Léim ar aghaidh chuig an bpríomhábhar

Tuesday, 28 Apr 1998

Vol. 1 No. 4

Roads (Amendment) Bill, 1997: Committee Stage.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

Section 2 defines substratum of land. It has been suggested that this provision needs to be amended to quantify the specific amount and depth of subsoil that may be acquired. Paragraph (b) of the same section refers to land required " for any other purpose connected with a scheme". That is vague and open-ended and I suggest it should be deleted. I would welcome the Minister of State's response to the points I have raised.

The purpose of the Bill is not to authorise the construction of the port tunnel or any other project or to authorise the acquisition of any particular land. It does not legislate for a particular project or route. As stated on Second Stage, its purpose is to provide a firm legal basis for any motorway scheme to specify a substratum of land which a local authority wishes to acquire for the construction of a tunnel and, if the scheme is approved, following public inquiries, etc., the power to acquire that substratum of land. Matters such as the route of a tunnel and tunnelling method, the depth of the tunnel and the environmental impact of any proposal are matters to be dealt with by making a motorway scheme and an EIS and matters to be decided following the completion of all statutory procedures.

With regard to paragraph (b), provision along these lines is necessary because it is not possible to anticipate what will be needed in all motorway schemes that involve acquisition of a substratum of land. We require legislation which is broad enough to cover what might be needed in the future. There can be no question of the wholesale acquisition of substrata of land so the paragraph is governed by the word "required". Any substratum will have to be required for the purpose of a scheme and the extent to which this is the case in any situation will be open to review by the Minister as part of the statutory procedures and, if necessary, by the courts.

Taking the port access tunnel as an example of a scheme which will be facilitated by the Bill, is it correct such a scheme will have to clearly specify the depth, route, location and the substrata required under paragraph (b)? Will the planning authority concerned and the proposer of the scheme be obliged to produce a scheme which is detailed in every respect? Will the application for each scheme have to specify the matters to which Deputy Haughey referred and the other technical matters connected therewith?

Deputy Dukes is correct in his assumptions. The strictures to which he referred will apply.

Subject to the arrangements made for further contact with this group, those points should be recorded as having been considered during our deliberations on Committee Stage.

Question put and agreed to.
Question proposed: "That section 3 stand part of the Bill."

Having regard to interest groups that have submitted their views in respect of the Bill, sections 3 and 4 make various amendments to sections 47 and 52 of the principal Act. They insert the phrase "substratum of land" into subsections where the word "land" is included. However, no amendments are proposed in respect of sections 52 (4) and (5) which deal with compensation. If the Bill is to be consistent and fair, the phrase "substratum of land" should also be inserted into these subsections where the word "land" is used.

The provisions of section 52(4) and (5) of the principal Act are not relevant to the main compensation issues because they only cover compensation for loss of access to public roads.

Question put and agreed to.
Question proposed: "That section 4 stand part of the Bill."

Section 4 adds a new subsection (9)(a)(i) to section 52 of the principal Act in which a time limit of two months is set in respect of an application for leave to apply for a judicial review. This time limit is also included in the new section 55A which section 5 of the Bill proposes to insert after section 55 of the principal Act. Two months is too short a period for voluntary organisations, such as residents' associations with inadequate resources, to examine the research implications of a scheme, assemble legal arguments and commit themselves to take legal action. The two month time limit is too restrictive and would virtually eliminate any opportunity for dissenting groups to appeal against a motorway scheme. The Bill should be amended to stipulate a six month period.

We are dealing with a David and Goliath situation where the authorities of State are promoting a project and there is little scope for consultation or real arguments to be put forward by voluntary organisations or individuals. The two month time limit is particularly restrictive and I suggest a longer period. Perhaps six months, would be more appropriate.

Two months is a reasonable time limit and it applies in planning and other areas. The current time limit under the CPO code is three weeks. The courts have discretion in respect of extending time limits.

Question put and agreed to.

I move amendment No. 1:

In page 5, lines 22 and 23, to delete "and the road authority concerned".

If Deputy Haughey believes two months is too short a period, I will support an amendment in that regard. Perhaps we could consider that matter before Report Stage.

Amendment No. 1 which involves the procedures relating to judicial review would remove the need to notify road authorities of an application for leave to seek a judicial review. The order being challenged originates with the Minister and, therefore, notification should be sent to the Minister, not the road authorities. The costs and time involved would be reduced as a result because the Minister would have sole responsibility for defending the judicial action. This would be a better way to proceed.

When an application is made for judicial review, it is important that notice be given to the local road authority and to the Minister. While it is the Minister's decision which is being challenged, that decision is fundamentally dependent on the motorway scheme or EIS to which it relates. The motorway scheme or EIS is made by the local authority and it is, therefore, reasonable that the local authority be given notice of any application for judicial review. This is also likely to save time. Given that proceedings tend to revolve to a considerable extent around the motorway scheme or EIS made by the local authority, it is better that the authority be involved in the proceedings from the start rather than a case being delayed later when it becomes involved. For these reasons I do not propose to accept the amendment.

It would delay matters where there is a separate consideration and perhaps a separate legal entity involved. The procedure is straightforward. It is the Minister's order and it is for him to defend it if there is a judicial review. That should be a clear demarcation. If the courts determine later that the roads authority should be involved they can order notice to be served on the relevant road authority. However, for them to be involved from the start moves away from the fundamental issue that it is the Minister's order. It is for the Minister to make the determination and to defend that determination in the courts in the event of a challenge.

We have looked closely at the amendment and I am unable to accept it. It is important that the local authority is involved in the EIS and otherwise.

Question put and declared lost.

I move amendment No. 2:

In page 5, lines 37 and 38, to delete "which leave shall only be granted where the High Court certifies that its decision" and substitute "or the Supreme Court which leave shall be granted only where the court certifies that the decision of the High Court".

The impact of the provision is to confine the appeal from the High Court to the Supreme Court to a restricted form. I wish to leave with the appellant the right to go to the Supreme Court if he is dissatisfied with the decision of the High Court. It is important that the Supreme Court will be allowed to grant a certificate of appeal even if the High Court turns it down. That is in line with normal court procedures in a criminal matter. There are many High Court judges and if a person feels a decision by a judge needs to be reviewed the facility should exist to present a petition to the Supreme Court so that it may adjudicate on it. That opens the avenue to further appeal and review.

I do not suggest that an individual High Court judge would give an untoward judgment, but in the event of that occurring it should be open to the Supreme Court to review that decision. Therefore, I ask the Minister of State to accept the amendment.

In considering the proposed amendment we must reflect on the purpose of the section as agreed by the Dáil on Second Stage. Its purpose is to ensure that legal proceedings challenging decisions on motorway schemes or environmental impact statements can be brought to finality as expeditiously as possible, bearing in mind the importance of having final and conclusive decisions on major road development proposals within a reasonable timescale.

By providing for unrestricted access to the Supreme Court the proposed amendment would frustrate the objective of bringing finality to legal proceedings as quickly as possible. It is not necessary given the safeguards for the individual to which I have referred. I am satisfied that the text of section 55A which will be operated by the courts achieves the right balance between the competing considerations. I do not propose to accept the amendment.

Will the Minister of State reconsider? The provision as is restricts the right of the citizen to due process. If a judicial review of a ministerial order is heard by a High Court judge there should be a clear right, as in most other legal cases, for an individual to go to the Supreme Court to have the High Court judgment reviewed. I understand the need to come to finality but there would be finality. There should be a right for the individual to petition the Supreme Court to see if there is a case for reviewing a High Court decision. That is the norm in a criminal action.

Some of the decisions that may be made are of great importance to citizens and we should not cut off the avenue of appeal to the Supreme Court. It is a fundamental principle and I ask the Minister of State to reflect on it.

On Second Stage different views were expressed about the proposed judicial review provisions. While some Deputies supported the section others expressed opposition. It is clear that a consensus will be difficult to achieve. The Government's view is that we must balance the needs of the common good against the legitimate concerns of individuals. Section 5 helps to achieve that balance. It is wrong to suggest that the new provisions will deny objectors an opportunity to have their views taken into account.

A judicial review would not be a reopening of the public inquiry, a further consideration of objections or second guessing the Minister's decision. The role of the courts on judicial review is to consider whether the road authority or the Minister exercised their powers and functions in accordance with the law.

Important safeguards for the individual are included in the section, including a full two month period given for a challenge to be made, the provision for the period to be extended in some cases, provision for the High Court to allow cases to go for consideration by the Supreme Court and the exclusion of constitutional issues from the operation of subsection (4)(a).

I am concerned that this provision as written should not be agreed to. Deputy Haughey has said that the waiting period of two months for a community group is wholly inadequate. The Minister of State puts the two month period forward as one of the safeguards for the public, yet Deputies are concerned that it is inadequate.

The Minister of State is right that a judicial review would relate to the legality of the procedure. The procedure is that there is a period of up to two months to make an application to the High Court and a High Court judge will make a determination. If this section is agreed to that might well be the end of the process because the only appeal would be by leave of the High Court. This is counter to the normal procedure whereby it is open to people to appeal a decision of the High Court to the Supreme Court for a definite opinion.

The matters in question are not minor. Some of the matters subject to judicial review would be of fundamental importance to communities and geographical areas. It would not be appropriate to foreshorten the appeal mechanisms available. I urge the Minister of State to reconsider.

I also ask the Minister of State to reconsider. I am not persuaded by the argument which says that a period of two months is inadequate because we are talking about an application for leave to seek judicial review, not the seeking of a judicial review. Deputy Howlin's other point is well made. It is not enough to argue that we should take one of the normal recourses available out of the system because if it were left in it would delay the entire process. That is not a good enough argument to cut off another possibility of reconsideration of such a matter. The Minister will not do any damage to the intention of the Bill by accepting the amendment. He may insert "in cases" adding the potential of one further step in the process but it is nothing more than that and the Minister should accept the amendment.

The proposed rules on judicial review are the same as those for the planning code and the court has discretion, if it so decides, to extend the period. The points made have been covered. On Second Stage there was a divided view on it and we have provided for the concerns expressed.

I get the impression the Minister of State has a brief not to accept any amendments or be swayed by the arguments of Members. That is disappointing because in dealing with legislation on this committee heretofore there has been willingness by the Government to accept amendments. On the most recent planning Bill a number of amendments were readily accepted. There is logic in the argument and I would be deeply concerned if a further appeal to the Supreme Court was cut off by the Bill. If the Minister of State undertakes to consider it further before Report Stage, I will withdraw the amendment.

I assure the Deputy that I do not have a closed mind on Members' views and I am aware of the different views that have been expressed. I will come back to the amendment on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 6, line 2, after "may" to insert "refer the matter back to the Minister in order to enable him or her to".

The amendment is aimed at preserving the separation of powers. The section states the High Court may, if it sees fit, "declare to be invalid or quash the part or any provision thereof without declaring it to be invalid or quashing the remainder of the order or part, as the case may be, and if the court does so, it may make any consequential amendments to the remainder of the order. I have a difficulty with the courts usurping the power of the Minister as it is up to the him or her to make the order. If there is a judicial review and the High Court determines that the Minister is acting ultra vires and gives a direction to quash part of the order or to seek to amend part of the order, it should refer it to the Minister to make the amendment rather than have the right to make the amendment itself. Many of us expressed concerns about the courts acting as primary legislators. There is a right in law for the Minister to make such orders, but if he acts outside his powers the court should state that and refer the order to the Minister to make his or her decision as he or she is entitled to under law. The amendment would allow the Minister to make consequential amendments to the remainder of the order.

Section 5, as it currently stands, provides that the High Court may decide to quash part only of any order and make consequential amendments to retain the validity of the balance. The Minister determines road authority proposals on their merits and the courts, when called upon, review such decisions from a legal perspective. It would be wrong in principle that the Minister should be called upon to effectively elaborate on decisions of the courts. The proposals would introduce undesirable and unnecessary confusion between hitherto distinct roles of the Minister and the courts in terms of motorway schemes. Consequential changes of the type discussed are an integral part of the decision of the courts and should be made by them. I do not accept the amendment.

That does not surprise me.

Looking at the amendment in procedural terms, if the matter were to be referred back to the Minister how would he or she deal with it. Would a public inquiry have to be reopened? Would a further opportunity have to be given for public submissions and would a decision by the Minister on consequential changes then be open to further legal challenge with more delays?

I understand the Minister of State's argument, but it is time the Oireachtas ring fenced its powers and did not surrender powers to the courts to carry out the work given to Ministers and the Oireachtas. I do not see any difficulty in the court quashing part of any order if it is determined to be ultra vires or illegal. The reasoning behind the judgment would be given and the Minister would be informed of that. It would then be up to the Minister to act in accordance with law and carry out the duty given to him or her by primary statute, which is to make orders. Any legal order made that fits such a judgment would not be subject to further challenge.

The courts should decide amendments to orders. The Deputy referred to a wider debate in terms of the Oireachtas. However, I am not prepared to accept the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 6, between lines 7 and 8, to insert the following subsection:

"(7) This section shall not apply to proceedings initiated before the passing of the Roads (Amendment) Act, 1998.”.

This seeks to add a further subsection to section 5. I received legal advice that this is necessary for constitutional reasons to ensure new restrictions on judicial reviews are not struck down because they might be held to interfere with existing proceedings.

The amendment is unnecessary. It is the intention that section 55(a) of the primary legislation will apply to applications for judicial review made after its commencement. Upon enactment, legal challenges will have to be by way of application for judicial review. Such applications will have to comply with the requirements of the section. However, I am happy to have the matter examined in detail and return to it on Report Stage when any amendments considered desirable to put the matter beyond doubt will be made.

On that basis, I will withdraw it. I want to put beyond doubt that it does not apply to proceedings which take place in advance of enactment of this Bill so that there is no confusion or ambiguity.

Amendment, by leave, withdrawn.
Section 5 agreed to.
Question proposed: "That section 6 stand part of the Bill."

Does the Minister think we can deal with this section at this stage? It amends the Transport (Dublin Light Rail) Act, 1996, to which no effect has been given. Therefore, there is no Act in operation. The Government may not decide whether it is enacted for another week. The consideration of this section may be a waste of time. It is possible we may not need this provision in the context of the Transport (Dublin Light Rail) Act, 1996. I hope we do not. If we do not, there is not much point in legislating for it. Will the Minister tell us whether it is redundant to proceed with this section? Should we wait another week and hope the Government has laid an egg in the meantime so we know what it intends to do about the Dublin light rail system?

We are waiting with baited breath.

Has Deputy Haughey not been told?

Backbenchers are the last to know. Unlike Deputy Dukes, I believe this section is necessary to avoid traffic chaos. I would welcome an answer to the questions asked by Deputy Dukes. However, it is important to have this power to facilitate Luas going underground. What is the updated position on Luas?

The Transport (Dublin Light Rail) Act, 1996, enables the construction, operation and maintenance of Dublin light rail. It was always intended to confer the necessary rights to proceed on street or underground, as the case may be. The proposed amendments to section 6 of the Roads Bill which amend the light rail legislation, removes any doubt about conferring powers to proceed with an underground option. Any decision taken on the issue of whether light rail is on street or underground is not material to the amendments proposed by the Roads Bill, except in so far as they carry through to the light rail legislation which will enable any decisions on the underground or on street options to be implemented. We can return to this on Report Stage in the light of any developments in the meantime.

Will Report Stage be taken at a time which fulfils the Minister's last criterion, that is, will a decision be made on the Dublin light rail system before Report Stage? I am baffled about what the Minister said about the relevance of this to the light rail system. If there is an overground light rail system, we do not need this provision. If there is an eventual proposal to have an underground light rail system, which would be silly, we will need it. I do not see much point in amending the Transport (Dublin Light Rail) Act, 1996, to do something which might not be contemplated.

If we are to have an underground light rail system, we do not need this power. We will not need rights to use a substratum of land if the system is entirely overground. Will we take Report Stage at a time when we know the fate of the Dublin light rail system? Why do we need to make this provision when we do not know whether it will be needed in practice?

It is for the Whips to decide when Report Stage will be taken in the Dáil. I do not know what will take place in the future but we are making provision in the legislation for circumstances which may arise.

I hope the Minister stays on track.

I indicated that we can return to this on Report Stage.

We will have to, as it is a section rather than an amendment.

Question put and declared carried.
Question proposed: "That section 7 stand part of the Bill."

I may have missed this on Second Stage. Will the Minister give some examples of the schemes contemplated in this section? It is there because certain schemes may have a question mark over them. This section is the braces to go with the belt.

The difficulty is that there may not be sufficiently clear delineation in the documentation associated with motorway schemes. Three approved motorway schemes are involved - the Southern Cross route, Dun Laoghaire-Dundalk and the Kildare town bypass.

Will the Minister indicate the deficiencies in the preparation of these schemes?

Section 7 is intended to put beyond doubt the status as motorways of a limited number of proposed public roads. The Roads Act, 1993, substituted new motorway scheme procedures for those in the Local Government (Roads and Motorways) Act, 1974, the repeal of which was provided for by the 1993 Act and effected in 1994. The procedures under the 1974 Act had two elements - first, a motorway scheme was prepared by the local authority, a public inquiry was held and a ministerial decision was made; second, where a motorway scheme was approved by the Minister, another separate ministerial order was required declaring the road which was the subject of the approved scheme to be a motorway.

In contrast, the 1993 Act provides for a single motorway scheme procedure which involves only one formal decision by the Minister. That Act also contained transitional provisions in section 5 aimed at catering for situations where motorway schemes had been made by local authorities under the 1974 Act. However, the procedures under the Act had not been completed when the Act was repealed.

Subsequent experience with these transitional provisions suggest they may not be sufficient to make good the absence from the 1993 Act of the previous power of formally declaring to be a motorway a road which had been a subject of an approved motorway scheme made under the 1974 Act. The difficulty is that there may not be sufficiently clear delineation of the line of the motorway concerned in the documentation associated with motorway schemes. Motorists are affected by this. These roads have been the subject of motorway schemes produced by road authorities under the 1974 Act and were approved by the Minister following compliance with the statutory procedures under the Act or under the Roads Act, 1993.

I thank the Minister of State for his explanation. I refer to section 6. Foresight is not always great as it can lead one astray at times. Will he think again about section 6 taking into consideration the reasons he gave for including section 7?

Question put and agreed to.
Section 8 agreed to.
Title agreed to.