minister to confirm whether legislation was being drawn up to break up the IAA. I refer to the independence of the IAA in safety regulation. If it is not appropriate in the case of the IAA and civil aviation regulation, why should it be allowed in the case of Fingal County Council and noise regulation? The Minister also said that the CAR would not be equipped to take on the role of regulator and that there was no expertise. Those same things, however, could be said of Fingal County Council. Returning to the making of the decision, it was rushed into because of the circumstances. It was an 11th hour decision to appoint Fingal County Council, but it also does not have the required in-house expertise. At an earlier meeting, one of the Minister's colleagues mentioned about having to seek and bring in outside expertise. It was also mentioned that nine permanent staff would have to be recruited to deal with this.
The other issue I want to take up also goes back to independence being the key. People are looking for that and for transparency in decision-making right across the board. That is all that communities are looking for. They are looking for safeguards so that they can feel confident that their issues and concerns about health and well-being will all be considered independently and in a very transparent way. The Minister referred to 7% of the income from Fingal County Council. That is not small change in respect of the budget. It is a substantial part of the budget of a council of the size of Fingal and yet it is being brushed off as something and nothing, as if it were spare change. The key aspect here is independence and people do not have confidence that Fingal County Council has the required ability, expertise or, in particular, independence in decision-making. Therein lies the problem. There is no other reason for choosing Fingal County Council than the Minister getting into a tizzy when he realised the IAA was not suitable. It was the 11th hour and he went with it. People have a serious issue with that.
Deputy Coppinger has indicated and then Deputy Clare Daly.
On the competent authority which could best provide the kind of service we are referring to in respect of noise, the reason I put in the EPA is because it currently does noise mapping. If we go onto the EPA website now, www.epa.ie, and then click into EPAMaps, it can be seen that in Tyrrelstown, which I looked up because it is a community very near me, the noise level during the day is 55 to 59 decibels. It is in that contour. The World Health Organization, WHO, recommendation is actually 45 decibels, so that is exceeding it. Hollywoodrath, the new estate that people are going to be moving into very shortly and which councillors saw fit to put on the fringe of the airport with its associated noise level, already has a noise level of 60 to 64 decibels during the day. Again, the WHO recommendation is 45 decibels. At night, Tyrrelstown's noise level is between 50 to 54 decibels when the WHO recommends a level of 40 decibels. I am giving those data because I could not have got them anywhere else except the EPA. It seems bizarre that anyone could speak at a Joint Committee on Transport, Tourism and Sport and state that the EPA could not be considered to do this while it seems well positioned to do it, with extra resources and expertise. That was the only way I could get the information to which I referred.
On the Minister stating that the EPA was consulted, this is about accountability in public life. At a meeting in October, Mr. Gallagher, who is present, stated that a few existing agencies were looked at, including the EPA, which was quickly ruled out by its line Department and the agency. He continued by stating that he supposed that was because of its inability to step up to the plate. The freedom of information request, to which the residents only got a reply yesterday, asked for all of the correspondence between the EPA and the Department outlining why the agency declined to take on the role as the competent authority for the Aircraft Noise (Dublin Airport) Regulation Bill 2018.
The reply was that no records relevant to the request had been identified and, therefore, such records did not exist. The reply referred to how information was sought on discussions with individual members of staff who may have dealt with such records and how an email was circulated to all staff asking them if they had any records or information relating to this request. The reply also referred to a search of electronic databases and records held by the agency.
I have a query on that point. To whom was the freedom of information request made?
It was made to the EPA to check if agency officials had any of these records. They are saying that they have checked and that they do not have any records. Department officials must have records and we would like to see them. This is bringing up an issue.
That is an important point, but I should point out that officials cannot respond today.
Yes, but maybe they can follow this up in correspondence.
They could respond through the Minister. That is a fair point.
The residents were keen for us to raise the matter because they were shocked.
The issue of who the authority should be is relevant. I do not think the argument about Fingal County Council holds up at all. It is simply a question of the reality about the airport. I would like to see a breakdown of the 7% figure. Either way, it is a major employer and entity within Fingal. Local authority managers are now called chief executives. That says it all about their business philosophy. The suggestion is that the council is going to be independent. Fianna Fáil seems to be indicating that it accepts Fingal will be the competent authority. It seems the council is simply seeking some additional staff and resources to be put in. That is going to be highly disappointing for residents.
In fairness, Deputy Coppinger should address her remarks through the Chair.
Yes. Deputy Troy can clarify the matter himself. I am simply trying to clarify it. If that is the case, then it will be really disappointing for residents because there is absolutely no way it would work. Let us suppose a new department was set up called airport noise protection and it had amazing experts in it. Anything it would produce would potentially be overruled by the manager or chief executive in the interests of business and development. That is the way it works - I was on the council for a long time. It would be very difficult to have that conflict. Why have such a conflict? That is the point. Why not take it out of the council and put it with an agency that is more suited to protection? It seems to me that the EPA would be better suited. I am open to the other agency mentioned as well but the EPA is better suited to protect residents. I am keen to hear the reply from Deputy Troy on the amendment.
Deputy Ryan wishes to say something.
Yes. Deputy Daly may wish to go first.
I wish to comment on the response of the Minister on the question of independence. He was going through the downside for the Commission for Aviation Regulation, but his comments were in the context of the current situation and where CAR is today. Deputy Daly outlined what has been proposed and why it is important. She set out why the changes that have been proposed are so important in the context of the proposal for CAR. The regulatory components of IAA are going to CAR and that is a game-changer. We should really respond in that context rather than in the context of the Minister saying the organisation is too small and does not have the relevant competencies. I am seeking a brief comment on the Fianna Fáil proposal. I do not think that does it. It does not deliver the independence required.
I have argued about the lack of independence of Fingal County Council but I did not mention anything about the income from rates.
I made my argument based on the content of the regulation. I read out Article 3.2 and Deputy Clare Daly read out Article 13. Do the words contained in the regulation not have any meaning? We read the words. We are reasonably intelligent people and can say that words mean something. The Minister's response is that everything is grand, but we are specifically referring to words in the regulation. They must have meaning. They refer to functional separation and being independent of the people who are affected. If those words have no meaning, the Minister's response earlier regarding the balanced approach will have no meaning either because he is relying on definitions relating to the balanced approach in the regulation. We are directly citing the words contained in the regulation yet the Minister is dismissing them as if they do not exist.
I have a question about something that is unclear. The Minister made a point about somebody with a role of director of service in the council and the recruitment of nine staff. Did I hear wrongly that this has already started? Can he return to that point and explain it further?
Does any other member wish to make a point? Perhaps the Minister will respond to the points, including Deputy Clare Daly's request, and then we can have a further round of queries.
I thank the members for their contributions. In response to Deputy Munster, there is legislation in the pipeline to break up the IAA. That is obviously a matter of independence. It is at an early stage but it will happen.
Fingal County Council has considerable expertise already, although it does not have all the expertise. It has a considerable amount of expertise in various skills that will be necessary for the competent authority. The Deputy spoke about the need for safeguards. The Deputy is right, but there are safeguards in the regulation, in EU law and in the fact that at all stages the noise regulator and An Bord Pleanála will be carrying out public consultations. There is a right of appeal if one is not happy with Fingal's decision and ultimately there is a right to judicial review. We have an enormous number of safeguards.
On the issue raised by Deputy Coppinger, I am sure she is right that the EPA fulfils some of the functions, and it does extraordinarily good work, but it does not fulfil others. It appears that, comprehensively, Fingal County Council fulfils more at present. There were meetings. We will resolve that problem for the Deputy. The people from my Department who are dealing with this met with the EPA. They will sort out the issue of whether there should have been or were records or not.
With respect, I presume there would be minutes of a meeting.
There certainly was a meeting.
Deputy Brendan Ryan spoke about the wording in the document. That wording was examined by the Attorney General when testing the independence and he found that the independence was definitely established.
Staff have been sanctioned but not recruited.
Is it envisaged for this role?
Is the Deputy referring to the role of the director of services?
There was a reference to nine staff.
As far as I know, the posts have been sanctioned.
I know but I am trying to get an idea of what levels of technical expertise and pay scale are involved?
The Minister will give the Deputy the information when he has it.
I am not sure because it does not involve my Department. It comes under the Department of Housing, Planning and Local Government. It gave sanction to Fingal County Council to recruit up to nine permanent officers.
It would be helpful if the Department could provide this information as soon as it has it.
I have just been informed the grade levels for director of services, senior executive planner, senior executive engineer, senior staff officer and a staff officer have been approved.
Is this even before the Bill has been passed?
For clarification, is it the case that those staff would be approved by the Department of Housing, Planning and Local Government to go to Fingal County Council with the Minister’s consent?
They have not been recruited. The posts have been sanctioned, if needed. That is all.
This Bill has not even been agreed, however.
They have been sanctioned if needed.
This is an issue which we have discussed previously. It may be shocking for people but it is not surprising in the context that we know the Minister and the Cabinet made the decision to appoint Fingal County Council prior to the enactment of this legislation. It is a matter we have discussed before. I have put it to the Minister that designating Fingal County Council as the competent authority, in advance of the Oireachtas approving it, is a pretty dodgy course of action to take, particularly when he does not have a plan B.
The simple fact of the matter is that nobody agrees with the Minister’s proposition to designate Fingal County Council as the competent authority for noise regulation in the airport. Fianna Fáil’s attitude is a bit of a fudge. Nobody has given the Minister everything he wants in terms of this. The idea the recruitment for a unit has been sanctioned is not surprising. What is more shocking about it is the level at which the Minister has pitched the recruitment grades. It shows a total lack of understanding of what is necessary in terms of the technical expertise and ability of the people who will form the basis of this competent authority.
When I referred to a somersault earlier, the Minister replied that while that may be nice political rhetoric, it did not mean anything. I put it to the Minister that it means quite a lot because it goes to the heart of the credibility of the information the Minister and his Department have given the committee and Dáil over the past several years. The Minister claimed he had taken this course of action because of legal advice. Two years ago, having met the Attorney General who was a week away from finalising the seventh and hopefully last draft of the regulations, the Minister told me that there was broad agreement that the Irish Aviation Authority was best positioned to take on this role and to do it to the highest standard of professional competence. He said it had a strong and internationally verified track record in the area of aviation security and inspection, functions for which it already had legal responsibility. He also said making it responsible for noise regulation made sense.
That was discussed by the committee. The previous Attorney General stated that the Irish Aviation Authority, IAA, is best placed to deal with this issue. It is a bit like the point regarding the EPA and the freedom of information request made by a resident. It gets to the accuracy of the information that is given. At the heart of this matter is deciding when we can believe the Minister and when we cannot. If some of the information which we have been given is easily contradictable, how can we accept anything we are told? Which answer should be accepted? That is at the heart of this issue.
The Minister stated that he has met many residents. Obviously, we appreciate the meetings he attended with residents but we are not raising the issue just to kowtow to residents. Many people in the communities we represent depend on the airport for their livelihood. Some very capable people have given their professional as well as residential input on the arguments and the merits of the proposition before us. It is not grandstanding. Nobody agrees with the way in which the Government has set this up in terms of Fingal County Council being the competent authority. The points made by Deputy Brendan Ryan will come back to haunt the Minister. The Minister cannot demonstrate a functional separation and that will be open to legal challenge. Even the proposed staffing levels serve to strengthen any potential legal challenge. We are digging an enormous hole for ourselves in terms of how it is proposed that this will be done.
In response to queries on why other organisations were not selected, the Minister read to us the notes in that regard which we were given a couple of months ago. We read those notes some time ago and did not agree with them. The points made in that have been reflected upon by members of the affected communities as well as by Oireachtas Members. The key point in regard to the Commission for Aviation Regulation, CAR, is exactly the point that has changed. All the way along, everybody agreed the IAA is best placed in terms of aviation regulation. At the 11th hour, the Government decided there might be a problem in terms of independence, so the IAA was axed from consideration. That is where we were. I referred the Minister to the level of expertise within the IAA. It still has that expertise but the game changer is that it is being moved and split and the regulatory functions for aviation will be held by a new aviation regulator. That is the key issue but the Minister did not address it. The 2017 annual report of the IAA confirms that this idea was being looked at. In the report the IAA pledged to work with the Department throughout 2018 to make this aviation regulatory function a reality. On the previous occasion I raised it with the Minister, he assured me that it is well under way. If it is not progressing quickly enough, that is not the fault of the Opposition or the people who will live with this decision for decades to come. The process was under way but the Minister has not reflected that in the argument.
I agree that the EPA would be a better fit for the role than Fingal County Council as it is responsible for mapping noise, but it does not have any aviation expertise in terms of taking the balanced approach necessary in tackling the sources of noise. The CAR would be better placed as regulator because it has expertise in all of the aviation rules and procedures except noise. The Minister should not rule it out because it does not have noise expertise and then justify the selection of Fingal County Council by reference to its using the levies it will receive from the Dublin Airport Authority, DAA, to acquire the necessary expertise. The proposed staffing arrangements will not provide the necessary expertise. I do not know why nine people are needed at lower grades. Rather, a couple of highly skilled people at far more technical grades are required.
There is a real problem here. We must cut to the chase. It comes down to Fianna Fáil. Deputy Troy is correct. He has consistently raised this issue with the Government in recent years, pointing out that the regulation must be implemented and why Fingal County Council is not suitable to be responsible for that implementation.
What Fianna Fáil is proposing will not provide adequate protection. It is not functionally separate enough. I know that is what Deputy Troy is attempting to do, but even if the function of separation were there, it would not be sufficient. There is not sufficient work in a stand-alone capacity for nine people, and certainly not at that level. Much of the time they would not have anything to do. It fits in more with aviation in that it is not a nine to five, 365 day a year briefing for this role, so if it were to be set up in that way, there would not be sufficient meat, as it were, to attract people of sufficient capabilities. That would be a real problem.
The Minister did not answer the point about the other countries because he repeated back to me the points I had made, thus avoiding the principal point that no other jurisdiction has brought it in the way that we have. Britain and Germany have not brought it in the way that we have. What they have is either a local or a regional authority being set up, and let us face the fact that a German regional authority is bigger than Fingal County Council. In each and every case, however, the Minister for transport of various state departments is also involved in the process and is part of the competent authority. There is not one local authority on its own. Therefore, no Administration has brought it in the same way that Ireland has and that point has not been answered yet.
We are looking for information and concrete answers to questions that are being raised here. It is not just that we are representing the residents' views or providing rhetoric. We are not getting the proper and accurate answers on this and it is not our fault that the rush is on now because the preparation was inadequate to begin with. We are in a difficult situation and this stage of the process can be difficult for people to understand because there are not many votes and maybe we need to explain how that works because it is a bit confusing. We are trying to move the debate on because the general points have been well articulated. Most members do not agree with Fingal County Council and nobody outside of the Minister and presumably Fine Gael agrees with what the Minister is doing. If that is accepted, then the alternative has to be looked at and the Minister has not listened to that. That is what we are here to do-----
That is what this debate is about-----
But the problem is that for the Minister to come back with points that have been raised months ago and rehearse those does not bring the argument on and he does not demonstrate that he is listening to what members have said and making adaptations based on that.
In fairness to the Minister, he has answered openly every question he has been asked openly, and there is also Report Stage of the Bill, regardless of what happens today, so there are many opportunities for members to express their views and to get answers to questions.
I refer to the recruitment and the indication that sanction for it has been given. It is shocking that the Minister would go through with recruitment without the approval of the Members of the Oireachtas. It shows a disregard for what might happen in this committee or the views of the members of the committee, and it is unacceptable to me. It is equally shocking when the Minister gives out the list of the people who are to be recruited and their level of expertise. The highest level is the director of service, the salary level for which is established and we know it. The real expertise that will be needed to carry out the work of the competent authority will have to be bought in by way of consultancy. Therefore, any organisation we choose could be quite capable of buying in the consultancy in the same way as in the proposal that seems to be on the table with Fingal County Council.
It is a pity nurses are not recruited as quickly as the Minister has moved with this. It is ridiculous that we have not even agreed what the competent authority is and the Minister has already moved on the recruitment for same.
I refer to the Minister's announcement. It displays the arrogant attitude that we are dealing with and the dismissive approach to what anybody else has to say on this.
The Department has gone ahead and initiated recruitment of nine members of staff for Fingal County Council despite the fact that every single member of the Opposition is against the appointment of Fingal County Council as the competent authority-----
Let us hope Fianna Fáil comes on board, given the seriousness of this. I would like to think that transparency and accountability would precede any sop to the Government so hopefully it will. It displays arrogance and a dismissive attitude, not just to elected representatives, but on the general theme of setting up an accountable authority. That is all people want; accountability and transparency. All the residents want is to be safeguarded and for their health and well-being to be taken into account. I will say no more. It is just unbelievable.
I can assure Deputy Munster, who is very much a latecomer to this issue, that there will be no sop to the Government. I do not think she raised it once in the 20 months-----
Deputy Troy can prove that when it comes to the vote. This is it.
Deputy Troy has the floor.
What we want to achieve is a robust regulatory independent body to ensure that an airport that is contributing 20,000 jobs directly and 40,000 jobs indirectly is allowed to develop and grow in a sustainable manner. We need that as an economic driver of this country. Unfortunately we are backed into a corner now. This is time-sensitive, and the reason it is time-sensitive is because of the procrastination by the Minister over the last two years. We want to take this Bill and improve it. That is why we have put forward amendments in that regard. Listening to the Minister's reply in the last few minutes I have concerns about the level of expertise of the staff members that have been sanctioned by the Department. Quite frankly it does not matter to me whether the Minister's Department sanctioned them or the Department of Communications, Climate Action and Environment did. The Minister is the person responsible for this piece of legislation.
I acknowledge that these members of staff have been sanctioned. That is fine. They have not been recruited. However, I am concerned with the grade of staff that is being sanctioned. In my initial contribution I asked the Minister to outline clearly how we could have confidence that the staff that would be made responsible for conducting and implementing this regulation would have the necessary expertise and qualifications. The Minister is talking about planners and engineers. I have concerns about that and I hope the Minister can clarify that.
It is also worth noting, and it has not been acknowledged by the Minister or indeed by any speaker, that there is an appeals mechanism here. The appeals mechanism is An Bord Pleanála. Ultimately Fingal County Council is not going to be the final decision-maker. There will be an appeals mechanism, that is, An Bord Pleanála, and a further appeals mechanism by way of judicial review. We do not want to have to go that far. We reluctantly acknowledge given the work that has been done in relation to Fingal County Council, that independence can be established by creating a body within Fingal County Council by creating a directorate there which is not answerable to anybody else, which can act independently and which must have the required expertise, skill and knowledge to ensure that this EU regulation is implemented to the letter of the law.
The director would also ensure a balanced approach, that the residents’ concerns were addressed and that noise mitigation measures were implemented, while at the same time enabling the airport to grow and develop. It is now at capacity and if we push this down the line, we will put its further development and jobs in the region at risk. That is why we have proposed the amendments in the way we have and I stand over them.
Deputy Troy has just said the director of services appointed would be independent. Perhaps I misunderstand him. In county councils throughout the State the director of services works under and is answerable to the chief executive officer. Therefore, will the Deputy explain his position? Perhaps it is my stupidity, but will he explain what is meant by an independent director of services within a council?
I have no problem with it.
Amendment No. 9 states:
(a) FCC shall establish a separate unit within its remit entitled the Aircraft Noise Regulator and appoint a director to this body, and
(b) the director of the Aircraft Noise Regulator shall not be subject to the direction of any other person.
There are a couple of important points to raise. That the staff have been sanctioned by the Department of Housing, Planning and Local Government really enforces the argument we are making in respect of total interdependency and the inappropriate nature of the council in being the competent authority and the planning authority. It is the body that comes within the budget of the Department of Housing, Planning and Local Government. The levels and pay grades announced are completely out of kilter with those in the rest of the area of aviation regulation, for example. The pay grades are nothing like those within an IAA or CAR equivalent. I refer to the high-level technical expertise needed in this area. It shows a misconception or lack of understanding and is more prevalent in the Department of Housing, Planning and Local Government than the Department of Transport, Tourism and Sport because, when we had briefings, the staff who attended from the Department responsible for the environment were saying the council could, of course, do as described, that it would receive a planning consideration and go to the Department responsible for roads or water services to get advice and factor it in. It demonstrates a complete lack of understanding of the point to state a competent authority has the right, when the planning authority goes to it, to state, "Thus far and no further." The competent authority must be obeyed. That the authority can be duly ignored by the planning system represents an unhealthy influence on the part of the Department responsible for the environment. It actually undermines what should be the independent role of a noise regulator in that regard. It is actually very unhelpful.
My other point is on the need. It is the case that we need a competent authority. That is absolutely true and we have long been campaigning to try to have one. How time-sensitive is it and what would be the impact? Who will suffer because of the delay? The DAA, for example, is on record as stating it does not mind at all who the competent authority is as long as we get our act together and get the legislation through, thus providing for more clarity. What we are saying strongly is that we all want to see legislation and see this process through, but we want to see it being set up on the right basis in order that we can do both.
A reply I received to a parliamentary question to the Minister in December referred to the plans for the new commission for aviation regulation. It indicated that work was well under way. It referred to a high-level project management board, to much due diligence work being done and to numerous working groups.
Discussions had begun with the trade union Fórsa. It involved complex competencies but the Minister was looking at it. There were a number of stages to be done but it was under way. If we are doing the job we should be doing it right. We need to do it right. I appeal to Fianna Fáil. We can set up a competent authority, but let us set it up in the flipping right way because this is going to be in place for years to come. That is important. The Minister has not really addressed those points at all.
Finishing up on the issue of where we all stand, my impression before Christmas was that all parties barring Fine Gael were putting it to the Minister that Fingal County Council was not appropriate, that it was important to have complete independence, and that we had to be honest with residents. That does not now seem to be the case because if Fianna Fáil and Fine Gael vote for the Bill as it stands, the council will be the competent authority. We have to be upfront with people that this is what is happening. I hope that will change before Report Stage as a result of dialogue with the residents, but that is where it stands now.
Amendment No. 9, which Deputy Troy just mentioned, provides that the director of the aircraft noise regulator section of the council shall not be subject to the direction of any other person. First, as Deputy Munster has said, the CEO is the top person in the council. Not only that, but page 7 of the legislation itself makes it absolutely and abundantly clear that the "the functions of the competent authority [...] shall be performed by the chief executive". The chief executive of the council will override any other section in the council so Deputy Troy's amendment will do nothing to protect the regulator's independence.
On the issue of time, we absolutely agree that we do not want to delay necessary development but no matter whether one is recruiting for the council, the EPA or the Commission for Aviation Regulation, it takes the same amount of time so that argument is completely redundant. The people with the necessary skills will need to be found regardless of which body is made the competent authority.
Obviously Deputy Troy is the spokesperson for the biggest Opposition party and he has been doing the running all along, but there is no point doing the running and then falling back at the time when one is needed, that is, at the finish line. If the Deputy wants to continue on with what he says he has been doing he needs to stick by the amendments which have been tabled such as, for example, amendment No. 6, which deletes Fingal County Council as the competent authority, or amendment No. 5.
There is a common theme which has gone through nearly all of the contributions, which is the recruitment of the nine members of staff. Some people call it arrogance and some have said it was reckless. It is not arrogant. No staff have been recruited. What has happened is that positions have been sanctioned. That is prudent and a sensible thing to do in anticipation of what we expect to happen in order to introduce noise regulation. It is not arrogance; it is just the approval of various posts which will require certain expertise. It is very important to do that. We should make preparations for something which, as everybody would acknowledge, is urgent. There have been many delays, for which other people and I have been justifiably criticised. In order to alleviate the difficulties and problems caused by that delay, it seems absolutely sensible that, in anticipation of Fingal County Council being set up as noise regulator, we should take measures in preparation for what is going to happen and advertise and sanction these nine posts.
That is neither unwise nor arrogant.
Fingal County Council will be bringing in additional expertise as needed. It will bring in more specialists. I will not get involved in the detail of whom the council brings in, and for what, because that is not my job. It is up to the council to make those types of decisions. To describe the approval for posts as arrogance, as Deputy Munster did, is absurd. It is not arrogance.
It is almost as if the Minister is laying plans to recruit nine people with absolutely no expertise for the job required of them.
I want to try and keep this discussion open but without interruptions. The Minister has the floor, without interruption.
To reply to Deputy Clare Daly, I am confident that we will get the necessary expertise. I do not think that will be a problem. When the Deputy says that I have repeated answers I have produced before, if she asks the same questions she will get the same answers. I do not mind if the Deputy wants to go over the old coals of this long saga time and time again, that is up to her, but she will get the same responses. Those same responses are the same reasons there has been a delay and I will give those responses every time she asks the same question. That is fine. People should be reminded of the difficulties we have faced but the reasons for them will be consistent.
I was asked if the delay is time sensitive and of course it is. We want to resolve the uncertainty that exists. The Deputy is representing a large number of residents here today, some of whom are in the Public Gallery, and they are welcome, but we want to make sure that the difficulties and uncertainties which they face and are living through, and I apologise for the delays, are ended. It is time sensitive and those residents should know exactly what the consequences of what we are doing will be for them and we are determined to do that. There is a lot in this directive which is balanced and in which those residents should find reassurance. There is no noise regulator there at all at the moment.
I wish to address what Deputy Troy said. His amendment looks for a robust body and his concern for independence is one which we share. I do not envisage any great difficulty with having a chief executive in that situation because of the safeguards which exist. It would be extraordinary if the chief executive were to do anything to compromise the independence because of the transparency of the process. That would obviously emerge immediately and the safeguards which are there in the appeals mechanism which we have already mentioned, the commitment to public consultation through the appeals and noise regulation process and the judicial review to which we referred are adequate safeguards to make sure the transparency and independence is there.
I also wish to assure Deputy Troy that resources and expertise will be brought to bear and, if there are mistakes, the appeal process will catch them. This is a very thorough process.
It is a long and arduous process and people will be complaining for a long time to come. An Bord Pleanála has 18 weeks yet and there are four weeks for appeals, which is to protect residents and the consumer. The length of time to make sure the process is transparent and thorough is built into the legislation. That is why it is there. It is irritating. We have so many cases of An Bord Pleanála annoying people because of delays in its decisions but the flip side of that is that the public and all sorts of stakeholders are protected by this and everything is taken into account. I do not think anybody needs to fear that the process is not transparent and full. It will be very thorough and forensic.
It provides for a new regulatory regime to assess, monitor and enforce noise management at Dublin Airport. We have had various suggestions about the competent authority here today. People have suggested the EPA; the Commission for Aviation Regulation, CAR; and the Irish Aviation Authority, IAA, in a post-split situation. All of them have a bit to offer and all of them have merit but on balance, I am adamant that the best choice is Fingal County Council. I do not dispute that everything that has been said here today has merit but it is a bit more nuanced. Fingal County Council has a great deal of expertise. Overall, it has greater expertise and there is a better case for it than there is for the others.
Does Deputy Clare Daly wish to comment?
The Minister made the point that if one asks the same question, one will get the same answer but the problem is that we have been asking some of the same questions and have got either no answer or contradictory answers. The Minister failed to address that point. The essence of the point that was being made was that over the course of the past two and a half years when we have talked about this issue, on some occasions, the Minister said "black" while on another occasion, he said "white". Which one is the right answer when at various times, the Minister has given two diametrically opposed answers to the same question? The point I made about the Minister referring to past information referred to his critique of the other agencies that might act as a competent authority and the briefing from his Department in November 2018 that he rehearsed for us today when he dealt with points and dismissed the CAR using the same line he took in November but where he failed to address the question he was being asked. He has not reflected the fact that aviation regulation and the IAA's regulatory functions are being subsumed in this new CAR and that this is the body we envisage would take ownership of all regulatory functions relating to aviation. The Minister cannot have his cake and eat it. He cannot say that he is sorry for delaying the Bill, that he knows he is partly responsible for that and that we must rush it now because we are all to blame. We are not all to blame. It is not better to have bad law than no law at all. We have to get this right.
Perhaps the Minister could help us. He said that he is convinced that Fingal County Council is the best choice. As we are not convinced of that, the answers he has given us have not overcome that. Could the Minister give us an explanation of what the nine people will be doing? As the Minister has looked at it sufficiently to state there are nine people at these particular pay grades, what does he envisage those people doing on a day-to-day basis? How would it work? How would it fit in with the rest of the local authority? We are talking about nine people on various grades, which is not really sufficient at some level. Could the Minister tell us what they would do to give us an idea of how it might address some of our concerns in terms of how this will work?
If the Minister does not have that answer today, perhaps he could produce it at the next Stage of the Bill or if we are sitting another day on this legislation.
The Minister should do so because it causes a problem for everybody. I am not interested in playing games on the issue.
If the Minister does not have that detail, as soon as he has it, the Deputy will have it.
I accept that. On the Chairman's point that this is supposed to be a collective process and that we are supposed to be advancing the debate, the answers are particularly relevant in the context of what staff do. Nobody has stated he or she agrees with Fingal County Council, except the Minister. Fianna Fáil has tried to do a bit of both. In fairness, in his amendment Deputy Troy did take out the reference to the chief executive officer and would give the director of the new unit full authority to deal with the competent authority on these issues. I accept the point that he has altered the amendment in that the level of subservience to the CEO has been addressed by him, but I put it to him that it is still not enough. Critically it is not enough in the sense that the level of technical expertise required to maintain such a unit would not fit with it. In the light of what the Minister said, I appeal to Fianna Fáil to re-examine its amendment and for us collectively to come back to the issue on Report Stage. I take the Minister's point that there are alternatives being proposed, but the best way forward is to agree on one and submit it on Report Stage.
Deputy Clare Daly is asking for clarity on the issue.
If the Minister cannot provide it today, the Deputy is asking that she have it on the next occasion.
Well before the next occasion.
It is reasonable that, whenever we meet formally, the Deputy will have received it.
I am not averse to that suggestion. To an extent, it is micromanaging which I would not be expected to do. It is somewhat absurd to ask me to give the details of exactly who will do what job, but if Deputy Clare Daly wants them, I will endeavour to find out and provide her with the information.
I am not unhappy to do it, but it is probably up to the competent authority to provide it. That is why we have these bodies to do this work for us. Certainly, I will obtain the information for the Deputy if I can.
I must interject because I made a similar request at the outset. I am not expecting the Minister to micromanage any competent authority, but at the outset what I requested was an assurance that the criteria and qualifications specified would be outlined for the staff to be hired for the competent authority, be it an independent unit in Fingal County Council, CAR or whatever else, in order that they would be able to carry out the work required to be done. In other words, will they have the relevant qualifications and expertise in aircraft noise regulation to ensure they will be able to adjudicate and ensure a balanced approach is adopted?
That is something on which I can give the Deputy full assurance. That will happen.
I do not particularly want to know what the staff will do every day. We do not expect the Minister to micromanage, but it is incredibly relevant. Environmental sections of a local authority that monitor certain activities might have one, two or three staff working in them. Nine staff working full time on aircraft noise regulation specifically is quite a lot, but on some occasions one might need many more. What will the nine staff do? The Bill tells us - I accept that we need to change it in other respects - that a planning application will be received, on which they will adjudicate. How often will that happen? Alternatively, a complaint might be submitted or they might produce a plan every year. I wonder what else they will do or where is the overlap within the local authority in order to have clarity on how the Department envisages the competent authority working. What other jurisdictions seem to have is much more of an IAA regulatory function, with a high level of technical expertise in the ongoing monitoring of aviation regulatory functions.
There might be an element of being pulled on those skill sets.
We are at a point where the amendment could be moved formally if everyone is happy with that. Are members satisfied that the other amendments that have been grouped have been adequately discussed?
Will the Chairman explain something? If someone calls a vote on something now, and it is lost-----
Only the members of the committee may vote.
I know that only committee members can vote, but if someone calls a vote and the amendment is defeated, can that be resubmitted on the next Stage?
It can be resubmitted on Report Stage.
It can be resubmitted. I have other business and must leave. Is it possible that we can formally move some of the motions?
I want ensure that everyone is satisfied that they have had proper debate and the questions have been adequately answered. In the case of many of the other amendments that are being taken in this group, members may not speak on them after voting on this begins. I want everyone to be happy with that.
I wish to ask the Minister whether other factors are at play here given where we are on the timeline. In our attempts to convince the Minister that the CAR is the appropriate body, are other factors at play in his reluctance to go with that? Are there practical issues? If he were to go along with designating the CAR today, what are the practical implications of his agreeing with us that this is the correct way to proceed?
I have multiple motivations for getting this through quickly. We are behind on noise; that is the factor. It was 2016 and therefore we are late and that is the factor. It is to get it expedited as soon as possible.
If the Minister were to change tack now and go for another body such as CAR, what would be the time implications?
My assumption is that it would be delayed considerably if that had to be done.
The same recruitment would have to be done.
Amendment put:
The Committee divided: Tá, 3; Níl, 3.
Tá
- Coppinger, Ruth.
- Munster, Imelda.
- Murphy, Catherine.
Níl
- O'Dowd, Fergus.
- Rock, Noel.
- Ross, Shane.
Amendment declared lost.
Staon: Deputies Kevin O'Keeffe and Robert Troy.
There is an equality of votes with two abstentions by Deputies Kevin O'Keeffe and Troy, respectively.
On a point of order, does the Minister have a vote for committee meetings?
I am sure the Deputy will be glad to hear the Minister is an ex officio member. I cast my vote as a Níl and, therefore, the amendment is declared lost.
Amendment declared lost.
I move amendment No. 5:
In page 6, between lines 7 and 8, to insert the following:
“ “Commissioner” means the Commissioner for Aviation Regulation;”.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 6, to delete line 18.
Amendment, by leave, withdrawn.
Section 2 agreed to.
I suggest that we adjourn until 12.15 p.m.
I understood that we could discuss the amendments together but I do not mind if people want to discuss them separately. We are just moving and withdrawing the amendments to re-enter them on Report Stage.
All of the amendments in Section 3 have been discussed.
Yes. There are a lot of amendments but most of them are small ones.
I have no problem with members discussing the amendments individually. I propose that we suspend the meeting for 15 minutes. Is that agreed? Agreed.
Sitting suspended at 12.02 p.m. and resumed at 12.31 p.m.
SECTION 3
I move amendment No. 7:
In page 7, line 8, to delete “FCC” and substitute “CAR”.
Amendment put and declared lost.
As Deputy Coppinger is not present, I ask another member to move amendment No. 8 on her behalf, please.
I move amendment No. 8:
In page 7, line 8, to delete “FCC” and substitute “The Environmental Protection Agency”
Amendment put and declared lost.
I move amendment No. 9:
In page 7, between lines 9 and 10, to insert the following:
“(2) For the purposes of this Act—
(a) FCC shall establish a separate unit within its remit entitled the Aircraft Noise Regulator and appoint a director to this body, and
(b) the director of the Aircraft Noise Regulator shall not be subject to the direction of any other person.”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Brien, Darragh.
- Troy, Robert.
Níl
- Coppinger, Ruth.
- Munster, Imelda.
- Murphy, Catherine.
- O'Dowd, Fergus.
- Rock, Noel.
- Ross, Shane.
Amendment declared lost.
Amendment No. 10 is in the names of Deputies Ruth Coppinger and Brendan Ryan.
I move amendment No. 10:
In page 7, to delete lines 10 to 38, and in page 8, to delete lines 1 to 12.
I withdraw the amendment but will resubmit it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 7, line 10, to delete “Subject to paragraphs (b) and (c), the functions” and substitute “The functions”.
I withdraw my amendment but will resubmit it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 7, line 13, to delete “chief executive” and substitute “Commissioner”.
I withdraw my amendment but will resubmit it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 7, line 13, to delete “chief executive” and substitute “director”.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 7, to delete lines 14 to 18.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 7, to delete lines 14 to 16.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 7, line 15, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 7, line 16, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 7, to delete lines 17 and 18.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 7, line 18, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 7, to delete lines 19 to 21.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 7, line 22, to delete "chief executive" and substitute "Commissioner".
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 7, line 22, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 7, to delete lines 24 to 29.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In page 7, to delete lines 25 to 29 and substitute the following:
"(a) the Commissioner in performing the functions of the competent authority, and
(b) any employee of the CAR assisting the Commissioner in the performance of such functions,
shall not be subject to the direction of any other person.".
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 7, line 25, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 7, line 26, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 7, line 30, to delete "chief executive" and substitute "Commissioner".
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 7, line 30, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 7, to delete lines 33 to 38, and in page 8, to delete lines 1 to 12.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 7, line 35, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
I move amendment No. 31:
In page 7, lines 37 and 38, to delete "chief executive" and substitute "director".
Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5
I move amendment No. 32:
In page 9, line 10, to delete "(within the meaning of section 96 of the Act of 2001)".
Amendment, by leave, withdrawn.
I move amendment No. 33:
In page 9, to delete lines 18 to 20.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6
I move amendment No. 34:
In page 9, to delete lines 27 to 32 and substitute the following:
"(2) Every regulation made under a provision of this Act, other than under sections 9(9) and 10(16) shall be laid before each House of the Oireachtas as soon as may be after it is made.
(3) Either House of the Oireachtas may, by a resolution passed within 21 sitting days after the day on which a regulation is laid before it under subsection (2), annul the regulation.
(4) The annulment of a regulation under subsection (3) takes effect immediately on the passing of the resolution concerned, but does not affect the validity of anything done under the regulation before the passing of the resolution.
(5) A regulation may be made under sections 9(9) and 10(16) only if—
(a) a draft of the proposed regulation has been laid before the Houses of the Oireachtas, and
(b) a resolution approving the draft has been passed by each House.".
This section deals with the Minister having the option to make regulations at various stages and notify the House after the event. What I am trying to do is increase the democratic input of the Houses. It would absolutely allow the Minister to continue to have the ability to make regulations and to inform the House after the event in the normal way but with two exceptions where the regulations must be brought before the House in advance of being made so the Oireachtas can have an input into those two clauses. It is a provision we introduced on data protection and it is a good precedent. This would not impact on the Minister or impede his ability to make regulations and lay them after the event except in cases involving a dispute resolution mechanism. The legislation as its stands states the Minister may introduce regulations in this regard. The amendment would require him to bring regulations under this remit to the House first. The Bill provides for the appeals process to be decided by two Ministers of the Houses. Rather than two Ministers deciding an appeals process, it should come to the House first for discussion. We have taken this measure in other legislation to increase the democratic input in these two important areas.
Does any other member want to comment on this before the Minister replies?
I will not accept the amendment and I do not think the Deputy will be particularly surprised by this. I do not think it is necessary. We have a very democratic way of dealing with these regulations already. Any regulation made under section 9(9) or 10(16) will be laid before each House as normal, with an opportunity for them to be examined within 21 days.
It is far from adequate. This is a measure that other Departments have introduced to improve the democratic process and allow the House have an input in important aspects of ministerial responsibility for laying regulation before the Houses. These are two critical areas. The amendment would not tie the Minister's hands. It would force him to go before the Houses first and have the argument there rather than nodding through the regulation. I will certainly press the amendment.
Amendment put:
The Committee divided: Tá, 4; Níl, 3.
Tá
- Coppinger, Ruth.
- Munster, Imelda.
- O'Brien, Darragh.
- Troy, Robert.
Níl
- O'Dowd, Fergus.
- Rock, Noel.
- Ross, Shane.
Amendment declared carried.
Section 6, as amended, agreed to.
Sections 7 and 8 agreed to.
SECTION 9
I move amendment No. 35:
In page 10, to delete line 6 and substitute the following:
“, the Environmental Noise Directive and the Environmental Noise Guidelines for the European Region (2018).”.
I want to ensure there is an explicit reference in the legislation to the noise guidelines of 2018. They are the most up-to-date noise guidelines for the protection and well-being of residents in the vicinity of the airport.
Seeing as they are the World Health Organization's environmental guidelines that have been approved, I assume the Government will accept them. That would represent best practice in the monitoring of noise levels and their impact on surrounding communities. It is crucial that the provision be included in the legislation and that it represents best up-to-date practice. That is why I support my colleague in tabling the amendment and hope there will be universal support for it.
There is absolutely no reason we would not have the absolute optimum in terms of an up-to-date European regulation. We do not want to have to come back and amend legislation where we can predict that there is an improved standard and do a good deal with insulation. It is not possible to insulate a back garden. We should consider outdoor, as well as indoor, noise.
I cannot accept the amendment for good reasons. EU Regulation No. 598/2014 makes it clear that the noise regulator must ensure regard is had to the 2002 environmental noise directive in monitoring noise levels at the airport. We cannot alter EU Regulation No. 598 which ensures a consistent EU-wide approach to noise levels assessment. I do not propose to move away from it and it would be impossible to do so. As I said, the noise regulator will have the required expertise to decide on the most appropriate limits at the airport. I do not propose to dictate to what the regulator should have regard. It would be particularly difficult if the amendment were passed because it would contravene EU Regulation No. 598. I, therefore, call on the proposer to withdraw it in the light of the 2002 environmental noise regulations.
With respect, the Minister may have misunderstood the purpose of the amendment. It is not to remove the 2002 regulations but to add the 2018 guidelines which are the most up-to-date guidelines. It would not contravene anything. We have checked this out and researched the matter and our clear view is that it would not be a contravention but actually strengthen the legislation. It would not remove anything from the regulations either. It would not do what the Minister has said it would. I do not believe it would cause additional difficulties. If anything, it would ensure the noise regulator would have regard to the 2002 regulations and the 2018 guidelines, as well as future environmental noise guidelines. We expect and assume that the noise regulator would do so. Therefore, it makes perfect sense that the amendment be included in the legislation.
Deputies Coppinger, Clare Daly and Catherine Murphy are next.
I am not going to labour the point because we have made all of the points that need to be made about health and noise. I do not imagine the Minister is seriously suggesting we would be kicked out of the European Union if we were to add this provision. Is he? The idea that we must keep something that is 17 years old and cannot update it when we are bringing forward new legislation is farcical.
This is a serious part of the debate. The logic of what the Minister is saying is that, in effect, we should ignore scientific evidence that is known to cling to a bureaucratic measure. Part of the reason this legislation has been delayed in its implementation in Ireland is the delays within the Department of Transport, Tourism and Sport. The amendment would not undo anything. It would simply add a reference to the recognised reality in respect of current levels and the health impacts of aircraft noise, especially at night.
It is actually essential. The Minister's answer will be frightening for people who are listening. Effectively, he is saying that this is a bureaucratic measure and that we are only doing this because we signed up with the EU. He is suggesting we can ignore all that good stuff about science and the actual reasons we are bringing in aircraft noise regulation and the health impacts. He is saying we will not bring it up to date. This is not a contradiction; it is an add-on. It does not undermine anything. It strengthens the Bill.
Will the Minister expand on who makes the regulations to which he referred?
Let me repeat the legal advice we have on this, which is definitive. We cannot add or take away from this regulation. I wish to comment on the 2002 environmental noise directive to which the Deputies have referred. Obviously, it is open to the regulator to have regard to that when making decisions. However, I cannot possibly do anything but ask the proposer to withdraw this amendment because it would be problematic if it were to be passed. We cannot divert from EU Regulation No. 598/2014. It is as simple as that. We are not allowed to do it. That is the legal advice we have and it is absolutely definitive. I call on the Deputy to withdraw it.
If Deputies want me to look at it at some point between now and Report Stage to see if there is anything we can do, I can do so but I cannot possibly accept the amendment the way it is. It is contrary to the strong legal advice we have received.
Will the Minister address the point on who makes the regulation that is followed?
It is an EU regulation. That is what we are implementing.
Do we not update measures? We do it here all the time. We update ourselves. Obviously, there has been an advance since 2002. It is referred to in this amendment. We would be obliged to update our statute in accordance with European directives on noise. Why is it falling behind in respect of this issue?
We update when the EU updates. We do not do so unilaterally. It is imperative that this is in place for another reason. It ensures that there is a consistent EU-wide approach to noise assessment. This would divert from that as well.
(Interruptions).
There is noise. Please respect other speakers. I cannot hear the Minister clearly.
The whole issue of health and noise is important. It sounds farcical to say we cannot add or strengthen EU regulations. This can be dealt with in several ways by the proposer. We cannot actually write in the regulation but we could list all the things in the regulation on Report Stage if we wanted to. There would be nothing to stop us doing that. It is ridiculous. Perhaps that could be considered.
I have to leave shortly but I have put forward amendment No. 38, which deals with making health explicit in the evaluation of noise effects, as do a range of other amendments. I will definitely be re-entering it on Report Stage because this goes to the heart of the entire debate. The Minister seems to be sticking by bureaucratic strictures rather than recognising that he should be making changes. If that is the case, it is 17 years old. Much has changed and much has been found out since then.
I do not dispute that the Minister has got legal advice. Will the Minister and his officials be willing to share that written legal advice with members of the committee to allow us to review it in advance of Report Stage? Are we simply to take it on the nod that the legal advice states it is contrary to this measure being included?
I reiterate that we are not in any way seeking to contravene or remove the 2002 directive but, rather, to update it to take account of the 2018 World Health Organization, WHO, environmental noise guidelines. We are not seeking to remove anything. It is an addition. As Deputy Clare Daly stated, the amendment takes account of the improved scientific data produced by the WHO which form the basis for the 2018 European noise directive. I ask the Minister to share with the committee the written legal advice which he states he has received.
I am very keen to accommodate the Deputy but I cannot do so. Let me explain. I cannot share the legal advice because it is privileged. I would love to share it but I cannot. I cannot support this amendment because I have received definitive legal advice that we cannot add to or take away from the provisions provided in the Bill. I do not seek to counter the arguments that have been made for the amendment and agree that it would be very useful if the latest environmental noise directive was included in the consideration of the noise regulator but I cannot include it in the legislation because to do so would be inconsistent with all of the other European legislation. In the light of what has been stated, we will reconsider the question and revert to members on Report Stage, which would be reasonable. The Deputy is asking me to do something which I cannot do. However, I can pose the question again and try to accommodate the Deputy in some way between now and Report Stage if that is possible. That said, I cannot and will not agree to the amendment.
Several members are offering. Deputy Munster is next, followed by Deputy Clare Daly.
It is very strange. I would have thought there would be an onus on a Minister to be cognisant of the most up-to-date EU regulation when drafting legislation and, depending on the legislation, to adhere to the most recent EU regulation. Is that not the case?
Whether the Minister is cognisant of it is not really relevant. We are implementing a European directive which has already been updated and which we are obliged to implement. I do not have the discretion to put it into a regulation of this sort.
The Minister does not have the discretion to divulge his legal advice either.
That means that the committee will be left in the dark.
Unless the Deputy thinks I am not telling the committee the truth-----
I am telling the truth. The committee has been left in the dark about the legal advice because it is privileged, but I assure the committee that that is the advice we received. Sometimes, legal advice is the last thing I want to get. It can be and has on many occasions been a nightmare for a Minister to receive legal advice but it would be a very foolish and reckless Minister who would defy such advice. If I did not act in accordance with the legal advice, the Deputy would be the first person to ask me what I was doing.
I acknowledge that it is not permissible to divulge the advice of the Attorney General. However, the section of the Bill dealing with definitions does not only make reference to the 2002 directive; it also refers to decisions of the European Parliament and Council in 2015. It is not that the Minister is dealing solely with the 2002 directive to which nothing has been added. The definitions in the Bill make reference to material from the European Parliament and Council in 2015. The amendment recognises the fact that we are now in 2019 and there is further regulation in this area. The Minister might not be able to give us the advice he received but we can seek our own advice on the matter. Is the Minister telling me that no other jurisdiction in the European Union has incorporated these guidelines in legislation or regulation? I doubt that no country has done so. Has the Minister examined the way in which the directive has been implemented in each jurisdiction? The difficulty is that the Minister stated that his legal advice indicates that, for example, the Irish Aviation Authority may not be installed as regulator, but we know that eight member states have their equivalent of the IAA as the competent authority and the world has not caved in.
They have been allowed to do so as sovereign states within the EU. The same argument applies in regard to the amendment. Can the Minister give us that assurance which nobody else has? I suspect that he cannot and we will have to examine it ourselves in order to find out. I would be very surprised if we do not find it because the Bill goes beyond dealing with the 2002 directive by making reference to 2015 decisions. We are asking that it take account of the 2018 guidelines.
We all want to achieve the optimum standard of noise regulation. It is unusual although not unprecedented for privilege to be waived. Instead of members trying to deal with this in the dark, it would be very helpful for the committee in framing further or altered amendments for Report Stage to have the legal advice, or a synopsis thereof, in order to achieve the optimum regulation. Could that be made available? If the Minister is not willing to consider waiving privilege, will he give us a synopsis of the legal advice such that we can use it to work towards the same aim?
Between now and Report Stage, which I hope will take place next week, I will ask my officials to give all interested parties an accurate flavour of the legal advice. Obviously, I cannot breach privilege, but members will be given an accurate flavour of the legal advice. That will be done in a spirit of goodwill such that members are not left in any doubt about what are the bones of that advice. Would that be agreeable to members?
I ask that the Minister also provide an analysis of other jurisdictions. That was done in regard to competent authorities. The Minister is relying on the fact that this cannot be done in Europe, so I presume the officials will be able to show us what has been done elsewhere in Europe in this area.
We touched on the WHO report when we were discussing definitions and a balanced approach. I expressed the view that it would be desirable for that report to be reflected in this legislation. I am swayed by the argument of Deputy Darragh O'Brien that such an addition should be acceptable. All members can take legal advice between now and Report Stage in order to make a call on it at that Stage.
That is fine. That is quite reasonable.
Ironically, if the Minister had brought forward legislation when the EU directive was initially issued, there would have been no difficulty because the legislation would have been in place in advance of the updated guidelines. The delay has meant that new and more up-to-date scientific guidelines have since been produced. We are trying to take account of that and ensure that the new competent authority does likewise. I know from the work of my colleague, Deputy Darragh O'Brien, that some airports, such as Manchester Airport, take account of the new guidelines. As proposer of the amendment, I accept what the Minister has stated and am prepared to withdraw the amendment. However, I reserve the right to reintroduce it on Report Stage if we are not satisfied by the level of detail supplied to members of the committee.
It would be useful for the Minister's officials to obtain the minutes of the meeting of Fingal County Council held earlier this week. The council officials suggested that the WHO guidelines would have to be transposed into primary legislation in order for the council to implement them. We are the people charged with introducing primary legislation.
The Minister's suggestion is useful. I hope that he accepts the bona fides of the proposers of the amendment which aims to strengthen the legislation by using the best scientific monitoring and best environmental guidelines available. It is incumbent on us to do so.
Fianna Fáil will also seek legal advice on the basis of what the Minister said. It would be useful to meet his officials and the earlier the better if it is proposed to take Report Stage next week.
It might be taken next week.
It is important that we be given advance notice of when it is to be taken. This proposal does not contravene the regulation; rather, it is an addition that would strengthen it. We should be looking to ensure best practice.
I accept the bona fides of the Deputies and applaud what they are trying to do. Whether we have the capability to do it is the only issue.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 10, line 7, after "Approach" to insert ", as developed and recommended by the International Civil Aviation Organization,".
I would like to hear the Minister's response to this amendment.
It similarly seeks to make an addition to the regulation. I am unable to accept it on technical legal drafting grounds as presented by the Office of the Parliamentary Counsel which is part of the Attorney General's office. It is, I am told, sufficiently clear from the recital in EU Regulation No. 598 that the balanced approach is a concept developed by the International Civil Aviation Organization, ICAO. As the regulation has direct effect from a technical drafting perspective, it is not required to be repeated in the Bill.
It is not required, but it would strengthen the Bill. We are trying to improve the legislation. The ICAO is the international body in this area. I urge the Minister to reconsider the amendment because we will continue to push for what is proposed.
This brings us back to the first Opposition amendment in which I sought a definition early in the Bill of "balanced approach" in two respects, the first of which was this proposal. The other, the basis on which the Minister opposed the amendment, concerned the more recent World Health Organization guidelines. The Minister's argument was against that proposal, but there should be no problem in including this one. I would be happier to have it included in some shape or form than not at all.
Amendment put and declared lost.
I move amendment No. 37:
In page 10, to delete line 9 and substitute "the stakeholders, including local residents groups and individual residents, are consulted in a transparent way on the intended actions:".
This amendment provides for consultation with residents. Local residents feel left out of the process and have very legitimate concerns about planning issues, in particular, the retrospective changes in the planning of flights and other operations at the airport. The Bill is extremely technical. Can the Minister provide assurances that it does not provide for these changes? If it does, will he point to where exactly in the Bill it is provided for because I have been unable to find it and would like to table an amendment on Report Stage? It is vital that there be consultation with residents and that they be given an opportunity to air their concerns, be it about health, noise pollution and so on, in respect of which there are no safeguards provided for in the Bill. There have been references in the media to residents having the option of moving out of the area.
Many of the residents have lived in the area for decades. It is vital there is consultation with the local community. I hope that the Minister will accept the amendment in order that consultation will take place.
I am supportive of two-way consultation that is meaningful. Very often people are consulted and told what is going to happen. I am sure Deputy Munster will agree that it is important that the residents are not only consulted in a transparent way but in a meaningful way and that this is knitted into the process. Very often stakeholders are met in pecking order and the determining factor tends to be economic rather than social grounds. It is important that the residents are stakeholders on an equal footing.
For reasons which I have already made clear, which are good reasons, I cannot accept this amendment. We have to be careful about taking possession of the argument that there are some people who are in favour of including the residents and others who are not. Everybody is in favour of the residents having the maximum possible input. The text which Deputy Munster seeks to amend is taken directly from EU Regulation 598 and I am unable to amend an EU regulation. I agree that the local residents need to be included in the review. The inclusion of local residents groups and individual residents is provided for in subsection (e) which states: " the stakeholders are consulted in a transparent way on the intended actions;". Section 9 also provides for a 14 week public consultation on the draft decision of the noise regulator.
Deputy Murphy, through no fault of her own, was not here earlier when we were discussing the issue of residents. EU Regulation 598 states that if the assessment referred to indicates that new operating restrictions may be required to address a noise problem at an airport the competent authority shall ensure that the process of consultation with interested parties, which may take the form of a mediation process, is organised in a timely and substantive manner, ensuring openness and transparency as regards data and computation methodologies and that interested parties shall have at least three months prior to the adoption of new operating restrictions to submit comments. It also states that interested parties shall include at least local residents living in the vicinity of the airport and affected by air traffic noise or their representatives, the relevant local authorities and representatives of local businesses based in the vicinity of the airport whose activities are affected by air traffic and the operation of the airport. This is a direction to the noise regulator, which, I think, meets what Deputy Munster is seeking in her amendment.
Can I ask the Minister about------
I ask the Deputy to allow me to finish. I am sure that all members of the committee will agree that noise regulation at the airport needs to be an open and inclusive process that respects the real interests of local residents too. I have provided for this in the Bill. The Bill is fundamentally in favour of sustainable development of the airport in a way that balances the commercial ambitions of the DAA, the national economic interest, the needs of business, tourism interests and the legitimate rights of local residents. I could have listed other stakeholders that are to be considered, but I did not. One such stakeholder would be relevant airport operators, who are lower down on the list than the residents.
Is the vicinity of the airport defined?
I do not think so. It is definitely not defined at all and it is not defined in the Bill either. That is to give the regulator a certain amount of scope and flexibility.
Amendment put and declared lost.
The next amendment is in the name of Deputy Coppinger who is not here, but amendments Nos. 38 to 41, inclusive, 44, 45, 49, 50, 84, 87 to 95, inclusive, 100, and 102 to 109, inclusive, are related and may be discussed together. Amendment No. 88 is consequential on amendment No. 87. Amendments Nos. 90 to 95, inclusive, are consequential on amendment No. 89. Amendments Nos. 103 to 109, inclusive, are consequential on amendment No. 102. Amendments Nos. 38 to 41, inclusive, 44, 45, 49, 50, 84 to 95, inclusive, 100, and 102 to 109, inclusive, may be discussed together. Everybody can come in as they wish and the Minister will respond and we will move over and back on the amendments. When we are finished with that, we will vote on each of the amendments.
Amendment No. 38 not moved.
The next person after Deputy Coppinger is Deputy Munster, if she wishes to comment. It is up to her.
I move amendment No. 39:
In page 10, between lines 13 and 14, to insert the following:
“(c) the likely effect of the identified noise mitigation measures and operating restrictions (if any) is thoroughly evaluated in relation to its projected impact on the well-being and health of local residents;”.
The Chairman can go ahead for now, thank you.
I will not repeat all the points we made this morning but the same point is repeated at various parts of the Bill as to the process of regulation and what needs to be taken into account as part of that process. All of these amendments are seeking to include health considerations along with a big list of other stuff that also has to be taken into account. When we made the point this morning, the Minister said that health is covered in the regulation anyway so there is no need for it and that was his first argument. The Minister's other argument was that he will not add it in as part of this at this stage. Those two points are, in part, contradictory.
It also comes back to the point I made earlier about cost-effectiveness. For example, under the process of aircraft noise regulation, the Bill states, "the competent authority shall ensure ... the Balanced Approach" and it goes on, and takes into account the likely cost-effectiveness of the measure. The Bill later states that the following combination of measures must be considered with a view to what is the most cost-effective. All of these amendments are simply seeking to ensure that the impact on health is also factored into the considerations when the competent authority is adjudicating and implementing the balanced approach. It is not tying its hands. It is just saying it must be mindful in assessing whatever approach it adopts to include health as a consideration.
The Minister said he is going to come back in the context of Deputy Troy's amendment and the guidelines and maybe we can factor something in around that. The point here, for all of these amendments, is we cannot have this Bill without any reference to health specified in it or any reference in it to the modern guidelines and best scientific advice, because the impetus behind this regulation is to deal with and restrict aviation practices and the noise they create to benefit the health of residents. The idea that we could not put that somewhere in the Bill is mad. I am not going to drone through the pages of other criteria that the competent authority has to take into account but it does not refer to health. I am not saying we should take out cost-effectiveness and replace it with health considerations. I am not saying health considerations have to be the only thing. I am just adding it in as one of the factors that should be considered when the competent authority is doing its job.
I have one very quick point about that. The name of the Bill is the Aircraft Noise (Dublin Airport) Regulation Bill 2018. If the health measures are not included, what is the Bill about? I completely understand this is a national facility and we are looking at mitigating effects, but if health measures are not counted, what is the Bill about?
I support the points that have been made.
I will firstly respond to Deputy Catherine Murphy's point. We dealt with health earlier and we agreed that point. Health considerations are specifically singled out in the regulations. I will read from the preamble:
The importance of health aspects needs to be recognised in relation to noise problems, and therefore it is important that those aspects be taken into consideration in a consistent manner at all airports when a decision is taken on noise abatement objectives, taking into account the existence of common Union rules in this area. Therefore, health aspects should be assessed in accordance with Union legislation on the evaluation of noise effects.
It is very specific about that, so it is very important.
Is the Minister reading that from the EU regulation itself?
It is on page 2. I can hand it to the Deputy.
It is No. (11). The proposed health impact assessment which is put in there is new wording. We cannot introduce new terms to this.
Subsections (2) and (3) of section 9, as I have said, are directly from EU regulation 598 and, as I have explained, I am not able to amend in any way the requirements set out in an EU regulation. That message has to be hammered through because that is legal advice. I am not able to amend it in any way. It is in the regulations.
The health of local residents is a hugely important and vital issue, as evidenced in the regulation. I do not want to repeat this ad nauseam, but putting into legislation something which is already in the regulations seems strange and unnecessary, but it is important and not contradictory to say that and point out that it is in the regulation.
The health of local residents is hugely important. Article 1 of EU regulation 598 sets out that the objective of the regulation is "to facilitate the achievement of specific noise abatement objectives, including health aspects". The very purpose of the regulation, and therefore this Bill, is "to limit or reduce the number of people significantly affected by potentially harmful effects of aircraft noise, in accordance with the balanced approach". Article 1 has direct effect, in addition to regulation 598 and other existing European noise and environmental directives which this Bill interlinks. I am assured that health aspects are already embedded in this legislation.
I accept the point. There are a whole number of different amendments in this and the health impact assessment is an add-in, something different, and it would obviously put a more considerable burden, as it were, on the competent authority in evaluating these measures. I do not have a problem with that because, if it were really doing its job properly, carrying out an impact assessment from a health perspective, something we do not do enough in this country, it would be precisely the type of impact assessment that should be done. We are all used to environmental impact assessments but we are not so used to health impact assessments. I realise that is raising the bar but that is appropriate in the context of this legislation, although I realise I am pushing the boundary on that. I will park that for now, with the right to re-enter it, but, having genuinely said that, I do not accept what the Minister says about the other points on health. We have been here for in the region of four hours, so maybe I am just not getting it. On one hand, we are being told we cannot add something, then the Minister is reading something which specifies health aspects, then saying nowhere in our legislation is there a reference to health considerations but is then saying that he cannot take away or add anything.
Obviously, the Minister has taken it away because health is not mentioned anywhere in the Bill. If it is so much an integral part of the regulation, which it clearly is, there is no impediment to specifying it in some format and I have not heard any good reason for not doing so. I would like to explore the idea of a health impact assessment and I reserve the right to introduce an amendment on that. The Department is correct, however, that that would be pushing it. I do not have it in the definitions either and I would need to have it in there. While that is a whole new arena, mentioning health is not. It is much more straightforward. It is striking that every Opposition committee member has said clearly that they expect health and the guidelines to be factored in in some format when we get to Report Stage. I hope the Minister is hearing that message because Opposition members will get together to agree on amendments if the Department does not factor in health. Hopefully, in the promised discussions in the next week, we can all come up with a wording with which we could all live.
We will move on as we have discussed all of the amendments.
Will the Minister give us an assurance that we can look at that type of approach? Otherwise, members may want to press amendments.
I certainly agree we can look at this before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 10, between lines 15 and 16, to insert the following:
“(d) the effectiveness of the identified noise mitigation measures and operating restrictions (if any) is thoroughly evaluated in relation to their impact on the protection of human health;”.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 10, lines 24 and 25, to delete “most cost-effective measure or combination of measures” and substitute “effectiveness of the measure or combination of measures in relation to cost and the protection of human health”.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 11, line 8, to delete “FCC” and substitute “CAR”.
Amendment, by leave, withdrawn.
Amendment No. 43 not moved.
I move amendment No. 44:
In page 11, line 17, after “assessment” to insert “or Health Impact Assessment”.
Amendment, by leave, withdrawn.
I move amendment No. 45:
In page 11, line 21, after “assessment” to insert “or Health Impact Assessment”.
Amendment, by leave, withdrawn.
I move amendment No. 46
In page 11, line 27, to delete “may” and substitute “shall”.
This amendment is slightly related to the one agreed earlier in terms of the Minister’s ability to make regulations under the Act. Section 9(9) states “the Minister may, by regulations made under section 6, prescribe dispute resolution procedures applicable to a dispute which arises between the competent authority and another person”. My amendment proposes to change the term “may” to “shall”. Members have no control over this process unless we require the Minister to do that. This has to be seen in the context of my other amendments which bring this aspect of the regulation before the House. The amendment accepted earlier provided that the Minister had the right to make regulations and lay them afterwards, except with this clause concerning dispute resolution in which the House will have an input.
I will not be accepting this amendment. The Bill provides for extensive public consultation, technical discussions between the Dublin Airport Authority, the Irish Aviation Authority and slot co-ordinators, a robust appeals process and, finally, recourse to the courts for judicial review. It was considered prudent to include in the Bill the power to make regulations in circumstances where further dispute mechanisms may be required, even if the need is unlikely, given what I have described, especially in respect of recourse to the courts.
If this is important enough to put into the legislation, it would require the word “shall” rather than “may”. One needs to be prepared and have procedures in place.
This is actually quite important. It is interesting that the Minister referred to a robust appeals mechanism and access to the courts.
There are a few people in the Gallery who nearly fell off their seats when they heard that. Access to the courts is prohibitive for citizens. It is not a level playing field in that regard. Sadly, people have borne a heavy burden with such cases in the past. The way the legislation is drafted means the appeals process is not accessible. There is no question that it leaves it in that arena which disenfranchises residents. My amendment proposes that the Minister would have to deal with it. As he said earlier, it probably will not arise all that much. However, if it does, then my amendment would ensure the Minister would have to bring it before the House. It is an important amendment.
The Minister outlined an appeals mechanism. One needs deep pockets for judicial reviews, however. It is not like taking a court case where if one wins, one gets one’s costs. In a judicial review, one is paying the full costs. It is only wealthy people who have that recourse.
I have some experience of disputes concerning Kildare County Council’s planning decisions for Weston Airport. Even in that scenario, which is minor compared to Dublin Airport, getting expertise can be expensive for residents’ groups which rely on voluntary fundraising. A realistic mechanism has to be put in place to ensure there is an honest broker in disputes. There is a validity in strengthening the provisions with this amendment.
I am not completely convinced by the arguments because of the availability of all these appeal mechanisms, the openness to judicial review and the transparency in the process. I sympathise with the point made about costs. However, the Minister has the option to intervene in a dispute resolution. The term “shall” would probably put too much onus on the Minister. The provision, as drafted, is adequate.
Nobody is talking about the Minister intervening in a dispute. It is about putting procedures in place for dispute resolution.
That is the option that could be taken. There would be pressure on the Minister to intervene at the time.
Even if there is, it does not negate the point. The Minister thinks it is a robust appeals process but many people would disagree. Changing it in the manner I have suggested does not negate the Minister’s appeals process as it stands. The Minister stated he has the option but my amendment proposes he should have the option.
Exactly. The Minister should have the option.
However, if there is a dispute where the Minister’s intervention is called for, then it should not be left to the Minister to decide. I know this Minister might be proactive in this regard but he might have a successor who might not have the same approach.
As they always say in these situations.
I do not want to bind my successors.
That is the problem. We do.
From our experience, it is better that the Minister bind his successors.
I do not. What I want to do is to give it the option and discretion and ensure it will feel public pressure to use that discretion. That is undoubtedly adequate.
Amendment put and declared lost.
Amendments Nos. 47 and 48 in the name of Deputy Clare Daly are related and may be discussed together.
I move amendment No. 47:
In page 11, line 31, after "authority" where it firstly occurs to insert "or any organisation or individual impacted by airport noise".
These amendments are even more important. We must bear in mind that this section deals with what we will call the normal EU Regulation No. 598 application process which is slightly different from that in the various sections. Part 3 deals with planning applications. It involves normal queries and how the competent authority will deal with them outside a planning application. The legislation states only the airport authority may, by notice in writing given to the competent authority, request the competent authority to assess a noise issue. I am looking to ensure the airport authority or any organisation or individual impacted by airport noise would be able to approach the competent authority because as of now only the airport authority is allowed to initiate the process under EU Regulation No. 598. The problem concerns the criteria. On the one hand, the DAA may do so at its discretion. That has to be changed. What does "may at its discretion mean"? What is the threshold? What if the DAA decides not to go to the competent authority? Who would stop it in that regard? Why does the DAA have control over whether it should do so? Should it not be mandatory? If it is, what is the threshold? The DAA must assess the matter in a manner that is transparent. The two amendments are critical; otherwise, we are not specifying a route for persons outside the DAA. I am adamant that the amendments should be accepted.
I agree partially with my colleague. If we are talking about fairness and a balanced approach, other interested parties should have a mechanism outside the designated five-year period to raise concerns with the competent authority. On us having confidence in the independence of the competent authority and if it can determine whether a request to intervene is warranted, we know that, unfortunately, in certain instances, there are people who make spurious requests. We can look at what happened in the case of Apple where people made spurious claims and objections that held up the process. I am not saying people would do so, but the competent authority should be allowed discretion to determine whether something warrants further investigation. I support amendment No. 47 which would include a notice in writing by the airport authority or any organisation or individual impacted by airport noise, but it should be left to the discretion of the competent authority to determine whether the matter warranted further investigation
What was the thinking behind making it so one-dimensional when it was being framed?
The purpose of the section is to allow the regulated entity to seek a regulatory review in very limited circumstances where air traffic operations change dramatically and in a way unforeseen by the regulator when making its determination.
It would be in exceptional circumstances only based on material changes to the operational environment of the airport. Even then, the noise regulator will be the one to determine whether or not the situation has changed significantly enough to warrant a review and if it does, that process will be open and subject to consultation and appeal, etc. Therefore, the general public is still empowered. There is extensive public consultation and an appeals process and the regulator is empowered to respond to non-compliance by the airport with enforcement of a noise determination. Residents can go to the competent authority with complaints and the competent authority can and, obviously, will look at them.
I support both my colleagues in respect of amendment No. 47. Again, it is about a balanced approach. It cannot be for the DAA alone to decide whether to seek a review. As things change, residents need to be able to do so and not just in the five-year period. The Minister mentioned exceptional circumstances. I have always supported responsible and reasonable growth of the airport, which is very important. Residents and people in north Dublin also support this. As I said to the Minister during meetings of this committee in the summer, the airport is a major employer and investor and a crucial part of our national infrastructure. Having said that, impacted communities need to have a say as well. It is important, particularly with amendment No. 47, that this balance is struck. By putting this amendment forward, Deputy Clare Daly is striking that balance and showing a balanced approach.
I agree with Deputy Troy about possibly allowing the competent authority to decide on each case so that a complaint or observation can be made but that the competent authority cannot be directed to deal with every single one of them because someone could write to the authority every day, as happens from time to time. We would still be giving the competent authority the discretion to decide whether the matter is sufficiently serious to take forward. Amendment No. 47 strengthens the legislation and makes it better. I see no reason the Minister would not take the amendment on board, whereas I can understand why he would not accept amendment No. 48.
This is not about giving the DAA preference because residents can and will raise issues with the regulator. If they do not have confidence in the regulator, we have a serious problem. I think they will have confidence in the regulator, which is the objective of this legislation. The regulator must then make a decision. This section requires the DAA to prove a case and do a lot of work. It is very burdensome on the authority.
There is a misconception on the part of the Department with regard to this part of the regulation. The Minister talks about appeals processes as if everything that happens in the airport that has a noise implication goes through the planning process first, life goes on as normal and nothing happens outside either the noise plan that is produced every couple of years or the planning application when some major change is proposed and people have an input under Part 3 of the Act. This legislation is about how the noise regulator does its job. The Minister asks how the noise regulator would know whether there is an impact from noise. At the moment, the Bill provides that the noise regulator can only intervene when the DAA goes to it. There is no facility for a resident to do so. What happens if there is a change to aircraft noise testing? I live in River Valley and planes keep me awake at night. There is no mechanism to address this because the matter falls outside the review that takes place every couple of years and the planning application. I feel I am being negatively impacted by noise. As this is specified, there is no route for me to go to the competent authority because the role of the competent authority is only to assess applications that come from the DAA, not from residents. I thought the Minister would go along with this amendment because I thought the current provision was a clear oversight. I did not think it was a big deal.
I take the point that amendment No. 48 may be over prescriptive. My thinking on that one was that the competent authority may, at its discretion, comply with the request.
What I was doing there was trying to make sure that the competent authority at least dealt with the application. I did not want to prescribe a big unwieldy process as to how it would deal with the assessment. What I meant was that the competent authority would not be able to simply ignore the application. It would at least have to write back to the person making the application and let him or her know that the authority was not invoking the procedure for whatever reason. That was all I was thinking of. I was not stating the authority would be obliged to invoke the whole 18-month aspect or anything like that. Perhaps I did not get the balance right on that one.
The Deputy was probably referring to benchmarking.
Yes, I may not have got the balance right on that and I can look at it on Report Stage. The first one though absolutely is a flaw in the Bill.
I support amendment No. 47. For the life of me, I cannot understand why it would be put in the way that it is now, without reference to any organisation. Why would the airport authority go off and raise issues about noise impacting on people outside of the airport?
Earlier, the Minister talked about the community around the airport having confidence in the regulator. How that is stacked up in respect of the balance of rights feeds into that confidence. As has been said, the Bill does seem to be very one-sided in how it is framed. That undermines the very point the Minister is making on the confidence people might have in the regulator. This amendment is the kind of thing that helps to create the balance that could feed into creating the confidence to which the Minister referred.
There is merit in the arguments that have been made. There is an obvious downside in that there might be an avalanche of complaints and difficulties. What has been said about there being a case for what has been suggested as an approach has some validity. I am particularly taken by the argument that those measures, those appeals which I mentioned, are not accessible to everybody. We are trying to protect people who are vulnerable. What I will do is try to meet members' arguments on Report Stage. We will see if we can amend the Bill in a way that is acceptable and that gives greater access to the regulator for ordinary people to be able to complain at less cost than might be the case. I am not saying we are going to produce money but we will try to make it more accessible. I suggest that it be withdrawn and we will look at putting in an amendment.
I suggest, by way of compromise, that I will withdraw amendment No. 48 if the Minister accepts amendment No. 47. Otherwise, I will press amendment No. 47 to a vote.
I am not going to accept amendment No. 47.
Then I will press it to a vote.
What I would like to do is to look for an agreement that would encompass what Deputy Clare Daly's amendment No. 47 seeks to do. It is dangerous to be accepting things which-----
Which are not the Government's.
-----have not been scrutinised.
It is very dangerous for us, when we are going to win a vote on this amendment, to accept a promise of consultation later on. In accepting the Minister's promise of consultation, if we agree a better wording I will definitely support the new amendment. At the moment, however, my wording is the best wording in town. If the Minister wants to come along and change that afterwards, if it is accepted, I will be openly part of that process. For, now, however, the best way of ensuring access is that amendment No. 47 is passed. If the Minister wants to improve it when we come back, that is fine. I will definitely call a vote on amendment No. 47 if the Minister is not willing to accept it.
We will certainly accept amendment No. 47 if that is the way things are. We can always amend it if we want to between now and Report Stage anyway.
Exactly. That is the point and precisely what I said at the start, that I would withdraw amendment No. 48.
I am seeing the merit in Deputy Clare Daly's argument now and I agree with her.
The Minister will accept amendment No. 47 and Deputy Clare Daly will withdraw amendment No. 48.
I am accepting amendment No. 47 and we will look at amendment No. 48.
Amendment agreed to.
I move amendment No. 48:
In page 11, line 34, to delete “may, at its discretion,” and substitute “shall”.
I am withdrawing the amendment and reserve the right to revisit it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 12, between lines 16 and 17, to insert the following:
“(e) an evaluation of the impact on the protection of human health of the various measures considered;”.
Amendment, by leave, withdrawn.
I move amendment No. 50:
In page 12, between lines 16 and 17, to insert the following:
“(e) an assessment of the impact of the decision on the well-being and health of local residents;”.
Is the Deputy pressing the amendment?
Amendment, by leave, withdrawn.
Amendments Nos. 51 to 53, inclusive, 56, 98, 113, 116, 129 and 132 are related and may be discussed together.
I move amendment No. 51:
In page 14, to delete lines 5 to 11 and substitute the following:
“(17) Subject to subsection (18), a noise mitigation measure to be introduced by virtue of a regulatory decision adopted under subsection (15)(a) shall—
(a) if no appeal under section 10 is made, within the appropriate period referred to in section 10(2)(a), against such regulatory decision, come into effect on the expiration of such appropriate period, and
(b) after so coming into effect, remain in effect until revoked, or revoked and replaced, by the competent authority or the appeal body.”.
I agree in principle with amendments Nos. 52, 53 and 56, which have been tabled by Deputies Clare Daly and Munster. During a briefing with officials, Deputy Clare Daly pointed out the inconsistency with the planning and development provisions. While I am not accepting the wording of the amendments put forward by the Deputies as they have been drafted, the amendments I am putting forward will achieve the same object and catch all consequential amendments required throughout the Bill. This will make it clear that any noise mitigation measures imposed as part of a regulatory decision by the noise regulator may only come into effect when the 28-day appeal period is completed. Where an appeal is made, any decision of the noise regulator is put on hold until such time as the final decision is made on the appeal. I thank the members.
Are members clear on what the Minister is saying?
He is saying that he is putting a stay on any action until the appeal process has expired. It is giving confidence that nothing can be done until such time as an appeals process has expired.
Correct, I am referring to a period of 28 days.
That is fine. I want to ensure members are aware that there will be no debate as we go through the rest of the amendments.
Amendment agreed to.
I move amendment No. 52:
In page 14, line 6, after “subsection (15)(a)” to insert “except in circumstances where an appeal has been lodged”.
Amendment, by leave, withdrawn.
I move amendment No. 53:
In page 14, line 9, after “authority,” to insert “unless an appeal against the decision is lodged with the appeal body,”.
Amendment, by leave, withdrawn.
Amendments Nos. 54, 57, 71, 74, 114, 117, 130 and 133 are related and may be discussed together.
I move amendment No. 54:
In page 14, line 15, after “defer,” to insert “if immediate implementation is not possible and”.
I am confused myself with these amendments now. Again, this is partially linked to the last amendment we dealt with a minute ago. It seemed to me that there were clauses in the Bill whereby a recommendation of the authority could be avoided for spurious reasons. I am referring to delayed implementation. I am not sure if the Bill is doing what I thought it was doing. To be honest, I found it hard to negotiate what was being said in it. It appeared to me that it was providing an out. The Bill refers to deferring, "for reasons stated in the notice, the coming into effect of a noise mitigation measure".
We are talking about the deferring of a noise-mitigation measure, or a measure that would enhance the environment for local residents. It is suggested a measure would be deferred if not practical to implement. How can we include a provision that stops the clause being used to delay and frustrate the implementation of a noise-mitigation measure? I am seeking to include a provision meaning there cannot be a delay for ridiculous reasons, for example. I was not entirely happy with my amendment. I proposed the insertion of "if immediate implementation is not possible". At all times we should be trying to have whatever decision the competent authority makes implemented immediately. I am worried about a reference in the legislation to an ability to defer so I am trying to include something to cushion it by stating the only reason one might defer is if immediate implementation is not possible. I did not know the correct technical term, or whether it should be "possible" or "practicable". I am not sure but the amendments are trying to avoid what I describe. I am not sure whether my amendments succeed or whether the Minister has others that might address the issue. That is my current position.
I see what Deputy Clare Daly is trying to achieve but we must be cognisant of the fact that some noise-mitigation measures would take time to implement. For argument's sake, a noise buffer zone could not be constructed in a matter of a day, two days or three days but ceasing a certain activity might be possible within one, two or three days. How can the Minister guarantee that when the competent authority hands down a noise-mitigation recommendation that clearly sets a realistic timeframe for implementation, it will not be abused or exploited in some way? Preventing this is what we are trying to achieve here.
I am trying to understand the kinds of reasons for which the competent authority might suggest a deferral. Could it be on the basis of cost? If so, would that be acceptable? Some mitigation measures in regard to inland water and sea pollution have been left on hold for many years because the money has not been available from the local authority to implement them, yet there was ongoing pollution. Who will be paying the piper? Has the Minister any thoughts on the reasons there could be deferrals?
I thank Deputy Clare Daly for explaining what she meant. It was somewhat difficult to imagine the circumstances she was describing. I am not accepting these amendments because I do not want to tell the noise regulator when or in what circumstances measures to be imposed by virtue of regulatory decision should come into effect. It will be a matter for the noise regulator to determine at its discretion and to detail its reasoning and its decision in a report. One should remember the regulator can enforce compliance and bring court proceedings against anyone, including the DAA.
Did the Minister answer anything? Both of my colleagues made excellent points and articulated the issue better than I did. This is about noise mitigation so our objective is to get the noise-mitigation measures in place as early as possible. I agree with Deputy Troy's point that implementation can take time, but stopping a certain activity could be done immediately. That is why I included "if immediate implementation is not possible”. Obviously, the authority should have power where a measure requires a lead-in period but Deputy Brendan Ryan's point in this regard is exactly right in that if we are giving it the power of deferral, we have to include some caveats; otherwise it should not be given the power to defer because its job is supposed to be implementing noise-mitigation measures. The Minister is the one who introduced the concept of deferring. We are just trying to add safeguards, in a common-sense way. We realise some things cannot be done overnight and that there may be a lead-in time but the authority has to be able to justify its decisions and there cannot be spurious reasons given. I am not happy with the Minister's proposal at all. I am not saying mine is the solution but what the Minister said in his answer is definitely not. It was a worrying answer.
Is the amendment being pressed?
The Minister owes us a bit more than that because this is fundamental.
The Minister has given his reply, unless he wishes to comment further.
Deputy Troy is correct that the Bill gives the regulator the power to dictate how measures are implemented. That is a perfectly adequate answer. It is for the regulator. I am not prepared to accept this amendment.
I do not know whether we are at cross-purposes. Deputy Ryan said that if a measure has been decided upon and the competent authority decides it is to be deferred, it must give a reason if it is not obvious. Deputy Daly is trying to improve the Bill. Nobody wants to put on a ridiculous shackle requiring the implementation in a day of a measure that is not implementable in a day. That is not the purpose of the amendment. The purpose is to ensure that, if there is a deferral, reasons must be given, be they associated with the cost, the timeframe-----
The regulator does have to give a reason.
In that case, it would have to give a reason.
Giving a reason is just one aspect. The regulator could state that ideally a measure should be implemented but that its implementation must be deferred because it believes the DAA does not have the money to implement it. In that case, what is the point? The regulator is supposed to provide certainty. This is a get-out-of-jail clause. Within what parameters will the regulator make decisions that can allow a notice of the kind in question?
Does the Minister envisage the DAA saying it cannot afford to implement a measure this year but could in two or three years? Would this be an acceptable reason for a deferral?
I do not know the answer to that question. It would not be up to me at the time. The regulator needs discretion and it needs to give a reason for its decision in a report. That is a perfectly adequate answer to this question.
If we are deciding on this legislation, the onus is on us to establish parameters regarding what reasons for deferral are acceptable to us as legislators.
It is a matter of a balance of rights. The legislation is way too open if it does not contain parameters within which the regulator will be operating.
The views of members are quite clear. Is Deputy Daly pressing her amendment?
I expected the Minister to say something other than "No". Was there something else?
This is fundamental. We want an independent competent authority that is capable of making decisions. We all want that and nobody is being ridiculous here saying he or she expects everything to be implemented immediately. There are practical considerations that militate against that happening but what we do not want is what Deputy Brendan Ryan highlighted, namely, the use of some nefarious financial reasons or other such reasons. The Minister is the one who mentioned deferring. It is written into the legislation that the authority is being given the power to defer. We are not proposing taking that power from the authority but just proposing the insertion of the words "if immediate implementation is not possible". Perhaps that is not the best wording. It would overcome the problem of money being used as an argument. Logistical arrangements such as those referred to by Deputy Troy would take time, which is different. It is a matter of trying to strike a balance, and saying "No" does not deal with that.
The Deputy's point has been well made and supported. The Minister has made his view clear.
It will be a matter for the noise regulator to make a determination at its discretion and to detail its reasoning for its decision in its report.
As drafted, the amendment just would not work. If Deputy Clare Daly wishes, she can come back on Report Stage.
Amendment put and declared lost.
Amendments Nos. 55, 72, 115 and 131 are related and will be discussed together.
I move amendment No. 55:
In page 14, line 19, to delete “section 25” and substitute “section 25(a)”.
These are technical drafting amendments which make specific reference to section 25(a) and (b) of the Bill, as the case may be, rather than section 25 in general. Section 25(a) deals specifically with the timing and operating restriction coming into effect by virtue of the decision made by the noise regulator under section 9 or the board under section 10. Section 25(b) refers to decisions made under the Planning and Development Act. Therefore, clarity is provided that the amendment refers specifically to decisions made outside the Bill.
I must mention that I may need to introduce a technical amendment on Report Stage to update the SI number of the environmental noise directive.
Amendment agreed to.
Amendments Nos. 56 and 57 not moved.
Section 9, as amended, agreed to.
SECTION 10
Amendments Nos. 58, 118 and 119 are related and will be discussed together.
I move amendment No. 58:
In page 15, to delete lines 23 and 24 and substitute the following:
“(b) (i) The competent authority shall be a party to the appeal.
(ii) The airport authority may, at its discretion, be a party to the appeal notwithstanding that it is not the appellant.”.
These amendments make it clear that the noise regulator is always party to an appeal made against a regulatory decision. For consistency, it is simply replicating similar decisions in the Planning and Development Act whereby the planning authority is always party to an appeal against a planning decision.
Amendment agreed to.
Amendments Nos. 59 and 120 are related and will be discussed together.
I move amendment No. 59:
In page 16, to delete lines 1 and 2 and substitute the following:
“(4) (a) Subsections (1) to (3) of section 9 shall, with all necessary modifications, apply to the Board’s consideration of the appeal as if any reference to the competent authority in those subsections were a reference to the Board.
(b) Subsections (4) to (7) of section 9 shall, with all necessary modifications, apply to measures and restrictions forming part of the Board’s consideration of the appeal as those subsections apply to measures and restrictions referred to in those subsections.
(c) Paragraphs (b), (c) and (d) of subsection (8) of section 9 shall, with all necessary modifications, apply to the Board’s consideration of the appeal as if any reference to the competent authority in those paragraphs were a reference to the Board and if, by virtue of this paragraph, the Board gives a direction under such paragraph (d) as so modified, the reference to direction in paragraph (e) of subsection (8) of that section includes such direction so given by the Board.
(d) The Board may, in its decision under subsection (8)(a) and its related report (subsection (8)(b)), accept or reject all or any part of either or both—
(i) the relevant regulatory decision the subject of the appeal, or
(ii) the report prepared under section 9(12) and revised under section 9(15)(b) which relates to such relevant regulatory decision.”.
Are these technical amendments?
No. I can address them, if the Chairman so wishes. Would he like me to do so now?
Yes in order that members will be clear.
The amendment sets out that An Bord Pleannála will undertake all of the steps required under EU Regulation No. 598 to ensure the application of the balanced approach. It makes reference to the process to be undertaken by the noise regulator under section 9 and replicates it to provide full powers for the board. It also allows the board to undertake, as necessary and appropriate, an appropriate or environmental assessment in its consideration of an appeal against a regulatory decision. The amendment ensures that in advance of noise mitigation measures or operating restrictions to be imposed as part of An Bord Pleannala's decision on appeal, the full requirements of EU Regulation No. 598 will have been met, while the board will undertake its own assessment. The amendment also allows the board to adopt all or part of the report prepared by the noise regulator in its decision.
Amendment agreed to.
Amendments Nos 60 to 67, inclusive, 69, 70, 73, 76 to 79, inclusive, 121 to 128, inclusive and 134 are related. Amendments Nos. 60 to 65, inclusive, 67, 69, 70, 73, and 76 to 79, inclusive, are consequential on amendment No. 66, while amendments Nos. 122 to 128, inclusive, and 134 are consequential on amendment No. 121. Therefore, amendments Nos. 60 to 67, inclusive, 69, 70, 73, 76 to 79, inclusive, 121 to 128, inclusive, and 134 will be discussed together.
I move amendment No. 60:
In page 16, line 3, to delete “subsection (8)” and substitute “subsection (8)(a)".
Could we have an explanation for the amendments, please?
These amendments make it clear in two subsections that An Bord Pleanála makes a decision and the board must prepare an accompanying report to that decision. The board’s report will include as appropriate the information set out in section 9(12) of the Bill, which the noise regulator would have also been required to include in its own report. This includes details of the measures to be imposed, reasons for its decision, what options were considered, a summary of the data examined and a non-technical summary. This is in line with the transparency requirements of EU Regulation No. 598/2014 and ensures interested parties are well informed as to the reasons for the board’s decision.
Where the board is considering measures that were not considered or consulted on by the noise regulator, it must firstly prepare a draft report to accompany a draft decision. The board must also prepare a final report detailing its final decision. Furthermore, specific reference is made the requirements of the board to publish its draft report or final report along with its decision and a notice detailing how a person may have access to them.
If I understand the amendment correctly, the board must carry out its own examination in respect of an appeal or submission made to it and may not rely on any of the preparatory work that has been conducted by the independent competent authority prior to that decision. Is this correct?
It is a separate independent assessment.
Therefore, it is a separate independent assessment.
Many of these amendments have come from the Minister, something to which we referred earlier. It is open to us to amend these on Report Stage.
Amendment agreed to.
I move amendment No. 61:
In page 16, to delete lines 27 to 29 and substitute the following:
“(b) Subsection (12) of section 9 shall, with all necessary modifications, apply to the Board and the decision it is minded to make under subsection (8)(a) as if any reference to the competent authority in such subsection (12) were a reference to the Board and as if any reference in such subsection (12) to the draft regulatory decision were a reference to the decision that the Board is minded to make under subsection (8)(a).”.
Amendment agreed to.
I move amendment No. 62:
In page 16, line 32, to delete “subsection (8)(b)” and substitute “subsection (8)(a)”.
Amendment agreed to.
I move amendment No. 63:
In page 16, to delete lines 36 and 37 and substitute the following:
“(II) having annexed to it the related report (subsection (5)(b)),”.
Amendment agreed to.
I move amendment No. 64:
In page 16, line 42, after “paragraph (c)(i)” to insert “and prepared the related report (subsection (5)(b))”.
Amendment agreed to.
I move amendment No. 65:
In page 16, after line 42, to insert the following:
“(II) stating particulars of how persons may view or otherwise have access to the draft decision and related report (subsection (5)(b)) (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the Board during office hours),”.
Amendment agreed to.
I move amendment No. 66:
In page 17, to delete lines 26 to 30 and substitute the following:
“(8) The Board shall, after having regard to all documents, submissions or observations (if any), and other information, given to it pursuant to a provision of this section—
(a) in compliance with subsection (4)(b) or (c), as appropriate, make a decision—
(i) confirming the relevant regulatory decision, or
(ii) revoking and replacing the relevant regulatory decision, and
(b) prepare a report in relation to the decision made under paragraph (a) which shall state the Board’s reasons for such decision and include therein—
(i) such of the matters referred to in paragraphs (a) to (j) of subsection (12) of section 9 as are appropriate (which inclusion may be achieved, at the Board’s discretion, by the adoption by it of any part of the report referred to in subsection (4)(d)(ii)), and
(ii) if subsection (5) applies, the related report (subsection (5)(b)) revised by the Board to take into account such documents, submissions or observations (if any), and such other information, and to take into account the decision made under paragraph (a).”.
Amendment agreed to.
I move amendment No. 67:
In page 17, to delete lines 31 to 41 and substitute the following:
“(9) The Board shall, as soon as is practicable after it makes a decision under subsection (8)(a)—
(a) publish the decision, which shall have the relevant report (subsection (8)(b)) annexed to it, on its website,
(b) on the same date as complying with paragraph (a) (or as soon as is practicable thereafter), publish a notice on its website and in a national newspaper stating—
(i) that the Board has made a decision under subsection (8)(a) on the appeal and prepared the related report (subsection (8)(b)),
(ii) particulars of how persons may view or otherwise have access to the decision and the relevant report (subsection (8)(b)) (which shall include being able to view the decision or report, or purchase a copy of the decision or report at a reasonable cost, at the offices of the Board during office hours), and”.
Amendment agreed to.
I move amendment No. 68:
In page 18, line 19, after “decision” where it firstly occurs to insert “, provided it publishes in writing the reasons for its failure,”.
I apologise, I am completely lost. We have been here too long and I am supposed to be in about ten other bloody places.
We are on section 10, amendment No. 68. If the Deputy wishes, we may adjourn and leave it until the next day, although it would be better if we could complete this section.
The amendment just requires that the reason for a decision be given in writing. I do not see anything wrong with that. It would be unusual circumstances where the board would not make the decision in the appropriate timeframe, and this amendment means that the board would be required to explain in writing why it had failed to meet its own guidelines on time. It would not stop them from doing so, it would simply mean that they would have to explain why they did not meet the timeframe.
Deputy Clare Daly has convinced me.
The Minister is accepting the amendment, then?
Fair play. I will not explain the next amendments either in that case.
Amendment agreed to.
I move amendment No. 69:
In page 18, to delete lines 23 to 25 and substitute “decision under subsection (8)(a) shall—”.
Amendment agreed to.
I move amendment No. 70:
In page 18, line 31, to delete “subsection (8)(b)” and substitute “subsection (8)(a)”.
Amendment agreed to.
I move amendment No 71:
In page 18, line 32, after “defer,” to insert “if immediate implementation is not possible and”.
Amendment, by leave, withdrawn.
I move amendment No. 72:
In page 18, line 36, to delete “section 25” and substitute “section 25(a)”.
Amendment agreed to.
I move amendment No. 73:
In page 18, to delete lines 37 to 39 and substitute “introduced by virtue of a decision under subsection (8)(a), take”.
Amendment agreed to.
I move amendment No. 74:
In page 19, line 10, after “defer,” to insert “if immediate implementation is not possible and”.
Amendment, by leave, withdrawn.
I move amendment No. 75:
In page 19, line 15, after “Minister” to insert “and the public”.
We are talking about regulations being decided and changed between two Ministers and this amendment just includes consultation with the public.
I will not accept the amendment. What we are doing here is simply allowing for the process under Regulation No. 598/2014 with current planning legislation and general established practice. We do not believe the amendment is necessary.
Amendment, by leave, withdrawn.
I move amendment No. 76:
In page 19, line 24, to delete "subsection (8)" and substitute "subsection (8)(a)".
Amendment agreed to.
I move amendment No. 77:
In page 19, between lines 33 and 34, to insert the following:
“ "related report (subsection (5)(b))" means the report (if any) prepared by the Board pursuant to subsection (5)(b);
"related report (subsection (8)(b)" means the report prepared by the Board pursuant to subsection (8)(b);".
Amendment agreed to.
I move amendment No. 78:
In page 19, lines 38 and 39, to delete all words from and including “section 9(15)(a);” in line 38 down to and including line 39 and substitute “section 9(15)(a).”.
Amendment agreed to.
I move amendment No. 79:
In page 20, to delete lines 1 to 3.
Amendment agreed to.
Section 10, as amended, agreed to.
This is an appropriate time to finish.
Can I make a suggestion? The bulk of the remaining amendments with the exception of one or two that are materially different have already been discussed in previous groups. If the Minister and the members were willing, could we proceed further?
The room is booked for 2.30 p.m. I already asked about that.
There is another committee room free.
Chairman, I am perfectly willing to continue.
We will go into private session so the clerk can respond. He cannot respond in public under the process.
Progress reported; Committee to sit again.
The select committee went into private session at 2.27 p.m. and adjourned at 2.31 p.m. sine die.
