Dáil Éireann díospóireacht -
Wednesday, 28 Feb 1990

Vol. 396 No. 4

Private Members' Business. - Local Government (Water Pollution) (Amendment) Bill, 1989 [Seanad]: Committee Stage (Resumed).

Debate resumed on amendment No. 6:

In page 3, to delete lines 37 and 38 and in page 4, lines 1 to 25 and substitute the following:

"(b) the deletion of subsections (5) and (6), and the substitution of the following:

‘(5) The Minister may, after consultation with any other Minister who, having regard to his functions, he considers ought to be consulted, by regulations make exemptions from subsection (1), and attach conditions to and restrict such exemptions.

(6) Where it is proposed to make regulations under subsection (5), a draft of each such regulation shall be laid before each House of the Oireachtas, and the regulations shall not be made until a motion approving of the draft has been passed by each such House.'.".

—(Deputy Gilmore.)

Mr. Gilmore

Amendment No. 6 relates to section 3, which in turn relates to section 3 (5) and (6) of the 1977 Act. Subsections (5) and (6) of the 1977 Act exempt a list of works and a list of public bodies whose works in or near rivers or near waters of one kind or another are exempted from the provision that a person shall not cause or permit any polluting matter to enter waters. I do not see the necessity for exempting all these different bodies.

I mentioned earlier the exemption under the Foreshore Act, 1933, and some of the exemptions under the Harbours Act, 1946. The latter Act exempted the depositing of dredged material from the sea and the depositing of earth, ash or stones. It also exempted harbour works which would contain provision for the opening of sewers, drains or pipes. All these activities are exempted under the 1977 Act. A number of other Acts are relevant, including the Electricity (Supply) (Amendment) Act, 1955, the Liffey Reservoir Act, 1936, the Electricity (Supply) (Amendment) Act, 1945 and the Turf Development Act, 1946. The 1949 Local Authorities (Works) Act would exempt the ESB, Bord na Móna and local authorities in that if they or any of their contractors were carrying out works they would not have to comply with the provisions of the Fisheries Acts.

As a general principle we should not have these kinds of exemptions. We know that State organisations, local authorities or their contractors are very often offenders in regard to water pollution. There is no good reason they should not come under the general provisions of the water pollution legislation, where they would be prohibited from causing or permitting polluting matter to enter water and presumably they would also be covered by the "good defence" clause about which we talked earlier.

The amendment I am proposing would seek to delete from the 1977 Act those exemptions and replace them by a provision where if the Minister felt there was a necessity for an exemption he could bring regulations before the House to provide for that exemption. The 1949 Local Authorities (Works) Act deals with the kind of public works that would relate to storm damage, flooding or whatever. It was felt that for those reasons it would be necessary to exempt certain types of public works. It is desirable that this should be provided for by way of regulations which would be brought before the House and would set out the conditions under which such works would be carried out.

None of the Acts which exempt public bodies from the provisions of the 1977 Water Pollution Act protects against water pollution. The Acts are expressed in very wide terms. In the case of the Foreshore Act there is reference to any type of infill. They are wide open to abuse. For these reasons we should delete the exemptions and make an alternative provision whereby any type of exempted works or classes of works would be dealt with by way of regulations which would be brought before the House.

Miss Harney

This amendment, if passed by the House, would lead to a number of undesirable consequences. First, it would render all licensed trade effluents subject to prosecution under section 3, thus removing any incentive for industry to comply with the licensing provisions of the Act. Secondly, it would extend the ambit of the Act to waters outside the functional area of local authorities and to discharges which are already adequately catered for by the various Acts referred to in section 3. I believe that the approach adopted in the amendment is incorrect in that it would take the axe to exemptions that have not given rise to problems generally and indeed are necessary for the orderly operation of an effective regime of water pollution control. At the same time it would give the Minister the opportunity to introduce an unlimited number of exemptions without these having to undergo the full legislative process. In my view there is no scope for providing further exemptions to section 3. Indeed the present exemptions should be kept under constant review and it is for this reason that the Bill empowers the Minister to remove those exemptions which are abused or found to be unnecessary. For instance, the Minister will now be able to remove the exemption conferred on Bord an Móna turf developments by section 27 of the Turf Development Act, 1946 should he conclude that such developments are the cause of widespread pollution.

Some of the exemptions have given cause for concern. I do not dispute what Deputy Gilmore has said. It will be necessary to use the provisions of this Bill to limit certain exemptions. I hope that can be done. All exemptions should be reviewed in the light of this legislation and unless they are absolutely necessary they should not stay. That is why the power is being given. It is not necessary to give the Minister any additional functions in relation to exemptions generally. To give a power of unlimited exemption seems to contradict what Deputy Gilmore set out to do initially. It would also make it impossible to have certain trade effluents which are subject to very strict licences provided for. That would have major implications for industry throughout the country. While I would not disagree totally with many of the points raised by Deputy Gilmore, the most effective way to deal with this is by way of the new provisions in the Bill which will allow the Minister to make regulations.

An Leas-Cheann Comhairle

Is Deputy Gilmore anxious to continue debating his amendment?

Mr. Gilmore

I am not sure that "debating" is the appropriate word. The Minister sees some merit in what I am attempting to do. It certainly is not my intention to open up the possibility of even further exemptions than are already included in the 1977 Act. The purpose of the amendment was to eliminate exemptions or certainly to restrict them. It is a question of how one looks at it. The Minister talks about the need to review some of the exemptions in the 1977 Act. If that is the case we should face up to it now. Leaving it to be done by way of regulations is not necessarily the best way. If we feel that section 27 of the Turf Development Act should be deleted from the list of exemptions or that the Harbours Act, 1946 in relation to the foreshore should be deleted, that should be done in the context of this Bill. It is not my intention to press this amendment to a vote. Instead of leaving it to be done by way of regulations, however, I would ask the Minister to consider having a look at the list of exemption on Report Stage and perhaps deleting those which can now be deleted which would at least reduce the problem to be dealt with by way of regulations.

An Leas-Cheann Comhairle

I did not seek to inhibit the Deputy's contribution but I thought I detected from him that he was not going to press the amendment. I should have asked the Deputy that, perhaps.

Mr. Gilmore

You should always wait to hear what I have to say.

Miss Harney

I would like to be helpful but I do no know if it would be practical or feasible to review the extent of all these exemptions between now and Report Stage which I hope will be soon. I share many concerns of the Deputy but such a review of all exemptions could not be done in a short time. I am prepared to look at the Deputy's suggestion. We can restrict the exemptions but I do not know if we could totally de-exempt all the bodies we might like to bring under the provisions of this legislation. Turf development, for example, may be its nature necessitate certain matters getting into water courses and I do not know whether one can have turf development without that. I do not know enough about it to be able to comment now, but I will undertake to come back on Report Stage with whatever I can or at some further stage. However, giving the Minister power to make regulations would have given sufficient time after the passing of this Bill to review these exemptions and to have discussions with relevant Departments and Ministers in reviewing operations that have in the past necessitated these exemptions, to see if they are unnecessary or desirable from the environment point of view.

Amendment, by leave, withdrawn.

Section 3, as amended, agreed to.

NEW SECTION

Mr. Garland

I move amendment No. 7.

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

"4—Subsection (3) of section 4 of the Principal Act is hereby amended by the substitution for paragraph (b) of the following paragraph:

‘(b) In considering whether or not to grant a licence under this section and in considering the terms of any such licence a local authority shall have regard to the objectives contained in any relevant plan under section 15. It shall also base its assimilative capacity estimates on a seven day sustained low flow criterion.'.".

There is a very significant omission in the 1977 Act which is not being addressed in this Bill and that is the question of the criteria used in measuring pollution in rivers. It is not just a matter of the licence that should be taken into account. The terms of such licences are of vital importance. The fact is that the only or certainly the best criteria for establishing water quality is the seven day sustained low flow criteria. This means one has to take a river at its lowest possible level for seven days and measure it on that basis because, obviously, if one measures the level when it is at medium or high flow the element of dilution will be very substantial. We all know that frequently rivers are running low, especially in summer as they did last summer. This is a very significant omission in this Bill. It is essential that we protect the quality of our water because it is a very precious resource for ourselves and our tourists. I would be interested to hear what the Minister has to say and whether she can reassure me on this point.

Miss Harney

The amendment also seeks to impose an absolute obligation on local authorities to set licence conditions based on the receiving water's assimilative capacity as determined on a seven day sustained low flow.

Such an obligation would interfere with the basic powers extended under the 1977 Act to local authorities to determine the conditions attached to discharge licences. These decisions should be based on all circumstances relevant to the particular licence application and the conditions imposed should seek to safeguard water quality and the legitimate uses of the waters concerned. Should any party consider that the conditions are inadequate they may appeal them to An Bord Pleanála.

The adoption of the uniform approach put forward in this amendment would be most inappropriate where particularly dangerous substances are contained in an effluent discharge. Licence conditions in such situations should seek to reduce and, as far as possible, eliminate such substances from the effluent — the concept of tackling pollution at source — rather than limit discharges based on the assimilative capacity approach. The latter would provide a much poorer level of environmental protection. There would also be situations in which the seven day low flow criteria would not apply, as where discharges are made to estuaries or to the sea.

I do not believe that the issue which the Deputy seeks to address is amenable to a legislative solution involving a rigid, uniform approach. Local authorities must continue to be allowed to determine licence conditions taking account of all circumstances relevant to the particular licence application. I cannot accept the amendment.

The environmental protection agency will be given responsibility for setting standards for the issue of water licences, waste permits and air pollution licences. I share the Deputy's concern — I know what he is trying to get at — but this is not the best way to do it as it may best be catered for in the context of those standards set by the proposed agency.

Mr. Garland

I totally agree with the Minister when she said that we should be trying to eliminate the causes of these discharges and perhaps I should have stressed that in my short contribution. Nevertheless, sometimes there are illegal discharges or those which cannot be reduced beyond a certain minimum. I am disappointed with the Minister's response. I agree that estuarial waters are a different matter but, in so far as discharges are made into rivers above the waterline, one has to take into consideration the effects at the lowest possible water levels. I ask the Minister to reconsider this matter on Report Stage.

Miss Harney

That is already done by local authorities, they are required to take the particular circumstances into account. However, to make it a rigid requirement for every single licence that you have to take the assimilative water capacity over seven consecutive days would be unnecessary. It is not required in all circumstances and would not be desirable. The Deputy is seeking to ensure that particular circumstances are taken on board. I share his concern in that regard but it would be more appropriate for the new environmental agency in setting standards to deal with this matter rather than making it a very rigid and inflexible rule if it was written into the Bill.

Amendment, by leave, withdrawn.

Mr. O'Shea

I move amendment No. 8:

In page 4, line 31, to delete "may" and substitute "shall".

This is an amendment to section 6 of the Principal Act which makes regulations for the purposes of section 4 of the Principal Act which deals with licences for the discharge of trade or sewage effluent into water and section 8 which deals with appeals against these licences.

Section 8 will be amended later on but the reason we feel that the word "shall" should be substituted for "may" is that if "may" is left there it is part of the legislation. Some Ministers may be a lot more concerned about environmental issues than others; our concern is that regulations will be made in terms of licences for discharge of trade and sewage effluent into water and that regulations will be made in terms of the appeals against these licences from people who have been granted them. I should like to hear the Minister's response.

Miss Harney

I consider it more appropriate that section 4 of the Bill should seek to provide general enabling powers in relation to regulations on the payment of fees for licence applications and appeals rather than imposing rigid obligations on the matters to be addressed by such regulations.

The charging of fees for services are now a normal feature of the provision of public services. The provision in the Bill is intended to allow local authorities to offset some of their costs in processing licence applications by charging fees determined and prescribed by me. Substantial costs may be incurred by local authorities in processing such applications, depending on the nature of the effluent discharged and the complexity of the production processes involved.

The provision regarding payment of fees for appeals to An Bord Pleanála will similarly help to offset substantial costs. A fee of up to £36 is payable for appeals at present under the Local Government (Water Pollution Fees) Regulations, 1985. I assure Deputies that it is my intention to bring forward regulations at an early date on the payment of fees to local authorities in respect of licence applications made under section 4 of the 1977 Water Pollution Act.

I remain satisfied that it is better to retain the word "may" and, in view of what I said, perhaps Deputies will reconsider their position. There are circumstances where it might not be desirable to charge a fee, for example, if a hospital, medical institute or voluntary body are concerned. It is undesirable to put the element of compulsion in all cases and perhaps if the Deputy reflects on that he might agree with me. It certainly is the intention of the Government — and it has been the situation for quite some time now — that in the issue of licences fees are payable. They can be quite substantial and they are also payable in relation to appeals. Indeed, those fees have been the subject of a lot of controversy and disquiet by Deputies, among others, but, because of the huge cost involved, it is necessary to charge a fee, even for a third party appeal by a member of the public. I ask Deputies to leave the flexibility in the legislation, to leave the word "may" which is more flexible than the word "shall" so that we can take account of particular circumstances such as I outlined.

Mr. Shatter

I take the view that generally, in principle, if somebody applies for a licence under this legislation they should foot the expense incurred by the local authority to process the application as well as the expense incurred by An Bord Pleanála.

The Minister's reason for not accepting the amendment does not stand up. The particular subsection provides that regulations under this section may make provision for the payment to a local authority of a fee of such amount as may be specified in respect of an application to it. It says that you can provide for the payment of fees of different amounts in respect of different classes of applications. I do not imagine that a school would be looking for a licence under the water pollution legislation but it could apply in the case of a medical establishment. Different fees can apply in different circumstances and that would deal adequately with the Minister's objections. "May" is an empowering provision and "shall" ensures that it would happen. In this context it would make a lot of sense to ensure that there were different types of licences. I cannot see why the Minister will not accept the amendment although I do not want to unduly delay the House in relation to it. Perhaps she will consider looking at this again on Report Stage.

Mr. Gilmore

I am surprised that the Minister has taken a negative position in regard to this amendment. It seems that the Department of the Environment are considerably behind in making regulations which they are enabled to do under various legislation. I would be concerned that if under this legislation the Department of the Environment are not required to make the regulations they may well be pushed to the bottom of the pile. The Minister advanced an argument for not including a provision in the Bill that regulations could be made about hospitals. There is a provision in the Bill for a waiver, a remission or a refund of fees in certain circumstances and that would cover that problem.

I am not entirely happy about the payment of fees to An Bord Pleanála in respect of appeals. I agree with the principle that the licence applicant should pay a fee to the local authority and that if he wishes to appeal that licence decision to An Bord Pleanála it is also correct that he should pay a fee. However, I am concerned about the case of a third party, a member of the public, a residents association or an environmental group who are anxious about conditions attaching to a licence and are anxious to appeal that to An Bord Pleanála. I am concerned that they will be hit with a fee. As the Minister has stated there has been some controversy about the Minister's decision to increase the level of fees which apply in the case of planning applications and appeals to An Bord Pleanála. I suggest to the Minister that she should have another look at that matter.

I do not think members of the public should be discouraged from making an appeal to An Bord Pleanála by the size of the fee involved. In the planning area we are talking about a fee of £56. If we discourage appeals we are defeating one of the purposes of the legislation which is to give the public greater access to and involvement in protection from pollution. Will the Minister clarify if it is intended that the fees she has referred to will be paid by the public? If that is the case will the Minister consider having a second thought about it?

Miss Harney

I should like to tell Deputy Shatter that I will have another look at the provision between now and Report Stage and I may be able to cover the points made with the use of the word "shall". On the payment of fees, nobody likes to say that a member of the public with a legitimate appeal or who wants to obain information should have to pay. However, substantial costs are involved in processing applications for licence fees, planning applications and so on. Some element of the cost involved — it is only a tiny portion — should be recouped. The fee has been introduced to recoup some of the cost involved and to try to avoid unnecessary appeals or appeals that are lodged for the sake of making an appeal. The fee of £36 may be a lot of money for some groups but, generally, it is not. In my view an organisation or a member of the public would be more serious about an appeal if they had to make a small payment than they would if there was no payment involved. The fee has been introduced to avoid frivolous appeals as much as anything else. In the main we want to help to defray some of the cost involved. In principle I would like to be able to say that legitimate appeals should be free and that in other cases people should have to make a contribution to the costs involved. However, I do not think it would be possible to cater for the two cases.

The water licence fees have not increased but the planning appeal fees have. I cannot give an undertaking to Deputy Gilmore on the point he made about fees or the level they will be set at. They certainly will be retained but I cannot say at what level. I give an undertaking to consider between now and Report Stage the use of the word "shall" as opposed to the word "may". However, the use of that word may still allow the exclusions I mentioned and I am concerned about that. If that is the case I will have no great objection to making the change suggested.

Mr. Garland

There may be a way out of this dilemma which the Minister should consider between now and Report Stage. We are dealing with two entirely different matters in this section. One concerns a licence fee payable by an industry or a person requiring a licence while the other relates to an appeal fee to An Bord Pleanála. I would be very unhappy to leave the section unamended. Will the Minister consider using the word "will" in subsection (a) which deals with a licence and the word "may" in the section dealing with An Bord Pleanála? However, the issue is not as simple as that because there are two types of appeal to An Bord Pleanála, the appeal from the industry or user who, generally, can well afford to pay a fee, and the appeal from members of the general public many of whom cannot afford to pay a fee. The Minister suggested that a nominal amount should be paid in order to discourage frivolous appeals. I agree that we should discourage frivolous appeals but a fee of £36 is quite substantial. A fee of £5 or £10 would be sufficient to discourage totally frivolous appeals. Alternatively, the Minister should consider the concept of refunding fees where An Bord Pleanála are satisfied that the complaint, even if it is overruled by the board, was a serious one and merited consideration. In such cases a refund in full should be made. Will the Minister consider those suggestions between now and Report Stage?

Miss Harney

I do not think it is desirable that we should get involved in an argument about the level of fees when we are framing legislation because we cannot include monetary sums in the Bill. I do not think Members would consider that desirable. If the Deputy accepts that we should try to discourage frivolous appeals then there is a need to have a fee. The correct way to deal with fees is through the regulations. I am being reasonable in what I am doing about Deputy's amendment which is to consider substituting "shall" for "may". The wider issue of whether fees should be paid by certain groups and the level of those fees, is not a matter for discussion on the amendment.

Amendment, by leave, withdrawn.

Section 4 and 5 agreed to.

SECTION 6.

Mr. Garland

I move amendment No. 9:

In page 7, subsection (1), line 29, after "direction." to insert "An Bord Pleanála inspectors' reports in water pollution appeals shall be made public, and the reasons for An Bord Pleanála's decisions be publicly stated. A decision by An Bord Pleanála to deny an oral hearing on a water pollution licence appeal, may be further appealed to the Minister.".

There is a very important principle involved in this, freedom of information. It is essential that An Bord Pleanála inspectors' reports are made public and that the reasons for their decisions are publicly stated. We have found in the past that An Bord Pleanála commission an inspector's report on an issue which is the subject of an appeal, whether it is in regard to a water pollution licence or a planning permission. The inspector's report remains secret and An Bord Pleanála can overturn it, as we found in the Radio Tara mast case, without any reason or even public knowledge. The position is very unsatisfactory.

An Bord Pleanála send skilled and experienced inspectors to look at an issue and they may sit for many days at an oral hearing before reporting. In due course An Bord Pleanála publish their report. The gullible, innocent general public read An Bord Pleanála's decision and remark, "the inspector spent many days there, listened to a lot of evidence and he has either accepted or rejected the appeal". It does not occur to the normal person that An Bord Pleanála can, and frequently do, overturn their inspector's report and not only that but the public never know about it; furthermore, the public are never given reasons. These things are most unsatisfactory. There have been many strange decisions made by An Bord Pleanála, especially since 1987. I will leave it to your imagination and your memories to see what happened in 1987. There have been some very unsatisfactory goings on.

Finally the question of whether an oral hearing takes place is at the discretion of An Bord Pleanála. Frequently they decide against having an oral hearing. There is no appeal at present against this. I think there must be some appeals procedure, perhaps to the Minister, because in virtually all cases an oral hearing, if only for the sake of showing the public that justice is being done, should be very much the rule rather than the exception. Denying people their right to an oral hearing is a very serious matter. I would like to hear the Minister's response to that also.

Miss Harney

Section 23 of the Local Government (Planning and Development) Act 1976 provides that where an inspection is carried out or an oral hearing is conducted on behalf of An Bord Pleanála or by a person appointed by the board, that person must submit a written report on the inspection or hearing to the board. The board are required to consider the report before determining the matter in question. This provision equally applies to appeals under both the Water Pollution Act and the planning Acts. The board are not obliged, however, to accept the recommendations in the inspector's report. Appeals fall to be determined by the board and the inspector's report may be viewed as an input or one part of the decision making process. For this reason it has not been the practice to make inspector's reports public either in relation to water pollution licences or in relation to planning applications. I agree totally with the Deputy that there is a need for greater access to information in this area. Provision in that regard will be made in the proposed Environmental Protection Bill. There is also a directive, as the Deputy is aware, before the Council of Ministers in relation to access to information. These matters might be more wisely discussed in that context.

I cannot agree with the suggestion that there should be an appeal to the Minister against a refusal by the board to hold an oral hearing. Bord Pleanála are an independent board and should be as independent as possible in the exercise of their duties and in the carrying out of their operations. Appealing a decision of the board on whether to have an oral hearing would run contrary to the independence of the board and would not be desirable. For that reason I cannot accept the Deputy's amendment. I would also add that the Deputy does not seek to make any reports of the local authority available to the public. In his amendment it appears to be only the activities of An Bord Pleanála with which he is preoccupied. It is inconsistent to make it compulsory for An Bord Pleanála to publish a particular report and not to do so in the case of the local authority concerned. I cannot, therefore, accept the amendment.

Mr. Gilmore

I agree broadly with Deputy Garland's amendment particularly as it relates to the publication of An Bord Pleanála's inspectors' reports. The Minister is correct in drawing attention to the fact that the amendment does not include local authority reports either. Reports of this kind should be available to the public, at least for inspection. If they were available, not only in the area of water pollution but in the general area of planning many of the difficulties and much of the controversy about planning decisions which have been the subject of public comment recently might have been obviated. The public have a right to know what the professional opinion is on matters of this kind. It may well be that, having regard to all the circumstances, the board have the right not to accept the report they get from the inspector but the principle of the inspector's report being made available should be defended.

I do not understand the Minister's explanation that this can be dealt with in the context of the environment protection agency. This is the second time in the course of this debate that the Minister has offered the agency as the panacea. She did so earlier when we were talking about the Water Pollution Advisory Council and their abolition under this Bill. What exactly will the environment protection agency deal with here; the inspector's reports of An Bord Pleanála will either be available to the public or not so available. The establishment of an environment protection agency and the freedom of information directive is neither here not there so far as this issue is concerned unless the reports are to be made public. Surely it is as easy to provide for that in this legislation as it is in the context of the environment protection agency legislation.

I am inclined to agree with the Minister in relation to the question of appealing to the Minister in respect of a refusal of an oral hearing. The experience, particularly in the environment area, where matters are appealed to the Minister, has not been encouraging. I agree that it would take from the independence of An Bord Pleanála if such appeals were allowable. The main thrust of the amendment is about making information available to the public and that should be taken account of.

Mr. Shatter

I, too, take the view that in the general planning area as well as in this area the inspector's report should be public information. Presumably the planning situation and the inspector's report after an oral hearing, set out the submissions made at the hearing as well as a recommendation to the board. An Bord Pleanála, where they receive an inspector's report, should normally publish it and not make a decision on foot of that report until at least two weeks after publication so that if there is anything in the report to which people want to make a written response they have the opportunity to do so. I am not talking of reopening an entire oral hearing but if there is a belief that something has been misunderstood by an inspector or that there is a misconception of a particular planning application, or an application under this Act, that the board will have a response before them in writing before making their final determination. Like Deputy Gilmore I do not understand why the Minister mentioned the environment protection agency. It was my understanding from what was said about the Fine Gael Bill that the Government were not enthusiastic about an agency that would have general freedom of access to information held by Government Departments, An Bord Pleanála etc. Even if they do have that access, they may do so in the context of reporting on the performance of the different bodies concerned and would not be involved in determining the individual planning application or the application of the water pollution legislation.

I hope that in the context of planning legislation we will see the planning Acts being changed and that it will be a matter of practice that these reports are made public information. I do not see how we can have the Minister for the Environment in his super Green Euro role, apparently trying to sell a directive on freedom of information to the other member states of the EC while we deny freedom of access to basic information within our own jurisdiction. I would share the Minister's view and that of Deputy Gilmore about the idea of an appeal from An Bord Pleanála to the Minister where there is a refusal such as that suggested by Deputy Garland. That could politicise a process which should be kept out of the political arena. I would have reservations about that.

There is also need for uniformity. I am not sure if we can make provision for reports in the context of the water pollution Acts as in other circumstances reports are not made available to the public. Perhaps this has to be done under the planning Acts but I would like the Minister of State to clarify her approach to this matter. Is she disposed to the idea that all such reports should be published? Can she tell us if the Government intend bringing forward specific legislation to amend the planning Acts, including the water pollution and air pollution legislation, to ensure that such reports are made public? When are we likely to see such legislation? They are the relevant questions on this matter.

Miss Harney

I agree with the Deputies who argue that planning inspectors' reports in relation to planning applications should be made public. While I do not have any function in relation to planning matters within the Department of the Environment, I understand the Minister is reviewing the planning Acts.

In relation to water licences, the Deputies may feel that I am using the Environmental Protection Agency as the panacea for all our toubles, but I do not want to give that impression — it would not be fair to do so — as it will not be. It may be that, following the passage of the legislation, appeals may only be made to this agency so far as water and air licences are concerned. That is why it may be more appropriate to streamline the requirements in relation to access to information in that context.

While I do not claim to be an expert in this area, I understand that it is not common to have an inspector's report in relation to a water licence. When an appeal goes before the board it is not always the case that there is an inspector's report. Maybe what Deputies want is the technical report on which the decision is made. As I said it is not always the case that an inspection takes place as would happen, for example in a planning application. However, I do not want to use that as an excuse. As I said, I cannot accept the Deputy's amendment for a number of reasons. First, it would place the onus on An Bord Pleanála, second we intend to review this procedure in the context of the Environmental Protection Agency legislation which will have a role to play in relation to water and air pollution licences and waste permits; and, third, I cannot agree that a refusal to grant an appeal by an Bord Pleanála should go to the Minister. That would lead to an erosion of the independence of the board and would, as Deputy Shatter said, be politicising the process to some extent. We want to avoid this as it would be undesirable to do so. The reason we have an independent board is to avoid matters of that kind.

An Leas-Cheann Comhairle

Is Deputy Garland happy that this amendment has received a sufficient airing?

Mr. Garland

I agree with what the Minister of State has said on the desirability of having local authority reports made public. From my reading of the Bill this may not be appropriate in the context of this legislation but I would like to see this covered. The Minister of State referred to an EC Directive on this matter. However, we should be able to legislate for matters of this kind in the House without having to await an EC Directive. I see I have no support in the House for the final part of my amendment which deals with oral hearings and if it is possible to withdraw that part of the amendment I will do so. Otherwise I regret that I have to press my amendment.

An Leas-Cheann Comhairle

Does the Deputy wish me to put the question on the amendment?

Mr. Garland

Yes.

An Ceann Comhairle

I am putting the question: "That the amendment be made." I think the question is lost.

Mr. Garland

Vótáil.

An Ceann Comhairle

The question is: "That the amendment be made." On that question a division has been challenged. Will the Members who claim a division please rise in their places?

Deputy Garland rose.

An Ceann Comhairle

As fewer than ten Members have risen in their places I declare the question negatived. In accordance with Standing Order No. 59 the name of the Deputy dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Amendment declared lost.

Section 6 agreed to.

SECTION 7.

An Ceann Comhairle

Here we have amendment No. 10 in the names of Deputies Quinn and O'Shea. Amendments Nos. 20, 24, 26, 33, 34, 46, 47, 48 and 49 and 50 are cognate. I suggest that we discuss them together. Is that agreed? Agreed.

Mr. O'Shea

I move amendment No. 10:

In page 9, line 8, after "fine" to insert "exceeding £250 but".

The reason this series of amendments is down is that we believe the environmental officers of local authorities should have the support demonstrably, not alone of both Houses of the Oireachtas, but of the courts as well. There were a couple of incidents in my own area that concerned me greatly. The first was several years ago where several thousand gallons of animal blood were discharged into the east Waterford water scheme. Due to the vigilance of local authority staff this was discovered before the water had actually gone through the treatment plant. The type of treatment that is available in a water treatment plant would not have dealt with the viral type of infection that was in the animal blood.

When this case was brought to court and there was a successful prosecution a fine of £100 was imposed on conviction which, in my view, was derisory and would make people like the environmental officers of the county council, who had gone to great trouble to prepare the case and whose vigilance prevented what could have been a major disaster in terms of the water supply to Waterford City, Tramore and Dunmore East, feel that they had not got the support of the courts. Again in Dungarvan on two separate occasions an industrial concern was prosecuted. Paltry fines of £50 and £10 were imposed after successful conviction. In one case the parameters were exceeded 1,000 times in terms of the effluent which was being discharged into Dungarvan Bay and, indeed, the South Eastern Health Board advised people not to consume shellfish from that particular harbour.

The fact that one does not always have consistency between district justices in these matters is the major matter for concern here. When local authorities bring people to court and successfully prosecute such breaches of the Act as we are discussing here tonight, the type of fine brought in should reflect the seriousness with which the court views the matter. I would be interested in the Minister's response to this.

Miss Harney

These amendments provide that a person shall be liable on summary conviction of offences referred to in the section to a fine of not less than £250 and where convicted on indictment to a fine of not less than £2,500. These amendments would, in my view, constitute an unwarranted interference with the discretion of the Judiciary to deal with each case on its merits. I believe the Judiciary will apply a sensible sentencing policy when dealing with water pollution offences and I believe that there is already a trend emerging of the courts taking a more serious view of such offences and imposing higher penalties as a consequence. A requirement to impose a mandatory minimum fine in the case of such offences would lead to unnecessary rigidity in the law. There will always be exceptional cases where particular mitigating circumstances exist which would justify the imposition of a small or even a nominal fine. For instance, if a person is convicted of non-compliance with a notice under section 12 of the Principal Act the fact that the person may be able to provide evidence that he has complied substantially with the terms of the notice and has arrangements in place to ensure early completion of the remaining measures to prevent pollution might be such a mitigating factor.

Apart from the specific monetary penalties contained in the Bill it should also be remembered that there is a number of other provisions which should result in offenders having to pay out significant amounts. These include recoupment of local authority or fishery board expenses in taking the prosecution, including the salaries of officials involved, the cost of investigating the accident as provided for under section 28 and possibly costs involved in complying with an order to mitigate or remedy the effects of the pollution. Offenders may, in addition, be held civilly liable under section 20 for damages, losses or injuries sustained on account of the pollution. These provisions are useful weapons in the fight to make the polluter pay and they should also be effective in providing a real deterrent against polluters.

For these reasons I consider it would be wrong to provide for a minimum fine. Judges should continue to be in a position to assess all the relevant facts in each case to determine the appropriate penalty. I might add in response to the case Deputy O'Shea mentioned that there was a case recently of a first offence where somebody was given 18 months for dumping blood in water. On appeal that was changed but the person went to jail and served part of the sentence. To take one case and use that as a reason to justify a minimum sentence would be wrong. If there is a minimum fine I believe there is a tendency in the courts to apply the minimum because it will more or less guide the Judiciary in the direction of the minimum. Leaving it to their discretion to go as high as £1,000 will make it more likely that in many cases they will go way above the £250 threshold. Simply to require them to do it in all cases might mean we will get the minimum, and maybe no more than the minimum for all first offences. That would not be desirable or fair.

The general view is that unless it is absolutely vital in legislation, to interfere with the independence of the Judiciary and compel them to look at each case in the light of the facts and circumstances, is undesirable in law. I know Deputies will remind us of drunk driving offences and what we have been asking for in relation to rape, but in relation to the imposition of fines in this legislation I do not believe it would be desirable and I am not certain it would have the desired effect. While we would always have to get the minimum £250 we might never get much more than that even where a fine of £800, £900 or £1,000 would be more relevant.

Mr. Shatter

I always have some reluctance to constrain the Judiciary totally for the reasons Minister of State gave, but I am also concerned and anxious to ensure that where prosecutions take place and someone is properly convicted the District Court imposes a proper fine or sentence where appropriate. It occurs to me that this problem could be approached from a different viewpoint. Deputy Harney is right when she says that where you provide a minimum, there is always a danger that it is that minimum the Judiciary will order, and where a fine is appropriate it is often gauged not just by whether there is a minimum fine but what the maximum is as well. The usual reason for providing for a low level of fines in the District Court is that that is a court of limited jurisdiction.

I want to raise something with the Minister which she may be willing to consider on Report Stage and I want to put it on the record of this House that I have raised it on Committee Stage and am in a position to move it on Report Stage. Having considered Deputy O'Shea's and Deputy Quinn's amendment and had another look at the section, I suggest that the maximum fine of £1,000 which the District Court can impose is insufficient. If you take the comparison of a fine of £1,000 and/or six months' imprisonment — bearing in mind that we probably will not be dealing with this legislation again for some years — it would seem that the maximum District Court fine could be constitutionally quite properly increased to £2,500. In the context of the District Court imposing penalties that would give a wider degree of discretion to a district justice and would render it more likely as you go through the different levels of seriousness of cases that appropriate fines would be imposed.

In regard to the cost, the District Court is allowed to provide for the meeting the costs of works up to £2,500 but the fine is limited to £1,000. The Minister can correct me if I am wrong in my reading of the legislation. It would seem appropriate to amend the District Court minimum fine from £1,000 to £2,500. That should guarantee that district justices would impose proper fines. It would give them greater leeway in exercising discretion in the context of different levels of seriousness of offences that might come before them. I would like the Minister to consider that, and I would like Deputy O'Shea to consider that as an approach that might deal with the type of problem he is concerned about. I think the £1,000 fine is too low in the context of the Bill.

Mr. Gilmore

The problem here is that the experience of the 1977 Act was that the Judiciary, with all due respect to them, did not appear to take the problem of water pollution very seriously when cases were brought before them, and the experience of local authorities and fishery boards has been that judges tend in a first offence to put back the case to allow the offending party an opportunity to put his affairs in order and to get himself back on side. Even then where a prosecution is proceeded with, the tendency is that the level of fines is very low. Therefore, it is important that the Legislature send a very clear message to the Judiciary that, while they have discretion to judge each case on its merits, the view from ths House is that the penalties should be considerably increased.

I am inclined to go along with the view expressed by Deputy Shatter, that the maximum fine should be increased. I am not entirely convinced by the Minister's argument that if you provide for a minimum the Judiciary will necessarily always go for that. It may well have the effect of signalling to them that there is a great deal of concern about this and that the Legislature would wish to see the Judiciary taking a much firmer stand with polluters than has been the case up to now.

Mr. Shatter

Deputy O'Shea referred to a serious case where the fine was only £100, and that is one reason we are amending this section. As I understand it, for a prosecution under section 10 the maximum fine that can currently be imposed is £250. That is the problem. I am not familiar with the case in Deputy O'Shea's constituency, but the problem here is that the level of penalty is so low that in the context of a maximum fine of £250 the district justice might have thought £100 was a reasonable fine. That is why it is important to increase the maximum fine as opposed to providing a minimum fine.

Mr. O'Shea

Having listened to the three contributions from the Minister and the spokespersons, I have no hang-up as to how we achieve the desired effect. It is my concern that local authority environmental control officers can feel badly let down when certain types of fines are imposed by the court upon conviction. I ask the Minister to respond to Deputy Shatter's suggestion regarding increasing the level of fine. I have a totally open mind on this, but I am seeking to ensure that the people in the field who are implementing this legislation on behalf of the community should feel they have the backing of the Judiciary.

Miss Harney

I agree with Deputy Shatter on the point he made. On looking at the Bill since I went to the Department I made that point that I thought £1,000 was quite low, but the advice we have from the Attorney General — the Deputy knows we are obliged to take the Attorney General's advice — is that we cannot go higher than £1,000 in the District Court. I know that advice is disputed by people outside the Attorney General's Office but that is the advice we have. I take Deputy Shatter's point that the District Court under section 7 is allowed to make an order on costs up to £2,500. I know it seems inconsistent but very often the law is inconsistent in this respect and the advice offered is too. I will certainly have a look at this again and seek the advice of the Attorney General.

However, it is important to remember that the fine is only one small part of the penalty that is going to be imposed. If somebody is convicted of a pollution offence in addition to being required to make good the damage, he will have to pay the full cost of taking the prosecution, which will be substantial, even at the District Court level. This will add enormously to the financial penalty that will be imposed on those convicted of pollution offences. I share the Deputy's concern and I see the reasoning behind putting forward an amendment of this kind.

With the general awareness of the environment, the Judiciary cannot but be aware of it and I am optimistic that they will impose realistic fines of up to £1,000, which is what will be allowed at District Court level. I believe they will impose various levels of fines depending on the seriousness of the offence. It was the case in the past that pollution and environmental offences generally were not taken seriously in many areas of Irish life, but with this legislation together with the changes in public awareness, I think we will see changes in that direction too.

In view of the comments made by Deputy Shatter, I will seek the advice of the Attorney General on this point.

Mr. Shatter

I thank the Minister for her constructive response. I find it very difficult to understand how the Attorney General's Office could reach the conclusion that £1,000 is the constitutional magical sum beyond which the District Court cannot impose a fine. The only constitutional constraints are that the court is a court of limited and local jurisdiction. The court can order damages up to the tune of £2,500 in this legislation as compensation for carrying out remedial works and can do so in a wide variety of other legislation. I really do not see any constitutional difficulty in the fine being brought up to £2,500.

I invite the Minister to look with a certain degree of scepticism at any advice she may get that suggests a fine of £2,500 imposed by the District Court would create any constitutional difficulty. The Minister might also inquire whether there is any other legislation in existence under which the District Court can impose fines of up to £2,500.

Mr. O'Shea

I would like to make one brief point. Where the polluter has to pay the costs awarded by the court, that is compensating the community for the injury done to them, but the penalties fall into a different category. They are penalties for breaking the law. I think this distinction is important. I think the penalty should reflect the injury done to the community. However, I withdraw my amendment at this stage pending Report Stage when the Minister will come back to it having reviewed the situaton in the light of Deputy Shatter's remarks.

Amendment, by leave, withdrawn.

Sections 7 and 8 agreed to.

SECTION 9.

An Ceann Comhairle

Amendment No. 11 is in the names of Deputies Quinn and O'Shea. I observe that amendment No. 12 is related and I suggest therefore that we discuss amendments Nos. 11 and 12 together. Is that agreed? Agreed.

Mr. O'Shea

I move amendment No. 11:

In page 11, between lines 40 and 41, to insert the following:

"(a) the deletion of `shall' and substitution therefor of `may' in subsection (2).

(b) the insertion in subsection (2) of the following paragraph—

‘(d) require the person to or on whom the notice is served to submit in writing to the local authority concerned—

(i) maps, plans, drawings or photographs showing the location, nature, extent and condition of any facilities for the collection, storage, treatment or disposal of the effluent or other polluting matter and any other premises from which polluting matter may enter water, and

(ii) such other particulars as may be specified in the notice of the matters aforesaid, including particulars of the arrangements, systems and methods in use or proposed for the disposal of the effluent or other polluting matter, and of the times and rates at which such disposal is effected.',".

The first part of my amendment deals with section 12 of the Principal Act. Section 12 (2) of the Principal Act, the Local Government (Water Polution) Act, 1977 states:

A notice under this section shall

(a) specify the measures...

(b) direct the person on whom the notice is served to take such measures as are specified in the notice, and,

(c) specify a period within which such measures are to be taken.

I want to address what is essentially a technical problem, which I have heard about from people who deal with the Act in the field and have the problem of serving section 12 notices on polluters. Under section 23 of the Principal Act it is possible to seek information from a polluter but there is no provision in either section 12, or section 23, to obtain information from a potential polluter. In practice, if a local authority want to serve a section 12 notice and are not in a position to get by way of right information that is required regarding a certain type of operation, for example, the number of animals or the type of effluent disposal facilities that are there already — it is very difficult to get a section 12 notice right; in other words, that is that the section 12 notice would deal specifically with the problem that is there. In my county, the experience has been that some farmers would wish to have a section 12 served upon them, and there is a reason for this. Under Statutory Instrument 348/84 development on foot of a section 12 notice is exempt from planning permission. I believe that Statutory Instrument was brought in for a very good reason that is, that a problem could be dealt with rapidly and the need to go through the planning process could be set to one side. However, the problem with a section 12 notice is that it will give a technical direction as to how a particular problem of effluent should be dealt with but it does not have to conform with planning considerations, in other words it could be aesthetically inappropriate in a high amenity area.

In order that section 12 of the Principal Act can be operated much more effectively by the local authorities, I am seeking in my amendment that the local authorities do not have to serve the notice, in other words, that the word "shall" is changed to "may"and the local authority can seek information from the polluter or potential polluter. If the local authority have reason to believe that a particular operation has the potential for major pollution, they should be in a position to obtain full and absolute information regarding the enterprise. The local authorities for instance can, require information under notice served under section 23 of the Principal Act, but this means that two managers' orders have to be signed, and I believe there are some legal difficulties here. I am looking for more flexibility in terms of section 12 of the Principal Act so that local authorities can enter into consultations with potential polluters but, more importantly, can obtain all the information which is relevant to the section 12 notice.

Progress reported; Committee to sit again.