Section 193(1)(b) states: “the local authority is satisfied that the land should be made available for the purposes of any of those functions,”. I assume that is the functions of the local authority. Why is it necessary to state that in the way it is stated here? If land is vested in a local authority for the purpose of its functions and the local authority is satisfied that the land should be made available for the purposes of these functions, it can be made available. Is this not unnecessary?
Planning and Development Bill, 1999 [Seanad]: Committee Stage (Resumed).
Section 192 agreed to.
SECTION 193.
Question proposed: "That section 193 stand part of the Bill."
It is to cover circumstances where a local authority acquires land at some stage under CPO for housing or something else and it does not use it for that purpose but wants to use it for some other purpose, say, a road or whatever. It is to cover such an eventuality.
It is not new then?
No. That is in the 1963 Act as well.
So it is possible for a local authority to compulsorily acquire land for one purpose and then use it for another?
It is not the practice although I know of a case in my constituency where the land was bought originally for one purpose, not used for that purpose and about ten or 15 years later a roadway was put in to facilitate a telecommunications mast or something like that, so it does happen.
Question put and agreed to.
SECTION 194.
I move amendment No. 562:
In page 173, subsection (2), line 3, after "Minister" to insert "and of the elected members".
My proposal is to require the consent not only of the Minister but also of the elected members for the sale of land for less than the full market value. What is envisaged here is that the local authority could conceivably find that somebody else had a use for the land which the local authority felt was useful or desirable, and this is to allow the local authority a degree of latitude compared to most public agencies. I assume it would be for social or environmental purposes. It is to allow the local authority to make land available to groups like that for less than the market value where it believes there is a good reason for doing so, and that requires the consent of the Minister. This may not be the appropriate way to do it but it would be useful to have the consent of the elected members also in a case like that.
The consent of the elected members is required. It must go before the elected members. Under section 83 of the Local Government Act, 1946, they have to decide it and then for the purposes of scrutiny and so on it goes to the Minister for final approval, but it is the elected members who decide that. The Deputy is right in that it is designed for a case where, for example, a local authority might wish to give land at a reduced price to, say, a football club or a community facility of some kind.
Arising from the amendment and the point about ministerial consent, I may consider for Report Stage an amendment which would allow the Minister to make regulations which would provide that a Minister's consent would not be required in all cases. I agree with the Deputy that in the interest of subsidiarity and so on it is important to give as much flexibility and freedom as possible to the local members. I am thinking about doing that and probably in very specific instances such as the one I described. Obviously we would have to be careful about local authorities disposing of land to, say, developers or to certain people below cost price. That could give rise to abuses but for community and charitablepurposes members should be given some discretion in that. I suppose all the members here are familiar with the procedures involved in trying to obtain a disused Garda barracks or something like that. I have been through the experience myself once or twice. The other one was Border posts, trying to go through the procedures that apply at a central level and get Department of Finance approval and so on. There should be discretion at local level in this type of case to facilitate community groups.
Is there anything about this local authority procedure in the local authority Bill?
It is restated in the Bill.
So we will have a chance to discuss it?
We will have a chance to discuss it, yes.
Amendment, by leave, withdrawn.
Section 194 agreed to.
SECTION 195.
I move amendment No. 563:
In page 174, lines 32 to 37, to delete subsection (5).
Subsection (5) restated unchanged subsection (4) of section 77 of the 1963 Act which was inserted in that Act to ensure that planning authorities had full powers to acquire not only land but also the rights over land, for example, rights which they themselves had granted, such as leaseholds, and that was thought pertinent in particular in relation to urban renewal. Section 196 of the Bill provides a basic power to acquire land which, by definition under section 2, includes rights over land. Subsection (5) of the Bill is now redundant and we are removing it.
Amendment agreed to.
Section 195, as amended, agreed to.
SECTION 196.
I move amendment No. 564:
In page 174, lines 41 to 48, to delete subsection (2) and substitute the following:
"(2)(a) A local authority may, for the purposes of performing any of its functions (whether conferred by or under this Act, or any other enactment passed before or after the passing of this Act) do all or any of the following:
(i) acquire land, permanently or temporarily, by agreement or compulsorily,
(ii) acquire, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right over or in respect of any land or water or any substratum of land,
(iii) restrict or otherwise interfere with, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right over or in respect of any land or water or any substratum of land,
and the performance of all or any of the functions referred to in subparagraphs (i), (ii) and (iii) are referred to in this Act as an ’acquisition of land’.
(b) A reference in paragraph (a) to acquisition by agreement shall include acquisition by way of purchase, lease, exchange or otherwise.
(c) The functions conferred on a local authority by paragraph (a) may be performed in relation to-
(i) land, or
(ii) any easement, way-leave, water-right or other right to which that paragraph applies,
whether situated or exercisable, as the case may be, inside or outside the functional area of the local authority concerned.".
Will the Minister tell us the changes that are being made in acquisition procedures in the Bill?
The only change we are making, along the lines of what I said a few minutes ago, is that when land is being acquired, the rights over and above it will be acquired also. Other than that there is no other change.
Is the question of the land being inside or outside the functional area of the local authority changed in any way?
No.
So a local authority has the right to acquire compulsorily land outside its functional area?
Inside or outside, yes. That is a restatement of a power they have as well.
Amendment agreed to.
Section 196, as amended, agreed to.
SECTION 197.
Question proposed: "That section 197 stand part of the Bill."
This is a substantial change. The Minister is proposing to transfer his functions in relation to the compulsory acquisition of land to An Bord Pleanála. I may not be entirely right in my understanding of this but it appears, if I read it correctly, that a compulsory acquisition of land now is a procedure that starts with a local authority and the local authority has to go through certain steps before it can compulsorily acquire land, and quite rightly. A decision by a local authority compulsorily to acquire land is not an automatic decision. When it notifies the people concerned, certain steps have to be gone through to safeguard the rights of property owners and in the event that it is not possible to arrive at an agreement all round, if the local authority wishes to persist in spite of this agreement, the matter is referred to the Minister. The Minister is now proposing to refer it to An Bord Pleanála. As I understand it, in the procedure that is now being put in place, the transfer to An Bord Pleanála, there is the potential at least for the rights of the property owner to be heard and to be consulted to be reduced because the Minister had a greater obligation to consult than is being provided here for An Bord Pleanála. Will the Minister indicate the changes in procedure that follow on this transfer of functions to An Bord Pleanála.
I am not happy about what is proposed. We must consider sections 197 and 198 together. Section 197 is confined to the Minister's powers in relation to the compulsory acquisition of land. Section 198 is wider and deals with the functions conferred on the Minister under the 1993 Roads Act. A number of issues arise in this regard, including that concerning the landowners in question. Up to now they had a right of access to the Minister to effectively appeal a compulsory acquisition order by a local authority.
There is also the wider issue. The powers in relation to compulsory acquisition are in many respects the only powers to bring to ministerial attention the decisions on roads, provision of sanitary services, water and a range of infrastructural development. Through the exercise of those powers and through public inquiries Ministers order that a view be concluded and there is ministerial accountability by way of those provisions.
For example, up to now the plans for a motorway scheme would have been passed to the Minister for approval and a public inquiry would have been held. The practice up to now has been that plans for the provision of a substantial sewerage scheme that might cause difficulties or major infrastructural works that would be carried out by a local authority would have ended up on the Minister's desk. There was access and accountability through the political process for decisions on those projects.
The Minister now proposes to divest himself of that responsibility, strip away political accountability and hand it over to An Bord Pleanála. If an issue arises in an area in relation to a road development, sewerage works, water treatment works, derelict sites or other works provided for in the section, there will be no point in anybody approaching the Minister about them. There would be no opportunity for a Member of Dáil Éireann to table a question to the Minister on it because he would no longer be responsible to the House for it as responsibility would have been transferred to An Bord Pleanála.
Substantial infrastructural works will take place in the context of the national development plan. Under this section the Minister is effectively washing his hands of difficult decisions that would have ended up back on his desk by transferring responsibility for them to An Bord Pleanála. Under section 201 An Bord Pleanála, in its absolute discretion, can decide not to hold an oral hearing on such matters.
Under this regime, a major road scheme that might involve a considerable amount of land take, in respect of which many issues may arise, may be dealt with by a local authority or the National Roads Authority. Instead of that scheme being passed to the Minister, it will now be passed to An Bord Pleanála which, at its absolute discretion, can decide it will not hold an oral hearing into it. Another section provides that the Minister retains the power to give a direction to An Bord Pleanála to speed up its decision on the matter. That will result in more people climbing up trees to stop projects because a sufficiently adequate consultative procedure is not in place. The degree of political access and political accountability that existed up to now will be removed. Therefore, this is not an advisable measure. Like Deputy Dukes, I will oppose this section and section 198 when we come to deal with it.
If this section falls, section 198 will also fall.
Deputy Dukes asked me the changes I will introduce in the CPO procedure. A major change will be the confirmation of CPOs by local authorities where no objections are made to them. At present, a local authority follows a CPO procedure and where there is no objection to it and no public inquiry, it is still passed to the Minister to confirm it, even though the local authority initiated it. Time limits will apply to submitting CPOs and road schemes to the board for its confirmation. An 18 week objective applies to making decisions on CPOs and road schemes.
As Deputy Gilmore pointed out, the board will have discretion as to whether it holds an oral hearing into a CPO. The presumption is it will hold an oral hearing into a CPO unless, at its discretion, it deems it is not necessary. I have dealt with a CPO in respect of which one letter, which was not really an objection but of a general nature, was received, and I had to appoint an inspector and hold an inquiry into it. Some such inquires are adjourned after ten minutes because the person who wrote the letter does not appear at the inquiry. In such cases that are non-controversial, the board, at its discretion, would have the right not to hold a formal public inquiry, but that does not mean that people would not have the right to make their views and observations known in writing following receipt of which the board would decide on the matter.
The board will also be given the power to set up a separate division to consider CPOs and road schemes to facilitate the speedy consideration of projects. A speedy consideration of a project does not automatically mean a reduction in the level of consultation.
With regard to what Deputy Gilmore said about people climbing up trees, that is probably one of the worst examples he could give as there was more consultation on that project than there was on many more that got through with much less hassle.
Under this section we are not creating any democratic deficit. As some of my party colleagues would tell Members, once a CPO procedure is in place and an inquiry is set up, there was no point in making representations to the Minister. Once a CPO has been served, I am legally obliged, as my predecessors were, not to take any representations outside the formal representations made through the inquiry system. The section confirms the existing position.
I do not think Deputy Kelleher approached me about this matter, but some of my other colleagues did and I told them I could not take representations and outlined the proper procedure to them. I wrote to a considerable number of people across the political divide, as my predecessors did, and outlined the procedure.
The Minister exercises a quasi-judicial role and cannot take representations outside the formal system. If any Member tabled a parliamentary question to me or any of my predecessors on CPOs, they would have got a reply to the effect that an inquiry was held, the report is on the Minister's desk and it will be dealt with as soon as possible, with no further information. I am not creating a democratic deficit, I am handing over a decision to an independent body. The Minister makes policy decisions in relation to roads and other general matters but a decision in relation to an individual matter should properly be made independent of the Minister. The policy maker should not make the final decision. Members will remember a time - it was before I became involved in national politics - when Ministers for the Environment had a policy-making role in relation to planning and also had responsibility for deciding on appeals. Everybody considered that wrong and, correctly, it was changed.
Some of those Ministers for the Environment were Meath men as well.
Exactly. I am attempting to streamline the system and to make a clear distinction between policy-making and individual decisions on individual matters. That is in everybody's interest. It can be strongly argued that the Minister for the Environment and Local Government, having decided on the roads policy, has a vested interest in ensuring that every CPO that comes before him in relation to a roads project is passed, irrespective of the objections made. It can be validly argued that the Minister has a vested interest in ensuring that every motorway scheme which comes before him is passed, irrespective of what environmental depredations it might cause.
I am seeking to remove that power from the Minister and to transfer it to an independent body which will make the decisions on an objective basis and will not be swayed by a policy stance. There might be a misunderstanding of the role of the Minister in CPOs but I am surprised that the Deputies would oppose something that is designed to make the system more transparent. I ask them to reconsider their opposition to this section.
I have a degree of sympathy with the Minister's stance. I have been in the position of having to transfer functions from Ministers to other agencies. However, one can say the same thing about the courts. I have seen decisions by An Bord Pleanála that are incomprehensible. Some decisions have been made which people, with the best will in the world, find difficult to understand.
The fact that one sets up an independent agency to remove issues from the political sphere does not always mean one will get sensible decisions. People do not suddenly become Renaissance men and women because they are appointed to the board of An Bord Pleanála. That is said with no disrespect to anybody on those boards. The inconvenient aspect of the board is that in cases where the matter remains controversial, there is no comeback for the general public. There can be cases where An Bord Pleanála or another publicly appointed independent agency makes decisions which are against the grain of public opinion or against the opinion of the most affected people and there is no way of dealing with it.
I am not saying we should suborn them but one cannot even have a discussion with these agencies. It is a problem we will encounter again and again as we go through the process of establishing regulators. Whenever we establish a regulator, whether it is An Bord Pleanála, the regulator of telecommunications, the Independent Radio and Television Commission or whatever, we are taking potentially important decisions out of the realm of public and political debate. It is fashionable to decry political debate but democracy is about political debate. We have to be careful with the temptation to give in to the fashion of saying we must remove these decisions from the political arena and give them to the experts.
Ultimately, politicians are easier to deal with than experts. They are more understanding of the general background. That is the problem - they are human and they have the same warts as other humans. The problem with regulators - I am not targeting a specific regulator - is that they are also human but they are impregnable. One cannot get at them. This must be borne in mind.
I will outline the current process. A local authority goes through the CPO procedure and satisfies itself as to the propriety of what it is doing, and there is still an argument. When the matter is contested, it is referred to the Minister who operates in a quasi-judicial manner. The first function of the Minister is to appoint an inspector to carry out an inquiry. The inspector listens to the various opinions on and objections to the matter and reports to the Minister with a recommendation. At the end of the inquiry, the Minister is presented with the report which says: "This view was put on this side, these were the views on that side and my recommendation is whatever".
The Minister must make a choice. He can accept or reject the recommendation and make the appropriate order. If the inspector produces a report to the Minister which recommends that he uphold the decision of the local authority in the case and the Minister does not agree and will not confirm the compulsory purchase order, that is the end of the matter. The compulsory purchase order is not made and the scheme does not proceed. There has also been a public inquiry.
This section of the Bill would substitute An Bord Pleanála for the Minister. An Bord Pleanála is good at not accepting representations and that is part of its job. We might discuss procedures in this regard on another day, but the board is good at it. Unlike the Minister, however, An Bord Pleanála can decide to have or not to have an inquiry, as the case may be. Under section 201, the board "in its absolute discretion" can decide not to hold an oral hearing if it "would not be likely to aid its understanding of the issues involved". The board can, like one of Fianna Fáil's previous leaders, look into its heart and decide the issue.
The Minister and I do not know how the board will judge a case where there is only one objection and where the presentation of the objection does not appear to be compelling. In some cases, as the Minister told us, an objection might be one letter which arrives on the Minister's desk and the person does not turn up for the inquiry. That is the risk one must take. It might be inconvenient but it is worth doing. The person can never complain afterwards that he or she did not get the chance of a fair hearing.
It can also happen - the Minister will not have to go far to find cases of this nature - that one letter or document will arrive stating an objection and behind that objection there is a substantial and considerable body of local interests who have a real case. There have been cases of public inquiries held where there was only one objection but where a worthwhile argument was presented either for or against the action that was taken. One cannot prejudge these matters.
However, An Bord Pleanála has the option of prejudging them. It can decide "in its absolute discretion" not to hold a public inquiry. In the great majority of such cases there might not be anything extra to hear. However, there may be more to hear in some cases but An Bord Pleanála in its absolute discretion has decided it will not hear any more. That is a substantial change in the avenues open to interested parties to make their views known about an important issue, such as a compulsory purchase order. It does not arise in the vast majority of cases because the issue is resolved at local authority level. I ask the Minister to confirm that the proportion of compulsory purchase orders referred to the Minister is small.
They all come for final confirmation.
Yes, but what proportion of them is still contentious at that stage?
Most of them which come to the Minister contain objections, contentions and solicitors' letters.
The case I am making is stronger than I thought. The more of them which are still contentious at that stage, the more it seems is the potential for An Bord Pleanála to overlook, in its absolute discretion, issues of importance. I have doubts about transferring to An Bord Pleanála the functions of the Minister in these matters. However, I am more worried about transferring the functions with a reduction in the access of interested parties and of their opportunity to have their cases heard.
Although it is probably not fashionable to say this, I object to the general principle that there are issues we should take out of the political arena. Under the Constitution, people elect politicians to the Oireachtas and to local authorities to make decisions. We make those decisions with our intellectual and political baggage, we score points off each other and we have debates in which we do the best we can. If the people do not like what we are doing, they can sling us out regularly. It is the ultimate form of accountability.
There are few issues - perhaps mobile telephone and radio licences are among them - which are appropriate to transfer into the hands of experts, or philosopher kings who the ancient Greeks used to have, who are all knowing and all wise about such matters which are objective and can be measured. The effects on a community of making a particular motorway order rather than another or compulsorily acquiring land for a purpose in one area rather than another are not measurable by the type of standards used for radio licences and the congestion of the wave bands. They relate to the quality of a community and they quintessentially require political rather than technical judgment.
An Bord Pleanála does a technical job extremely well and it has always been keen on having its functions and the things to which it shall have regard closely defined. The more measurable and tangible they are, the more AnBord Pleanála likes it because it is making judgments on proper planning and development and it is not making value judgments on the quality of the community which will result from what it is doing.
We are talking about compulsory purchase orders. I would be less upset if the provision in section 201, which limits access to oral hearings, was removed. If section 201 provided an identical approach to public inquiries and oral hearings, as we now have, I would be less unhappy about it and I could accept it. However, when we transfer this to An Bord Pleanála out of the reach of qualitative political argument and reduce the access, I begin to worry. I am not comforted when the Minister says - he is probably right - he expects that in most cases An Bord Pleanála would opt for an inquiry. There will be some cases where it should opt for an inquiry but it will not. It is a judgmental issue and it cannot be faulted for doing that. We should not knowingly run the risk of reducing access in that way
Both this section and section 198 are making a fundamental change in the chain of accountability for public infrastructural projects and in the role of An Bord Pleanála. Until now, An Bord Pleanála has been an appeals body which has dealt with appeals about private developments on private land. It is interesting that in the past couple of days when some of us attempted to extend that role to allow An Bord Pleanála to be an appeals body for developments carried out by local authorities or State bodies the Minister rejected it. An Bord Pleanála has no appeals role if a local authority is building a housing scheme but it will have an appeals role if the local authority decides to compulsorily acquire the land on which it is proposed to build the scheme or if it acquires land to put a motorway through that area.
This Bill gives An Bord Pleanála an appeals role in the area of public infrastructure, which is not what it was set up to do. That is not an appropriate role for An Bord Pleanála. Public infrastructure is primarily a matter of public policy and the Minister must be responsible for that. We are heading into a decade of investment in infrastructure. We are told we will build major motorways between Galway and Dublin, Dublin and Cork and Galway and Limerick.
I have been campaigning for that for years.
I meant Dublin and Limerick. Subliminally, life begins in Galway. It is the centre of Ireland. We will also have major investments in water and sanitary services and in housing. All this will involve the compulsory acquisition of land. Three or four possible routes have been mentioned for the proposed Galway-Dublin motorway from Ballinasloe to Kilcock. Decisions will have to be made about major issues.
The type of thinking which has developed recently is that every objector is almost an enemy of the State and that ways must be devised to frustrate them. Let us take the example of motorways and national roads of which we will be building a lot in the next decade. We will build a motorway from Dublin to Cork almost parallel to the existing Dublin-Cork road, which I support. We have an arrangement in place under the Roads Act which states the decision on that motorway and its alignment and design will be made by an appointed body called the National Roads Authority. In so far as local authorities or elected representatives of the people have any role in it at any level, it is tangential. Local authorities may include it or show it in their development plans, but the National Roads Authority does not have to take account of that as it decides. We then proceed with the compulsory purchase stage. The only involvement of an elected person, accountable to the people and to the Oireachtas, was through the CPO role the Minister for the Environment had in approving such a provision and through the public inquiry process. That will now be removed, however. A motorway scheme could be conceived, designed, planned, laid down, have land compulsorily acquired for it, and be built without any member of the public having any say in it through access to any person elected on their behalf. At the design stage or when the line is being decided, the public will be told that it is a matter for the National Roads Authority. At the compulsory purchase stage the public will be told it is no longer a matter for the Minister and that appeals must be made to An Bord Pleanála. That is a democratic deficit no matter how the Minister describes it.
I accept entirely that he and his predecessors acted in absolute independence in the exercise of their functions, but ultimately the Minister is still accountable to the Oireachtas for his decisions. While, quite rightly, we may not be able to influence the Minister during the process he sets down to make that decision, if we do not like the decision we can question him in the House or in committee. The Minister knows that whatever decision is arrived at, he can be publicly questioned and examined by elected representatives. When that process is transferred to An Bord Pleanála that will no longer be the case.
The thinking behind this concerns the fact that all this investment will be coming through the pipeline over the next decade. We all welcome it and we know it has to happen because we have an infrastructural deficit. However, there is also a school of thought that ways have to be devised to literally steamroll over public objections or concerns. That is undemocratic and it will be counterproductive. If a steamroller process is introduced, which includes a decision-making process by unelected, appointed persons who cannot be questioned about their individual decisions, one will end up with people finding other ways to express their opinions and assert their rights.
It could also be counterproductive from the point of view of the infrastructural investment strategy. Let us take the Cork-Dublin motorway, for example. I do not know how it will be advanced as a scheme. Up to now these schemes have been advanced on a section by section basis, although I favour the total project approach. Let us suppose that An Bord Pleanála decides, for whatever reason, that the compulsory purchase order by Kildare County Council for the section that runs past Abbeyleix should not be approved, where is the redress? What used to be called Ireland Inc. might well feel that this motorway has to be completed, but the independent body has already refused the compulsory purchase order. Therefore, the matter cuts both ways. This may be designed to frustrate people who have legitimate objections, and it may be a response to that, but it can also cut the other way by causing difficulties for the progress of infrastructural development.
The Minister may say that under the legislation he still has power to give direction to An Bord Pleanála and that the board must have regard for Government policy, but that is an indirect way of dealing with issues of public decision making. There is a fundamental difference between the role of An Bord Pleanála as regards an individual private developer who is developing 300 houses or a commercial development and the role the Minister exercises on behalf of the people concerning major infrastructural projects whose importance is increasingly emphasised and of which we will see more. We should not take this route.
I do not regard the Minister as wishing to avoid making decisions. His thinking is flawed, however, if it based on the fact that a big infrastructural package must be proceeded with over the next ten years and that if we leave approval of all compulsory purchase orders to the Minister - Ministers and their parties become nervous coming up to election time - we will have all this possible, albeit indirect, political pressure on Ministers, so we should give the power to an independent body. If that is the thinking behind this, it is fundamentally flawed because it does not make a distinction between private projects and public ones for which there is public accountability. This measure will be counterproductive. It will create a situation whereby if the political accountability of the process is frustrated, people will start looking at other ways of doing it.
I have spent the past two and a half years writing back to my constituents about planning matters and, more recently, about roads and dumps. I told them that because of my quasi-judicial role I could not become involved in or make representations on their behalf about roads, proposed landfill sites or anything else. Currently, I have no such role as a political representative, I do not make decisions about roads or CPOs. To illustrate the point, I do not make decisions as Minister for the Environment and Local Government on the basis of majority views or controversies. I make decisions on the basis of facts presented to me about a project, having gone through a particular procedure. The thinking is not to avoid decisions. I would not accuse any of my predecessors of that and I hope none of my successors will adopt the position that they are there to avoid decisions or to avoid causing embarrassment to any of their colleagues. Some people do not understand that, in particular, colleagues who make representations. One has to tell them that one is acting as a Minister and cannot accept such representations. I have to make decisions on the basis of the facts presented to me as Minister. All I am attempting to do is ensure that, instead of making that decision myself and having initiated it through a policy, an independent body will make the decision based purely on the facts and not on electoral reasons or anything a public representative or politician might be tempted to take into account. It is a decision which can be black, white or a little grey because, in some cases, I change recommendations made on the basis of things which strike me when making a decision on a project.
I am not trying to avoid decisions - I do not think anybody in my position would try to avoid them. It is for the same reason that colleagues of Deputy Gilmore's in 1977 or whenever, or I think it was actually colleagues of mine, decided it was necessary to have an independent body that would consider the facts and the cases put before them and make an objective decision on a project before them. It was because of those considerations that An Bord Pleanála was set up.
Prior to that the Minister was obliged to make decisions, not on electoral grounds, although some would argue that some Ministers who had the power made decisions on an electoral rather than on a proper planning and development basis, but on the basis of having regard to proper planning and development. As I said, I am not trying to avoid decisions or a situation where a Minister has to make a decision in relation to a project or anything else.
What I am trying to do, as the Deputy rightly said, is streamline the system so that we can make decisions. We have already made the policy decisions, which are clearly laid out. I am accountable for the policy decision to have those five corridors or the decision to spend £4.7 billion on roads. The other matters about which we are talking are technical ones, that is, the route the road takes and how we arrive at that particular route. That is not a policy decision, it is a technical decision. In deference to Deputy Dukes's point, once the technical decision is made, there are consequences in that land has to be taken over, we have to apply for CPOs and so on. These are technical decisions arising from the policy decisions.
I do not mind being answerable for policy. I will stand over the policy decisions I make. In this modern day, it is not fitting for a Minister to talk in terms of making decisions on individual projects which he or she is promoting on a policy basis. This is a separation of policy and the execution of that policy which is accepted at local government and at national levels. I am not trying to avoid decisions.
Deputy Gilmore has not had the experience - Deputy Dukes may have had but not specifically in this area - but he should talk to his colleague, Deputy Howlin, or anybody who has occupied my position heretofore. I have had to make decisions on the Dublin Port tunnel, the airport bypass, the Balbriggan bypass and a range of such projects. The system we operate is as outlined here. A decision is made to construct a dual carriageway and there is widespread consultation about the line. The NRA currently picks about four or five different lines and asks people for their views on them and there is extensive consultation. People, including local public representatives, have the opportunity to try to influence the decision on the five or six lines and on which one will be decided upon. That process is gone through and the final preferred route is chosen.
Once the effort is made to make a motorway order or CPOs and somebody objects, I have to appoint the inspector, as Deputy Dukes said. A public inquiry has to be held and public representatives, the public and every Tom, Dick and Harry has the right to make representations, to put their case and to state what is right or wrong with the plan. All this is done in public through a public inquiry. The inspector I appoint then writes what is, in some cases, a 20 page report - in the case of the southern motorway, the report was about 150 or 160 pages - summarising the arguments on both sides and makes a recommendation. Having gone through all that, he is probably the most knowledgeable person. The promoters of this, the NRA, will see only its side, while the objectors will see only their side. The inspector, however, hears both sides and sum-marises the arguments for me.
It would be quite simple if the Minister could read the inspector's report, decide it contains sufficient information for him and make the decision on the basis of the report. Legally, however, I cannot do that. I have to take into account the evidence adduced at the inquiry. The Minister has to have a knowledge of the EIS and has to duplicate the work and read the transcript and the relevant objections. In the case of the Dublin port tunnel, there were 24 box files of information. I had to have a knowledge of that and make the decision.
Can anybody in this day and age tell me that is an efficient and effective way of doing business? If a public representative comes to me about various aspects of a case thinking it is normal procedure to make representations to the Minister about the case, as a number have after inquiries and so on, I have to tell them straight out that I am sorry and that I can only go by what is in it.
I am not accusing anybody but we should not try to give the impression that this is decided by public opinion or otherwise. The policy decision for which I am accountable is made at the beginning. I find it strange that people - I am talking about the Labour Party - who have what I would regard as a philosophical belief in taking decisions away from the political process, because generally speaking that is the policy the Labour Party advocates——
From where did the Minister get that idea?
——and giving it to independent bodies would argue the opposite in this case. There is consistency in what Deputy Dukes said because I have heard him argue that many of these decisions on regulators and so on should remain in the political system.
We are not running away from or trying to avoid decisions but are trying to streamline a system, which has to deliver our infrastructure over the next ten years, by removing, in some senses, a layer of bureaucracy. The layer happens to be that where the Minister has to go through all of what has already been gone through in great detail by the inspector.
In regard to being answerable to no one, which was, in fairness to him, Deputy Dukes's first point, in any of these decisions, even if the Minister takes the decision, people are answerable at the end of the day. People can go to the courts and have their rights vindicated if they have been trampled upon. This is not a matter of democracy, as such. I am answerable for decisions on policy. That is as it should be. Both Deputies made the point that this might end up being counter productive. That is possible. However, anybody who has made approaches to me in the past on any of these matters on which I must decide will probably say there is a democratic deficit because I do not entertain representations.
This measure is designed to try to streamline and facilitate the delivery of the national development plan. It is my wish, as Minister for the Environment and Local Government, to separate the final decisions on these matter from the Minister who makes the initial decision. Deputy Gilmore has made my point here when he asked what would happen if the board decides not to confirm a CPO for one reason or other. There is an excellent chance that the board will take a more objective view of a project than a Minister promoting it. When I read one of these reports I must set aside my policy role and try to give it due consideration. I believe I have done that in the past. I have even changed recommendations on foot of concerns.
It is not a good argument to say that because the board may decide not to confirm a CPO the Minister's policy is up in smoke. If it acts in that way it shows it is independent and objective. That is what people want. We more often hear the criticism that these procedures and public consultations are a sham because, say, the Minister has decided on the route for a road and the NRA will merely confirm the decision. An independent and objective assessment will make it more likely to generate greater public acceptance.
Deputy Dukes has said on numerous occasions that all these bodies should be made much more accountable to this House, and I agree with him. We should query the basis for their decisions more often. However, that will have to be postponed until another of my pet projects is accepted and there are single seat constituencies where people can become more directly involved.
The Minister is flying kites all over the place.
The delivery of the infrastructure raises a serious point of principle. It is important and fundamental to separate the policy-making role of the Minister from the final, technical decisions on projects. That is fundamental to the national development plan and I ask the Deputies to withdraw their opposition to this proposal.
There is not a single member of the committee, including the Chairman, who would not relieve the Minister of the burden he outlined regarding 24 box files. While he would not get the opportunity to do it now, he should have tried the petitions procedures in the Department of Justice in the old days when 24 box files would only amount to an appetiser.
The Deputy is lucky there are not 24 box files waiting for me.
The Minister believes that this proposed procedure will eliminate a layer of bureaucracy, but it will not. It will be transferred from the Custom House to the headquarters of An Bord Pleanála The number of official interventions in the process will be the same as before.
The representations made by Deputy Gilmore and me are not concerned with whether the Minister listens to representations from politicians or whether An Bord Pleanála listens to them. It is concerned with the possibility of access for interested parties to a debate about the issues that concerns them. If An Bord Pleanála "in its absolute discretion" - I use the words of the Bill - decides not to hold an oral hearing on an issue, the possibilities for the citizens who are affected by any one of these matters to have their views examined and possibly vindicated is reduced. If the board decides an issue by looking into its heart and adopting an internal procedure, access by affected members of the public is reduced. The Minister has not said anything that gives leaves me to understand he has a good reason for reducing that access.
If the Minister was to indicate that section 201 was to be amended to require An Bord Pleanála to hold an oral hearing for every case in the same way that he is currently required to do, I would be much less unhappy about this proposal. While Deputy Gilmore can speak for himself, given the burden of his comments I believe he would be of the same view. We are worried about the reduction of access for the expression and possible vindication of interests. The Minster has not addressed that.
The Minster should forget the bureaucracy. That does not change. He is not streamlining anything here. He is merely requiring An BordPleanála to take over a part of his role.
There is only one of me. There could be six or eight inspectors helping the board.
Sometimes we are very grateful that there is only one of you. There is no institutional streamlining in this. The Minister has relocated the process from one place in the structure to another.
The Minister for the Environment and Local Government is one person. An Bord Pleanála comprises a number of board members and will have a number of inspectors to assist it. Despite my talents, which the Deputy often recognises, I can only read one set of files at a time.
We are dealing with institutions. When I refer to the Minister in this context I refer to him as a corporation soul. That is what it comes down to. The Minister is not making any difference to the level of bureaucracy; he is just changing the locus. He is making a difference, however, to the access for interested parties.
I recognise that it is inconvenient for interested parties to have access. I spent a good share of my morning dealing with an issue where part of the problem was that there had not been enough consultation at an early enough stage. That had to do with access. Finally, things are coming together in that regard and I think it will be okay. However, had there been access for people, unreasonable as they might sound, at an earlier stage in the process, we would not have had to deal with this problem in quite the way that we did. That is the real problem here.
On the bureaucracy end of it, does the Minister intend transferring to An Bord Pleanála all his staff who go through all the box files which accumulate on each of these projects?
Is the Deputy referring to all the staff I have already or those who are due to take up positions?
Those he has already. Presumably there is a substantial staff who are dealing with approval of CPOs and all of this area of activity. Will they be transferred to An Bord Pleanála?
Some of the people who deal with this in the Department will be transferred initially to try to ensure there is a smooth transition. The bulk of the work on these kinds of schemes is done in the first instance by the inspector appointed by me who conducts the inquiry. That is normally a person from outside the Department. He or she could be a retired civil servant. The second person most involved would be the Department's legal adviser, whom I would need for other matters. I cannot transfer him. If he is listening, he would be delighted to know that. The third person most involved is the Minister.
The section which deals with CPOs deals with many other matters also. It has a staff of three or four who would not be employed on CPOs on a full-time basis. The CPOs form part of the work of the section.
I want to raise the other question to which Deputy Dukes referred. The next amendment seeks the deletion of section 201(2), which states that the board, in its absolute discretion, may refuse to hold an oral hearing. Clearly we have differing views on this.
Incidentally, the Minister is wrong in his summary of the Labour Party position regarding the respective roles for independent bodies and for political decision-making.
Is it just Fianna Fáil Ministers whom the Deputy does not want to have involved in decisions?
There may be something to that all right.
He is obviously not going to change his mind on the substantive issue which must be addressed here, but it would improve it considerably if An Bord Pleanála did not have this discretion to refuse oral hearing because that substantially changes the public's access, to which Deputy Dukes referred. If the Minister were to accept my amendment No. 564a, as Deputy Dukes said, it would certainly help us.
I prefer not to do so. There are strong feelings on both sides in this regard. It is probably a reasonable compromise even though I do not know, Chairman, whether we can take the two amendments together or deal with the next amendment now.
Chairman
You may wish to give an indication of your thinking on the matter.
Deputies Gilmore and Dukes have strong feelings about this. I think they accepted that I have strong feelings also. On the basis that the section will not be opposed, I will introduce an amendment.
Would it be possible to introduce the democratic accountability to which the Opposition refers? Could the Minister instruct the board to hold an oral hearing as opposed to the board having to hold oral hearings for every case in which one is demanded? An oral because of one person could hold up the whole process. It is just a suggestion.
It would be an infringement on what I am trying to achieve, which is to get this out of the system itself. On the basis of what Deputies Gilmore and Dukes have said about amendment No. 564 and on the basis that they drop their opposition to the general principle of this, I will accept amendment No. 564a.
Acting Chairman
Does that conclude the debate on this?
It is more a case that we accept that we will not win.
The Deputy has won a major victory.
For the purposes of accuracy, on amendment No. 564a, the deletion of subsection (2) necessarily entails the deletion of subsection (3) also.
We will come to it.
Acting Chairman
The Minister will put together our thoughts on it and address it when we come to it.
Question put and agreed to.
Sections 198 to 200, inclusive, agreed to.
SECTION 201.
I move amendment No. 564a:
In page 178, lines 30 to 34, to delete subsection (2).
The Minister agreed to accept this amendment.
I will accept Deputy Gilmore's amendment, that is amendment No. 564a.
Amendment agreed to.
I move the following additional amendment:
In page 178, lines 35 to 42, to delete subsection (3).
The only proviso I must put on that is that we must check to make sure there is no need for consequential amendments. If there is such a need, I will table them on Report Stage.
Amendment agreed to.
Section 201, as amended, agreed to.
Sections 202 and 203 agreed to.
SECTION 204.
I move amendment No. 565:
In page 180, between lines 33 and 34, to insert the following subsection:
"(5) Where the Minister considers that it to be necessary or expedient that certain functions of the Board (being functions transferred under section 197 or 198) performable in relation to matters of a class or classes that-
(a) are of special strategic, economic or social importance to the State, and
(b) are submitted to the Board for the performance by it of such functions, be performed as expeditiously as is consistent with proper planning and sustainable development, he or she may give a direction to the Board that in the performance of the functions concerned priority be given to matters of the class or classes concerned, and the Board shall comply with such direction.”.
Amendment agreed to.
I move amendment No. 566:
In page 180, subsection (6), line 39, after "may" to insert ", or shall when so directed by the Minister,".
Amendment agreed to.
Section 204, as amended, agreed to.
Sections 205 and 206 agreed to.
SECTION 207.
I move amendment No. 567:
In page 181, line 25, after "or in" to insert "a structure with no roof or a partial, temporary or retractable roof,".
This amendment clarifies that outdoor events which take place in roofless structures, for example, in a sports stadium, are also covered by the licensing provisions of Part XV. It was always the intention that these events would be covered, but this amendment is intended to make sure that no argument could be made that they were not.
Does that include Senator Cassidy?
Amendment agreed to.
I move amendment No. 568:
In page 181, between lines 35 and 36, to insert the following:
"(c) in the case of an urban district, the urban district council.”.
This amendment proposes the insertion of paragraph (c) into section 207 under the definition of a local authority. Since certain urban district councils are planning authorities, why should we not give them the job of granting licences?
Urban district councils were not included as licensing authorities under Part XV because it is intended that the licensing requirements will only apply to major events. County councils and corporations have greater access to the resources, expertise and engineering personnel needed to licence and police these events. This is similar to the system in place under the building regulations. I intend to ensure in the regulations that any affected urban district council will be consulted and that its views will be taken into account when licensing arrangements are being put in place.
In many cases, many of the functions that are transferred relate to both urban and county councils. As a result, there is a great deal of unnecessary duplication and, perhaps, a lack of expertise because of the absence of a critical mass. It is felt that it would be better that the major local authority with responsibility for a particular area should act as the licensing authority for that area. However, these authorities will be obliged to engage in proper consultations with the urban councils.
I am attempting to figure out if I am more friendly towards urban councils than is the Minister. I do not agree with his assertion, but I cannot call to mind any major event of the kind to which he referred or even any minor event of the kind I intend to liberate from these procedures in a later amendment. If the Minister is prepared to accept my later amendment about certain exemptions in urban council areas, I will withdraw this amendment.
Amendment, by leave, withdrawn.
Section 207, as amended, agreed to.
SECTION 208.
Acting Chairman
Amendments Nos. 568a, 569, 570, 570a, 571 and amendment No. 1 to amendment No. 571 are related and may be taken together by agreement.
I move amendment No. 568a:
In page 181, subsection (1), line 37, after "class of event" to insert "(other than an event which the local authority concerned has resolved to exempt from this section by reason of (i) its traditional annual or other periodic nature, or (ii) by reason of its non-profit and community service nature)".
Part XV of the Bill has attracted a great deal of public comment. As I understand it, this section gives the Minister power to make regulations under which it would be necessary for local authorities to licence various public events such as concerts, displays of public entertainment etc. and sets down the various criteria under which this will be done. In that context, a distinction must be drawn between different kinds of events.
It is perfectly understandable that the major concert regularly held in the heart of the Minister's constituency is appropriate to be licensed. On the other hand, the question arises as to whether regular annual events such as the Puck Fair in Killorglin or the October horse fair in Ballinasloe or small community events such as annual fun days organised by the residents of housing estates or by schools should come under the same licensing arrangement. It will be necessary, therefore, to draw a distinction between events.
My amendments propose that such a distinction should be drawn and that discretion should be given to local authorities in that regard. Regular annual events should not necessarily have to be licensed under the regime in question and the discretion relating to whether an event should be licensed should be left to local authorities. In addition, the organisers of small, community based events should not be obliged to apply for a licence.
It is regrettable that too many regulations and requirements apply to community events. There is an annual showjumping event in my constituency each August. I met the organisers earlier in the week and I was informed that the local authority has stated that it can only put up ten posters throughout the entire county to advertise the event. I met representatives of another group which organises an annual bicycle race and which cannot proceed with its event because the local authority will not close the roads. Other groups are encountering similar difficulties. In recent years, a group in my constituency commenced holding an annual festival of sorts on 4 July to celebrate American independence, but this has again run into difficulties due to requirements relating to insurance, the closure of roads etc.
Small community groups are encountering difficulties in obtaining use of local public parks because they are obliged to provide insurance and various assurances etc. in order to indemnify local authorities from the eventuality of being sued or having claims made against them for compensation. That is a great pity because the fun is going out of life. Public events of one kind or other, which are usually held in the summer, where communities host annual street celebrations etc. are disappearing because of the difficulties involved in organising such events. I refer here to the necessity to obtain insurance and various permissions and ensure that these events are properly stewarded. The situation is becoming impossible and people no longer want to hold the type of events to which I refer.
I am concerned that the licensing regime contained in section 207 will add to that. Major events and concerts held at Lansdowne Road, Slane Castle and other places should be licensed. However, the licensing of events and annual festivals which have been part of community or town life for many years should be left to the discretion of local authorities.
I am informed that if this measure had been proposed 30 years ago, the Minister responsible would have been lynched. The way the section is worded would have meant that every pattern dance, parish saint's feast day festival——
No more comely maidens dancing at the crossroads.
As far as I am aware, they never danced in great numbers at the crossroads. Under this section what used to be known in the west as "marquee" dances, which were held irregularly, designed to raise parish funds and strictly controlled by the parish priest, and the events to which I referred earlier would have had to be licensed. Most of those events are no longer held but, as Deputy Gilmore stated, events organised by voluntary and community groups for the purpose allowing people to have some fun or craic are on the increase and they fall within the definition outlined in section 207.
The Minister's original concern - he was correct in this - was to avoid the kind of arguments which took place a number of years ago about events held at Slane Castle, Mondello Park and other places. These venues were being used to hold events that were different from the type for which they were originally intended. After objections were made by local residents, it was discovered that the planning laws appeared to apply to such events and legal proceedings ensued. The Minister rightly took the view that these matters should not be dealt with under the planning laws because they did not involve the erection of permanent structures or permanent uses of land. In my opinion, the licensing provision represents a sensible way of dealing with such matters.
However, when the argument started nobody thought - the Minister even is not thinking - about the types of events Deputy Gilmore and I have mentioned, especially those run by non-commercial organisations. The rationale for requiring a licence for the events in question, which is arguable anyway, is that people are doing something which will make them money but various public, safety, and other implications, such as the nuisance factor, etc., must be taken into account. There should, therefore, be some public overview of them. I am not entirely convinced that is always right but it is right often enough to make it a proper matter of concern. Commercial activities are in question and the commercial side of such events should be examined.
We have not discussed my amendment yet but, essentially, it is the same as Deputy Gilmore's, except that he has decided to be friendly to local authorities, as I was on a previous occasion, and give them some choice in the matter. I agree entirely with his amendment but the commercial nature of these events has given rise to this. If people were running concerts and barely covering their costs we would not be too concerned because we would not be dealing with large numbers of people. However, because large numbers of people and substantial sums of money are involved together with all the other considerations, we are properly going down the licensing route. Deputy Gilmore's amendment or mine would exclude community organisations which do not make money. Parish festivals do not make money for anybody, except those who are referred to as "casual traders" in legislation because people's need for sustenance must still be met. Local traders make money because people are brought into the community but the objective of the event is not to make money.
A way should be found to distinguish between commercial events and non-commercial, community, non-profit events to which Deputy Gilmore and I refer and one of these amendments would do so.
I agree with much of what has been said. It is more proper that much of what the Deputies referred to should be addressed in regulations. Deputy Dukes might add this although regulations in this area are not due before the House for positive acclamation. I am sure the Deputy has already noticed that and has included it in his list. I would be prepared to accept such an approach.
The section is not about commercial or non-commercial events but about public safety. Large crowd pulling events for which there is no charge take place, such as the Live Aid concert and the St. Patrick's Day fireworks display at the Custom House last year, which gave rise to great fear about what might have happened. It was much better organised and marshalled this year. It is important to keep that in mind just as a general background. Deputy Dukes is correct. It is not intended that the normal everyday parish fair or whatever will be on the list of prescribed events. The proper way to decide what are the prescribed events and so on is in regulations to allow certain flexibilities to the local alternatives.
The amendments seek to exempt traditional or non-profit events from the licensing arrangements. Deputy Gilmore's alternative amendment No. 570a and his amendment No. 1 to amendment No. 571 would require the local authority to take into account whether the event was being organised on a commercial or non-commercial basis when deciding on the contribution to be paid both to the local authority or to any consultee, such as the Garda. We are talking about outdoor concerts and other events which attract large numbers of people. Where large numbers are gathered it is important for their safety and the convenience of the people living in the area that these events are managed properly, for example, through proper crowd control and the provision of certain necessary emergency facilities.
That applies equally to non-profit events. I referred previously to the St. Patrick's Day fireworks display as a good example of that. Deputy Gilmore referred to the concerts in Slane, which are commercial events, and the arrangements that are put in place there to try to minimise the inconvenience for the people in the village. However, the arrangements are such that the people in the village are locked into it rather than, as I see it, the people attending the concert being locked out. That is a matter of which approach one wishes to take.
I agree with the Deputies that outdoor festivals are a major part of the Irish scene. They are a huge tourist attraction and can be a major source of revenue for the locality in which they are held. That is something of which local authorities are conscious and all these factors are major considerations for the local authority but I still believe we would be accused of negligence if we expressly excluded such events from the licensing system, particularly in primary legislation. If someone is injured, for example, at a free event which is not properly marshalled, that is where the difficulty arises. It is important that I emphasise that this section refers to large scale concerts and other events and the regulations which we discussed are intended to exempt small scale events.
I hope that my amendment will give some reassurance to the holders of traditional annual events referred to by Deputy Gilmore whereby previously held events in certain venues or localities will be borne in mind by the local authority in considering whether to grant a licence. This amendment has been brought forward partly following discussions with the IRFU to offer some comfort to those who were operating pre-1963. I am afraid the IRFU is still not happy but so be it. It takes the view that because it has planning permission from the courts, it should not be licensed. I do not agree; I think it should be licensed. However, that is an argument for another day.
Amendment No. 571 will permit the payment of contributions to help to cover the expenses of bodies, such as the Garda, which will be consulted on the holding of an event and without which the event could not be held safely. It is my experience, direct and otherwise, that for too long concert developers have relied on Garda assistance to police concerts and ensure they are held safely without being obliged to contribute to the expense of security operations required. The amendment is worded similarly to subsection (4)(i) in the section allowing a contribution to the local authority's costs. Deputy Gilmore's amend-ments would require the local authority to take into account whether the event was being organised on a commercial basis when deciding on the contribution to be paid to the local authority or to any consultee, such as the Garda. I empathise with the amendment but I am not sure the wording is as tight as it might be. I will table my own amendment on this point on Report Stage.
Which amendment?
Amendment No. 571. It is an amendment to my amendment. It is not sufficiently precise to ensure events for which the public do not pay an entrance fee are not required to pay a contribution. It seeks to tighten up that and I accept the principle involved. The safety aspect should not be forgotten and the regulations will deal with the type of events which the Deputies are trying to protect. I undertake that it will be one of the sets of regulations which will have to be affirmed positively.
I am not entirely happy with leaving it to be settled by regulation. There are many unhappy people for whom this is a concern. The people who are mainly the subject of this, namely, organisers of large scale concerts, with the possible exception of the IRFU, are happy with what the Minister proposes. They would be happier dealing with a licensing situation than with the arcane complications of planning law. That is a good move. However, I am probably philosophically more commercially minded than either the Minister or Deputy Gilmore. I would be more attached to the private sector and to commercialism than they are. I object to the proposition the Minister has made that, because a Garda presence is needed or because the local authority will have to do certain things, people will have to pay a contribution.
I have had many rows down through the with people who want to know why the banks do not pay the costs of cash escorts or pay fees to the Garda or the Army. Why do we have the Garda or the Army? They exist to protect people. To say to people that, in addition to paying their taxes, they must also pay a specific fee for when one needs the protection of the Garda seems a bit over the top. That is why the Garda exists. It keeps the streets safe and ensures the law is obeyed. Local authorities exist to ensure that services are run in their areas according to their statutory mandate. If that requires them to occasionally make an additional effort, so be it. It is similar to the Minister and his 24 box files. That is life; it comes with the turf.
I am not persuaded that it is appropriate to ask the organisers of the Slane concert to pay an additional charge for the Garda to do its job. I declare an interest in that one of the organisers is a friend of mine and I hope he will remain so for many years. While it may be inconvenient to muster large numbers of gardaí on a bank holiday weekend when they would prefer to be enjoying the company of their families and friends, it is outrageous to expect organisers of concerts to pay for that. The Garda exists to police such events, and we should not have to pay an additional charge every time we invent a new type of collective activity which will amuse and divert us in the summer or any other time of the year. I am not persuaded that it is an appropriate part of a licence fee.
I accept the Minister's point that, because large numbers of people are gathered together, a certain amount of organisation is required and people should have to pay a licence fee to make clear to them that a burden must be borne. However, I would find it odd that, if Dublin Corporation organised a major fireworks display - the one it organised last Christmas was one of the most appallingly badly organised events I have seen - it would have to pay a substantial licence fee to do that. If commercial organisers were required to pay a licence fee, they would rightly feel aggrieved if the corporation could do it for free. I do not see why they should pay a licence fee to subsidise Dublin Corporation to run a competing event. I am not happy that this loading of additional costs on people for security and Garda services is well founded. I would like the Minister to reconsider some exemptions from this in primary legislation. While we may work hard at framing regulations and we may be conscientious in the manner in which we apply them, matters can slip through which might not have been contemplated in primary legislation.
I would be very surprised if anything slipped through in either exemptions or regulations. I join Deputy Gilmore in taking a philosophically opposed view as regards our mutual acquaintance. I will not presume to call him a friend, although I am on friendly terms with Lord Henry Mountcharles. While he promotes concert for the noble cause of raising sufficient funds to restore and maintain his castle, which is part of our heritage, I do not see why taxpayers should have to pay over and above the odds for that. It is an imposition on the public purse. While acknowledging the generous contributions made to local tidy towns committee, I have seen the expense to which local authorities have been put in preparing for these events and they should be paid by the people who make large profits on these concerts. We will have to agree to disagree on it.
Agreed.
We are coming closer to a full understanding of Deputy Dukes's philosophical position on public services. They are services provided to the private sector to allow it to make money.
That is a very partial definition of the public services.
I am working on it. I reckon that, by the time I finish working on this Bill, I will have a reasonably comprehensive definition.
I am just as concerned about protecting the Deputy from some of the things he might encounter. It is his money that is being moved from bank to bank.
It is not that much of it in my case.
Join the club.
Acting Chairman
Could I draw Members back to the point being discussed?
I am reasonably clear that the Minister intends that small community events will not have to apply for a licence, that, where a community or non-commercial event must apply for a licence, it will not have to pay for the additional 300 gardaí brought in on overtime to police a major event, and that a distinction will be drawn.
One area which is still outstanding is traditional events. I gave two examples of Puck Fair and the Ballinasloe Horse Fair. Will such events, which have been traditional, single town street events, have to apply for a licence?
That is something we will have to discuss when dealing with the regulations. We will have to discuss whether we will prescribe certain events or classes of events.
What about the Rose of Tralee, for example?
A distinction might be made. Although the festival itself might not have to get a licence and even though it is an open-air event with a marquee, because it is a permanent fixture now, it is possible that it might require a licence because large crowds are being brought together.
Is that the structure on which King Puck is erected?
The Deputy should not raise that. We might have to refer to the planning exemption regulations.
The Chairman might not be happy about that.
I withdraw the amendment because the Minister has tabled amendments in this regard.
Yes, amendments Nos. 570 and 571.
Amendment, by leave, withdrawn.
Amendment No. 569 not moved.
Section 208 agreed to
SECTION 209.
I move amendment No. 570:
In page 182, subsection (3)(b), between lines 40 and 41, to insert the following:
"(iv) whether events have previously been held on the land concerned,".
Amendment agreed to.
Amendment No. 570a not moved.
Amendment No. 1 to amendment No. 571 not moved.
I move amendment No. 571:
In page 183, subsection (4), between lines 28 and 29, to insert the following:
"(j) the payment of a financial contribution to a person or body consulted in accordance with subsection (2)(e) of a specified amount or an amount calculated on a specified basis towards the estimated cost to that person or body of measures taken by the person or body in connection with the event;”.
Amendment agreed to.
Section 209, as amended, agreed to.
Sitting suspended at 4.10 p.m. and resumed at 4.30 p.m.
SECTION 210.
Question proposed: "That section 210 stand part of the Bill."
I have an item on the Adjournment, so I will have to leave the committee for about ten or 15 minutes. I apologise to colleagues in advance.
For once in my life I have plenipotentiary powers from the Labour Party to agree anything on their behalf.
They were so philosophically divided earlier that I thought they would never come together.
That is all right. I have been schizophrenic all my life so it makes no difference.
Question put and agreed to.
Sections 211 and 212 agreed to.
SECTION 213.
I move amendment No. 572:
In page 184, subsection (1), lines 36 and 37, to delete "in connection with an event" and substitute "for any purpose connected with this Part".
This amendment extends the powers of entry under the section to include entry in connection with funfairs. It is important to ensure that inspectors and gardaí can inspect a funfair to ensure that any new safety requirements are complied with.
Is there a doubt about that?
It is just to ensure that there is no doubt. The amendment seeks to delete "in connection with an event" and substitute "for any purpose connected with this Part".
I thought they had powers to inspect all these things from the public point of view anyway.
It is safer to have this provision for these particular powers.
Amendment agreed to.
Section 213, as amended, agreed to.
SECTION 214.
Acting Chairman
Amendments Nos. 573 and 574 are related and may be discussed together by agreement.
I move amendment No. 573:
In page 185, lines 23 to 30, to delete subsection (1).
Section 214 intrigues me somewhat. Does it prohibit any legal action by any person against the Minister, the local authority, any officer or employee of a local authority, any person engaged by a local authority or a member of the Garda Síochána, in respect of any matter relating to the holding of events or funfairs? It seems to be a blanket prohibition on the right of somebody to take an action. Let me hasten to add that I have strong views on the degree to which the compensation culture is operating and the readiness with which people are suing. However, I am concerned that section 214 seems to be blocking out the right to take action in all and every circumstance.
When I first saw this section I had the same reservations. However, the section contains two standard limitations of liability. The first subsection limits the liability of the local authority in relation to the performance of its functions under this Part. This type of section is standard in legislation of this type. It is intended to ensure that the State or local authorities do not become a mark for costs in personal injury actions when the real fault for a person getting injured at a concert lies with someone else, namely, the organiser of the concert.
There was a long discussion on this matter in the Seanad debate. As a consequence of those discussions I have brought forward an amendment to the section which based the wording on a more modern provision contained in the Litter Pollution Act, 1997. My amendment clarified that if a local authority performs its licensing functions badly and someone is injured as a consequence, the authority can be sued. That had not been clear previously but it is now clear in this section.
Subsection (2) means that in order to take an action against a concert organiser or a local authority, a person will have to have suffered an injury either to themselves or to their property. They cannot sue without having suffered a loss or injury in some way. Those are two standard provisions. If a local authority is negligent in the discharge of its duty under this section it can be sued. If, however, the concert organisers did not comply with all the stipulations with regard to stewarding, for example, and had only 50 stewards instead of 100, then they could be sued, and not the local authority which stipulated the licence conditions. The subsection is only meant to restrict the liability.
Amendment, by leave, withdrawn.
Amendment No. 574 not moved.
Section 214 agreed to.
Section 215 agreed to.
NEW SECTIONS.
Acting Chairman
Amendments Nos. 575, 579, 580, 581 and 582 are related and may be discussed together by agreement.
I move amendment No. 575:
In page 185, before section 216, to insert the following new section:
"216.-(1) In this section:
'fairground equipment' includes any fairground ride or any similar equipment which is designed to be in motion for entertainment purposes with members of the public on or inside it, any equipment which is designed to be used by members of the public for entertainment purposes either as a slide or for bouncing upon, and any swings, dodgems and other equipment which is designed to be in motion wholly or partly under the control of, or to be put in motion by, a member of the public or any equipment which may be prescribed, in the interests of public safety, for the purposes of this section;
'funfair' means an entertainment where fairground equipment is used.
(2) The organiser of a funfair and the owner of fairground equipment used at a funfair shall take such care as is reasonable in the circumstances, having regard to the care which a person attending the funfair may reasonably be expected to take for his or her own safety, and, if the person is at the event in the company of another person, the extent of the supervision and control the latter person may be expected to exercise over the former person's activities to ensure that persons on the land in connection with the funfair do not suffer injury or damage by reason of any danger arising out of the funfair or associated activities.
(3) It shall be the duty of every person being on land in connection with a funfair to which this section applies to conduct himself or herself in such a way as to ensure that as far as is reasonably practicable any person on the land is not exposed to danger as a consequence of any act or omission of his or hers.
(4) (a) An organiser of a funfair or an owner of fairground equipment shall not make available for use by the public any fairground equipment unless such equipment has a valid certificate of safety in accordance with regulations made under subsection (5),
(b) An organiser of a funfair or owner of fairground equipment who makes available for use the public any fairground equipment otherwise than in accordance with paragraph (a), shall be guilty of an offence.
(5) The Minister shall by regulations provide for such matters of procedure, administration and control as appear to the Minister to be necessary or expedient in relation to applications for and the grant of certificates of safety for fairground equipment.
(6) Without prejudice to the generality of subsection (5), regulations under that subsection may provide for-
(a) the class or classes of persons who are entitled to grant certificates of safety,
(b) the matters to be taken into account in determining applications for safety certificates,
(c) the payment of a prescribed fee for an application for a certificate of safety,
(d) the period of validity of a certificate of safety, and
(e) any class of fairground equipment to be exempt from the provisions of this section.
(7) (a) A person who intends to hold or organise a funfair, other than at a place where the operation of funfair equipment has been authorised by a permission under Part III of this Act or Part IV of the Act of 1963 or is not otherwise an unauthorised use, shall give 2 weeks notice (or such other period of notice as may be prescribed) in writing to the local authority in whose functional area the funfair is to be held,
(b) The notice referred to in paragraph (a) shall be accompanied by a valid certificate of safety for the fairground equipment to be used at the funfair and shall give details of the names of the organiser of the funfair, the owner or owners of the fairground equipment to be used at the funfair and the location and dates on which the funfair is to be held.
(8) (a) Where a local authority has reason to believe that a funfair is taking place, or is likely to take place, which is not in compliance with subsection (4) or (7), the authority may serve a notice on any person it believes to be holding, organising or otherwise materially involved in the organisation of the funfair,
(b) A notice under paragraph (a) may require, as appropriate-
(i) the immediate cessation of any activity or any preparations which are being made in relation to the funfair within a specified time,
(ii) the immediate cessation of the use of any fairground equipment without a valid certificate of safety,
(iii) the removal, within a specified time, of any fairground equipment, temporary buildings or structures, plant, machinery or similar equipment which the authority believes is intended to be used in relation to the funfair, and
(iv) the restoration of the land to its prior condition within a specified time.
(c) A person who is served with a notice under paragraph (a) and who fails to comply with the requirements of the notice shall be guilty of an offence,
(d) Where a person fails to comply with a notice served on the person under this section, the local authority concerned may, through its employees or agents-
(i) give effect to the terms of the notice, and
(ii) where necessary for that purpose, enter on the land concerned, and may recover the expenditure reasonably incurred by it in so doing from the person as a simple contract debt in any court of competent jurisdiction.
(e) A person who obstructs or impedes the local authority in the performance of its functions under paragraph (d) shall be guilty of an offence.”.
This amendment contains a new section 216 which is intended to replace the current wording of section 216 in the Bill. Despite the fact that the entire section is being replaced, only two changes of major significance have been made in this section. The first is that the same requirements to obtain a safety certificate will apply to fairground equipment which is used at permanent funfairs - that is, those with planning permission or pre-1963 authorised use - as well as at those funfairs which travel and which will be subject to the notification requirements under this section. Representations were made to me, in particular by the Showmen's Guild, that it was not fair or appropriate that permanent funfairs were excluded. I accepted that line of argument. Therefore, subsections (4) to (6) now cover the certification of fairground equipment and provide that no fairground equipment may be used at any venue without a valid certificate of safety. The Minister may make regulations regarding applications for, and the granting of, certificates of safety, and specify certain matters such as the period for which a certificate will remain valid. The regulation may also include the requirement that a fee be paid on applying for a licence. This requires a number of consequential amendments to section 222. They are contained in amendments Nos. 579 to 582.
The other major change to this section is that the local authority will, under subsection (8), be able to prevent uncertified equipment being used at any fairground by serving a notice on the person organising the fair. Previously, only the holding of the fair itself could be prevented. Arising from the changes we are making here, a consequential change is also proposed to the Long Title which we will be discussing shortly.
We should celebrate this section. As far as I know, and nobody has told me that I am wrong, this is the only legislation in the world that specifically provides for dodgems. It is great.
Amendment agreed to.
Acting Chairman
Acceptance of this amendment involves the deletion of section 216.
Section 216 deleted.
I move amendment No. 576:
In page 187, before section 217, to insert the following new section:
"217.-(1) Subject to subsection (2), the holding of an event to which this Part applies and works directly or solely relating to the holding of such an event shall not be construed as ’development’ within the meaning of this Act.
(2) (a) Notwithstanding section 208 or 216, the provisions of this Part shall not affect the validity of any planning permission granted under Part IV of the Act of 1963 for the holding of an event or events or for a funfair,
(b) Where a planning permission referred to in paragraph (a) has been granted for the holding of an event or events in respect of land, a licence under this Part shall be required for the holding of any additional event on the land concerned.”.
This amendment, which replaces the existing section 217, is intended to clarify that any venue which was granted planning permission under the 1963 Act to hold concerts, or for holding funfairs, will continue to enjoy the benefits of that permission. To do otherwise might have compensation implications, particularly as any permission involved will only have been granted in the past few years. Subsection (1), therefore, repeats the provision currently in the Bill that events as defined in the Bill are not development and, therefore, will not need planning permission.
Subsection (2)(a) provides that the validity of a permission granted for the holding of events or funfairs is not affected by the provisions of this Part. Subsection (2)(b) is intended to provide that if a planning permission has been granted for a specific number of events at a particular place in a particular period, and it is proposed to hold additional events at that venue, a licence for those events will have to be applied for. In any case, people who are holding events at particular venues on the basis of a pre-1963 authorisation will have to seek a licence. Those who have a licence through the courts system, such as our mutual friend, for instance, will continue to hold it but if they want additional licences, they will have to apply for them.
Acting Chairman
Acceptance of this amendment involves the deletion of section 217. Is it agreed that the new section be inserted?
Amendment agreed to.
Section 217 deleted.
Sections 218 to 221, inclusive, agreed to.
SECTION 222.
I move amendment No. 577:
In page 188, subsection (1), lines 23 to 26, to delete paragraph (b).
This amendment is about the proposed planning fee. We have already discussed it but I would like the amendment put to the committee.
Amendment put and declared lost.
Amendment No. 578 not moved.
I move amendment No. 579:
In page 188, subsection (1), lines 29 to 31, to delete paragraph (d) and substitute the following:
"(d) the payment to local authorities of prescribed fees in relation to applications for grants of licences under section 209 or for certificates of safety under section 216, and”.
Amendment agreed to.
I move amendment No. 580:
In page 188, subsection (3)(a), line 45, after “planning authority” to insert “or local authority”.
Amendment agreed to.
I move amendment No. 581:
In page 189, subsection (4), line 16, after "planning authority" to insert "or local authority".
Amendment agreed to.
I move amendment No. 582:
In page 189, subsection (4), line 20, after "planning authority" to insert "or local authority".
Amendment agreed to.
Section 222, as amended, agreed to.
NEW SECTION.
I move amendment No. 583:
In page 189, before section 223, but in Part XVII, to insert the following new section:
"223.-Where the purchaser of a house for which permission has been granted under this Act can demonstrate that he or she has been prejudiced by a failure on the part of the builder to comply with the terms of the relevant planning permission and the planning authority concerned has failed to enforce the conditions in the manner provided for in this Act, the purchaser shall be entitled to seek redress from the planning authority in any court of competent jurisdiction.".
This amendment is to insert a new section covering redress for house buyers. We have dealt with various questions of enforcement in a previous Part of the Bill and we have dealt with the obligations on developers to carry out development in accordance with the planning permission they are given and with any conditions attached to that. Currently there are cases involving people who bought houses which were built under the terms of previous planning permissions and which do not measure up. This amendment is an attempt to provide a measure of redress for the house buyer. It proposes to provide redress to the aggrieved house purchaser from the planning authority because in a real sense there are many people around the country whose problems come from the fact that planning authorities have not done their job properly - having granted planning permission, in many cases subject to conditions, the planning authority simply fails to ensure that those conditions are met.
In some cases, although it is not relevant to this amendment, the planning authorities themselves have an internal grievance. We all know cases where local authorities have caused houses to be built for themselves and where, for lack of adequate supervision of the actual building and lack of adherence to the proper standards, the local authorities have been led into very serious expense in later years. I am sure the Minister knows of a good number of cases. An entire estate of houses in Tipperary town had to be rebuilt. A large estate in Limerick had to be rebuilt and a substantial number of houses in Newbridge, County Kildare had to be rebuilt because the workmanship was bad from the outset. In some cases the design was bad. When that is taken out of the local authority context and put in the context of private buyers, the problems are not as widespread but they are just as difficult for the individuals concerned. I am sure the Minister, like me and other members, is aware of many cases of people who failed, 15 or 20 years after they bought a house, to get the original builder to rectify in some cases quite fundamental problems with the house.
Where it can be shown that that has been due to a failure of the planning authority to enforce properly the terms of a planning permission or the conditions attached to a planning permission, we should provide a redress for the aggrieved house buyer. In many cases, the original builder is no longer available or has disappeared under the cloak of a different name, and these unfortunate people are left with no redress. I propose we should provide redress here. I suspect the Minister will tell me that this would lead to untold expense, which it might well do. That untold expense is currently being borne by individuals who have been let down badly by a lack of proper supervision in the planning process. I have no realistic expectation that the Minister will accept the amendment but I would like to hear what he has to say about the problem.
The Deputy is very realistic. I do not disagree with the scenario he has painted in relation to estates not being finished, jobs not being done properly and people suffering as a result but we have addressed that in section 164 which deals with the taking over of estates. Once this Bill becomes law, any estates that have not been completed by the builder and that have not been taken over by the local authority, the local authority will be obliged, on request from the residents, to take it over. That means that they will take over the liabilities attached to the fact that the estate is unfinished. That is a fairly severe punishment for the local authorities for not doing their statutory duties.
Precisely because of the problem the Deputy mentioned about builders disappearing and building elsewhere under a different company name, the handy way out all the time would be to sue the local authority and get paid because, generally speaking, the courts find in favour of the person who takes that kind of an action. The problem the Deputy has highlighted is dealt with in section 164 but I reiterate that if somebody suffers a loss because of a builder's failure to comply with planning permission on an individual rather than on an estate basis, the correct person to sue is the builder. When the person is buying the house the solicitor should make sure that the planning permission is complied with before the sale is completed and if the solicitor does not do that, then he is the person who should be sued. Shifting the financial burden of complying with the law to the planning authorities is not something I would agree to other than in the way that we have done it in section 164.
I accept what the Minister said about section 164. I was pleased to see that section in the Bill. It is a long overdue measure, although I know that many local authorities will feel a little aggrieved by it. From that point of view I am satisfied that we have done as much as we can in relation to estates generally. I would have to agree that that seems to be the limit of what can practically be done. It still leaves a lot of individuals in very difficult positions. We can be fairly confident that if the resources are made available to the local authorities, instances of the kind that I have in mind, where individual houses have problems, should become much less common in the future. The Bill as it stands allows local authorities to require things to be done in sequence. I hope this will mean there will be a greater degree of invigilation on the part of developers in the way they carry out their planning permissions. I deplore the fact that it is impossible for many individuals to find a satisfactory solution. Having said that, I will not press the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 584 and 585 are being taken together, by agreement.
I move amendment No. 584:
In page 189, between lines 33 and 34, to insert the following subsection:
"(2) The planning authority shall note on the planning file, the fact that consultations occurred, the date on which they occurred and the participants to the consultations.".
I agree with the intent of Deputy Gilmore's amendment.
I will look at it for Report Stage.
It is basically similar to amendment No. 585. This amendment relates to pre-planning consultations which we discussed previously and with which the Minister agreed. Many people are suspicious about pre-planning consultations although the Minister and members of the committee agreed they are useful. In the interests of transparency - I do not need to draw examples from events in another place today - they should be made as accessible as possible, that is the fact they take place and what transpires at the consultations. Proper pre-planning consultations can help to speed up the planning process and is probably one of the most productive ways of meeting the concerns of people in the construction industry who claim the planning process takes too long. I am happy for the Minister to come back to this on Report Stage.
A combination of the two amendments would be useful. In view of recent events, perhaps we should have a general rule that all representations relating to planning matters should be made in writing.
Or electronically. There is a great deal to be said for that. I am not being gratuitously offensive when I say local authorities should be more punctilious about the way they keep planning files. I am sure the Minister has come across cases, like I have, where a member of the public looks for a planning file and finds there is no confirmation of it and later discovers the document has not yet been placed on the file.
Amendment, by leave, withdrawn.
Amendment No. 585 not moved.
I move amendment No. 586:
In page 189, lines 44 to 51, and in page 190, lines 1 and 2, to delete subsection (4).
This amendment envisages a more public consultation on planning. The type of pre-planning consultations which are most useful are about specific proposed developments, not just those which are twinkles in the eye. I am not sure if the general holding of consultation clinics, as one might call them, of this kind is really what we need.
We talked about pre-planning consultations which are generally about specific projects and are usually fairly detailed. If we are facilitating that in law we should also legally recognise the planning clinics - which are not compulsory. One could leave oneself open to the accusation that one is facilitating builders and developers whereas this provision is for the ordinary Joe Soap who has no access to the planners and wants a house built for his son or daughter and would have to be facilitated on arrival at the local planning office. This is a good way to give people access to planners without unduly disrupting the work of the planning office. Some builders or developers might attend a clinic but it conveys the message that there is access to planners, whether one is a builder or developer or a person making a query.
As the Minister said to me yesterday "The more you explain it, the more you convince me".
Amendment, by leave, withdrawn.
Section 223 agreed to.
Section 224 agreed to.
SECTION 225.
I move amendment No. 587:
In page 190, after line 49, to insert the following subsection:
"(3) Where a large number of representations, submissions or observations are made to the planning authority, as part of an organised campaign, the planning authority shall give notice to the person or persons whom it believes organised the campaign.".
I understand the intention of Deputy Gilmore's amendment. There are occasions when it is obvious who is behind a campaign and they often have a legitimate point of view to put forward. This amendment is designed to ensure the originators of a campaign are informed about decisions made on the issue concerned, in the same way as other interested parties.
Section 225 (2) provides that where a large number of submissions are received as part of an organised campaign, the planning authority can dispense with the need to give individual notice as long as the authority is satisfied that some other means of giving notice can adequately draw the attention of the public to the notice. That is a sufficient provision and I do not see a need for a provision requiring the planning authority to give further notices to the persons which it believes organised the campaign because that information might not be readily available. Section 225 covers the point being made. In addition, people making submissions on specific planning files will now be given statutory recognition.
I am not sure I understand the Minister. Section 225 (2) (b) states that the planning authority may dispense with the requirement where it is not possible to readily ascertain with certainty the full name and address of those who made the representations. Deputy Gilmore is proposing to insert that where it is possible to ascertain the source, that source will be notified.
The amendment does not state that. It states ". . . shall give notice to the person or persons whom it believes organised the campaign".
I will withdraw the amendment so Deputy Gilmore can explain the full flower of his thought on Report Stage.
I know what he is trying to do and I do not have a huge problem with it. Tell Deputy Gilmore we are considering the amendment.
It would be better to encourage those who are serious about making a case to identify themselves. The Minister, like me, has probably received impassioned letters from a small horse breeder about a particular measure. It would have been wonderful to have been able to write back to that person but an address was not provided.
Likewise in the case of the anti-immigration front.
We know who we believe is organising that campaign.
Amendment, by leave, withdrawn.
Section 225 agreed to.
SECTION 226.
I move amendment No. 588:
In page 191, subsection (1)(d), line 19, to delete “sixteen years of age” and substitute “the age of 16 years”.
Amendment agreed to.
Acting Chairman
Amendments Nos. 589 to 591, inclusive, are related and may be taken together.
I move amendment No. 589:
In page 191, subsection (1)(d), line 21, to delete “position” and substitute “place”.
This amendment provides for a simple method for local authorities to serve enforcement notices. They are often served in very urgent situations, for example, if a building is being demolished. The provision will allow an enforcement notice to be served on any person working on the site, for example, or by sticking a notice on the site, and will help to prevent arguments about whether a notice was correctly served in urgent situations. Amendment No. 590 is a consequential amendment to simply change the punctuation. Amendment No. 589 replaces the word "position" and substitutes "place". The parliamentary draftsman was concerned that the word "position" was not clear.
Amendment agreed to.
I move amendment No. 590:
In page 191, subsection (1)(d), line 21, to delete “premises.” and substitute “premises;”.
Amendment agreed to.
I move amendment No. 591:
In page 191, subsection (1), between lines 21 and 22, to insert the following:
"(e) in addition to the methods of service provided for in paragraphs (a), (b), (c) and (d), by delivering it (in the case of an enforcement notice) to some person over the age of 16 years who is employed, or otherwise engaged, in connection with the carrying out of the development to which the notice relates, or by affixing it in a conspicuous place on the land or premises concerned.”.
Amendment agreed to.
Amendment No. 592 not moved.
I move amendment No. 593:
In page 191, between lines 41 and 42, to insert the following subsection:
"(6) A person who, without lawful authority, removes, damages or defaces a notice required to be erected at the site of a development under the permission regulations or by the Board under section 127(4), shall be guilty of an offence.”.
The purpose of this amendment is to provide that it is a summary offence to remove or damage a site notice. Deputies and the Department have received a number of complaints that site notices, particularly for controversial developments, are regularly removed. One company complained it had to replace the site notice every day for the month it was required to be up. We cannot have developers who are trying to comply with the regulations and members of the public who have a right to know what is going on with a site being treated like this. This will make it an offence to remove or damage a site notice.
Amendment agreed to.
Section 226, as amended, agreed to.
Section 227 agreed to.
SECTION 228.
I move amendment No. 594:
In page 193, subsection (11)(a), line 29, to delete “planning” and substitute “local”.
This amendment provides that authorised persons for entry to land can be appointed by local authorities and not just by planning authorities. This is to allow the provision to be used by local authorities in all their guises, for example, as housing or road authorities etc. I also want to move a further amendment in that regard.
Amendment agreed to.
I move the following additional amendment:
In page 193, line 35, before "authority" to delete "planning" and substitute "local".
This is a consequential amendment.
Amendment agreed to.
Section 228, as amended, agreed to.
Section 229 agreed to.
SECTION 230.
Acting Chairman
Amendments Nos. 596 to 607, inclusive, are related and may be taken together with amendment No. 595 by agreement.
I move amendment No. 595:
In page 194, lines 40 to 50, to delete subsection (1) and substitute the following:
"(1) Subject to subsection (2), a person shall not erect, construct, place or maintain-
(a) a vending machine,
(b) a town or landscape map for indicating directions or places,
(c) a hoarding, fence or scaffold,
(d) an advertisement structure,
(e) a cable, wire or pipeline,
(f) a telephone kiosk or pedestal, or
(g) any other appliance, apparatus or structure, which may be prescribed as requiring a licence under this section,
on, under, over or along a public road save in accordance with a licence granted by a planning authority under this section.
(2) This section shall not apply to the following:
(a) an appliance, apparatus or structure which is authorised in accordance with a planning permission granted under Part III;
(b) a temporary hoarding, fence or scaffold erected in accordance with a condition of planning permission granted under Part III;
(c) the erection, construction, placing or maintenance under a public road of a cable, wire or pipeline by a statutory undertaker.”.
These amendments are to strengthen the existing licensing powers of local authorities to control the erection of appliances, hoardings, etc. on public roads so as to avoid clutter, public nuisance and inappropriate development. It is also proposed to require licences for the erection of telephone kiosks and pedestals on the public road, in the interests of proper planning and sustainable development. The licences are currently referred to as "section 89 licences" under the 1963 Act. The amended section provides a better framework for ensuring that streets do not become too cluttered.
How far will this go? I agree with the Minister's intent. One does not have to go very far to see streets that are very cluttered. Sometimes, one would be tempted to think the smaller the conurbation or built up area, the greater the amount of clutter. We sometimes find telephone kiosks in the oddest of places. I know the Minister is also concerned about this. There is an enormous job to be done to get some order on the placing of these various obstacles to assist people with physical handicaps. I find, being a good bit over six feet tall, that some road signs are lethal. Politicians develop the habit of ducking, but one should not have to do it when one is just walking down the street. There is a great deal to be looked at in that regard. I am quite in favour of this general measure. People seem to feel they are entitled to put an advertising structure anywhere that takes their fancy and we should all object to that.
This is probably an unfair question, because it is really up to each local authority, but how far does the Minister think this will be taken in relation to vending machines, for example? Some of us feel very vulnerable in that regard. Under another piece of legislation, it will be required to place vending machines where people in authority can keep them under supervision, so that minors cannot buy cigarettes from them.
I am told that if something is brought in another code in relation to a particular type of vending machine, that other code will take precedence.
That is only inside buildings, whereas this provision is about the erection of vending machines on streets or public places.
There are not that many of the type of vending machines we are talking about. They include chewing gum machines, soft drink machines and so on. The local authority, in considering an application for a licence under amendment No. 600, will have to take into account the proper planning and sustainable development of the area, any relevant provisions of the development plan or a local area plan and the number and location of existing appliances, apparatuses or structures under, over or along a public road. They will also have to consider the convenience and safety of road users, including pedestrians. That is what must be considered before a local authority issues a licence.
Does this include moveable vending machines, such as the bubble gum vending machines one sees outside shops?
Yes.
Amendment agreed to.
I move amendment No. 596:
In page 195, subsection (2), line 3, after "appliance" to insert ", apparatus".
Amendment agreed to.
I move amendment No. 597:
In page 195, subsection (3), line 7, after "specify" to insert ", including conditions in relation to location and design,".
Amendment agreed to.
I move amendment No. 598:
In page 195, subsection (3), line 10, after "appliance" to insert ", apparatus".
Amendment agreed to.
I move amendment No. 599:
In page 195, subsection (3), line 12, after "appliance" to insert ", apparatus".
Amendment agreed to.
I move amendment No. 600:
In page 195, between lines 13 and 14, to insert the following subsection:
"(4) In considering an application for a licence under this section a planning authority, or the Board on appeal, shall have regard to-
(a) the proper planning and sustainable development of the area,
(b) any relevant provisions of the development plan, or a local area plan,
(c) the number and location of existing appliances, apparatuses or structures on, under, over or along the public road, and
(d) the convenience and safety of road users including pedestrians.”.
Amendment agreed to.
I move amendment No. 601:
In page 195, subsection (5), lines 26 to 28, to delete paragraph (b).
Amendment agreed to.
I move amendment No. 602:
In page 195, subsection (6), line 31, after "appliance" to insert ", apparatus".
Amendment agreed to.
I move amendment No. 603:
In page 195, subsection (7)(a), line 33, after “appliance” to insert “, apparatus”.
Amendment agreed to.
I move amendment No. 604:
In page 195, subsection (7)(b), line 37, after “appliance” to insert “, apparatus”.
Amendment agreed to.
I move amendment No. 605:
In page 195, subsection (8)(a), line 46, after “appliance” to insert “, apparatus”.
Amendment agreed to.
I move amendment No. 606:
In page 196, subsection (9), line 9, after "appliance" to insert ", apparatus".
Amendment agreed to.
I move amendment No. 607:
In page 196, subsection (9), line 11, after "appliance" to insert ", apparatus".
Amendment agreed to.
Section 230, as amended, agreed to.
SECTION 231.
I move amendment No. 608:
In page 196, subsection (4), line 31, to delete "If the Minister" and substitute "Without prejudice to the powers of the Minister under the Local Government Act, 1941, if the Minister".
The Local Government Act, 1941, contains general powers for the Minister to appoint inspectors to hold inquiries into the conduct of local authorities and to appoint commissioners to take over the role of the elected members. This amendment is intended to clarify that the provisions of section 231 of the Bill operate independently of the 1941 Act.
Acting Chairman
Is the amendment agreed?
Always avoid prejudice to the Minister.
Amendment agreed to.
Amendment No. 609 not moved.
Section 231, as amended, agreed to.
SECTION 232.
Acting Chairman
Amendments Nos. 610 and 611 are related and are to be taken together.
I move amendment No. 610:
In page 197, paragraph (a), to delete lines 16 to 45 and substitute the following:
" '(1) Notwithstanding section 34 of the Planning and Development Act, 2000, or any other provision of that Act, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, where it decides to grant a permission under section 34 of that Act in respect of any development comprising the activity or for the purposes of the activity, subject the permission to conditions which are for the purposes of-
(a) controlling emissions from the operation of the activity, including the prevention, limitation, elimination, abatement or reduction of those emissions, or
(b) controlling emissions related to or following the cessation of the operation of the activity.
(1A) Where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála may, in respect of any development comprising the activity or for the purposes of the activity, decide to refuse a grant of permission under section 34 of the Planning and Development Act, 2000, where the authority or An Bord Pleanála considers that the development, notwithstanding the licensing of the activity under this Part, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development is or will be situate.
(1B)(a) Before making a decision in respect of a development comprising or for the purposes of an activity, a planning authority or An Bord Pleanála may request the Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the authority or the Board in relation to the development, including in relation to any environmental impact statement submitted.
(b) When making its decision, the authority or An Bord Pleanála, as the case may be, shall have regard to the observations, if any, received from the Agency within the period specified under paragraph (a).
(1C) The planning authority or An Bord Pleanála may, at any time after the expiration of the period specified by the authority or An Bord Pleanála under subsection (1B)(a) for making observations, make its decision on the application or appeal.
(1D) The Minister may make regulations making such incidental, consequential, or supplementary provision as may appear to him or her to be necessary or proper to give full effect to any of the provisions of this section.
(1E) Without prejudice to the generality of subsection (1D), regulations made under this section may provide for matters of procedure in relation to the request for or the making of observations from or by the Agency under this section and related matters.
(1F) The making of observations by the Agency under this section shall not prejudice any other function of the Agency under this Act.'.".
The main purpose of these amendments is to restate with further clarity the interface between planning and development considerations, which are a matter for the planning authority and An Bord Pleanála and integrated pollution control licensing and waste licensing matters which are a function of the EPA. While the two sections in question are being replaced in total, no substantive changes are being made to the sections as originally contained in the Bill. The redrafted subsection (1) in section 232 and subsection (3) of section 233 clarify that conditions imposed on a planning permission shall not relate to controlling emissions from the operation of an activity. This is the function of the EPA. It also explicitly refers to cessation of an operation. IPC and waste licences can impose ongoing controls which relate to the protection of the environment when an activity ceases, for example control over a tailings pond for mining operations. The amendment provides two additional subsections dealing with consultation with a planning authority and/or An Bord Pleanála from the EPA in the case of a development comprising or for the purpose of an activity for which an IPC or waste licence is required from the EPA.
Consultation is optional but it relates to subsections (1) and (1)(a) of section 232 as opposed to subsection (1)(a) as originally drafted. Where the EPA makes observations these must be considered by the planning authority and the board. However, a decision can be made when the agency does not respond within the time limit provided for making observations. The corresponding changes are made to section 233.
Subsection (1)(f) of section 232 and subsection (3)(f) of section 233 provide that the provision by the EPA of observations to a planning authority shall not prejudice the agency in any other of its functions. In particular the agency will have to decide separately on licensing the operation of any development to which this section refers. Other minor amendments delete the references to approval as this is no longer provided for in the Bill.
There is reference in both of these amendments to controlling emissions. What is included in the definition of emissions for these purposes?
Noise, air, water and anything going into the atmosphere generally as well as waste.
Any kind of waste?
Yes.
And effluent?
Yes.
Effluent is included.
Amendment agreed to.
Section 232, as amended, agreed to.
SECTION 233.
I move amendment No. 611:
In page 198, paragraph (a), to delete lines 5 to 33 and substitute the following:
" '(3) Notwithstanding section 34 of the Planning and Development Act, 2000, or any other provision of that Act, where a waste licence has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, where it decides to grant a permission under section 34 of that Act in respect of any development comprising the activity or for the purposes of the activity, subject the permission to conditions which are for the purposes of-
(a) controlling emissions from the operation of the activity, including the prevention, limitation, elimination, abatement or reduction of those emissions, or
(b) controlling emissions related to or following the cessation of the operation of the activity.
(3A) Where a waste licence has been granted under this Part or is or will be required in relation to an activity, a planning authority or An Bord Pleanála may, in respect of any development comprising the activity or for the purposes of the activity, decide to refuse a grant of permission under section 34 of the Planning and Development Act, 2000, where the authority or An Bord Pleanála considers that the development, notwithstanding the licensing of the activity under this Part, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development is or will be situate.
(3B)(a) Before making a decision in respect of a development comprising or for the purposes of an activity, a planning authority or An Bord Pleanála may request the Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the authority or the Board in relation to the development, including in relation to any environmental impact statement submitted.
(b) When making its decision, the authority or An Bord Pleanála, as the case may be, shall have regard to the observations, if any, received from the Agency within the period specified under paragraph (a).
(3C) The planning authority or An Bord Pleanála may, at any time after the expiration of the period specified by the authority or An Bord Pleanála under subsection (3B)(a) for making observations, make its decision on the application or appeal.
(3D) The Minister may make regulations making such incidental, consequential, or supplementary provision as may appear to him or her to be necessary or proper to give full effect to any of the provisions of this section.
(3E) Without prejudice to the generality of subsection (3D), regulations made under this section may provide for matters of procedure in relation to the request for or the making of observations from or by the Agency under this section and related matters.
(3F) The making of observations by the Agency under this section shall not prejudice any other function of the Agency under this Act.'.".
Amendment agreed to.
Section 233, as amended, agreed to.
Sections 234 to 236, inclusive, agreed to.
NEW SECTION.
I move amendment No. 612:
In page 199, before section 237, to insert the following new section:
237.-(1) The owner or operator of a quarry to which this section applies shall, not later than one year from the coming into operation of this section, provide to the planning authority, in whose functional area the quarry is situated, information relating to the operation of the quarry at the commencement of this section, and on receipt of such information the planning authority shall, in accordance with section 7, enter it in the register.
(2) Without prejudice to the generality of subsection (1), information provided under that subsection shall specify the following:
(a) the area of the quarry, including the extracted area delineated on a map,
(b) the material being extracted and processed (if at all),
(c) the volume of material extracted during the 12 months immediately preceding the date of the provision of the information and the rate of extraction per day in respect of that period,
(d) the hours of the day during which the quarry is in operation,
(e) the traffic generated by the operation of the quarry including the type and frequency of vehicles entering and leaving the quarry,
(f) the levels of noise and dust generated by the operations in the quarry,
(g) any material changes in the particulars referred to in paragraphs (a) to (f) during the period commencing on the commencement of this section and the date on which the information is provided,
(h) whether-
(i) planning permission under Part IV of the Act of 1963 was granted in respect of the quarry and if so, the conditions, if any, to which the permission is subject, or
(ii) the operation of the quarry commenced before 1 October 1964, and
(i) such other matters in relation to the operations of the quarry as may be prescribed.
(3) A planning authority may require a person who has submitted information in accordance with this section to submit such further information as it may specify, within such period as it may specify, relating to the operation of the quarry concerned and, on receipt thereof, the planning authority shall enter the information in the register.
(4)(a) A planning authority shall, not later than 6 months from the registration of a quarry in accordance with this section, publish notice of the registration in one or more newspapers circulating in the area within which the quarry is situated.
(b) A notice under paragraph (a) shall state-
(i) that the quarry has been registered in accordance with this section,
(ii) where planning permission has been granted in respect of the quarry, that it has been so granted and whether the planning authority is considering restating, modifying or adding to conditions attached to the planning permission in accordance with subsection (6)(a)(ii), or
(iii) where planning permission has not been granted in respect of the quarry, that it has not been so granted and whether the planning authority is considering-
(I) imposing conditions on the operation of the quarry in accordance with section (6)(a)(ii), or
(II) requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with subsection (7),
(iv) the place or places and times at which the register may be inspected,
(v) that submissions or observations regarding the operation of the quarry may be made to the planning authority within 4 weeks from the date of publication of the notice.
(c) A notice under this subsection may relate to one or more quarries registered in accordance with this section.
(5)(a) Where a planning authority proposes to-
(i) impose, restate, modify or add to conditions on the operation of the quarry under this section, or
(ii) require, under subsection (7), a planning application to be made and an environmental impact statement to be submitted in respect of the quarry in accordance with this section, it shall, as soon as may be after the expiration of the period for making observations or submissions pursuant to a notice under subsection (4)(b), serve notice of its proposals on the owner or operator of the quarry.
(b) A notice referred to in paragraph (a), shall state-
(i) the reasons for the proposals, and
(ii) that submissions or observations regarding the proposals may be made by the owner or operator of the quarry to the planning authority within such period as may be specified in the notice, being not less than 6 weeks from the service of the notice.
(c) Submissions or observations made pursuant to a notice under paragraph (b) shall be taken into consideration by a planning authority when performing its functions under subsection (6) or (7).
(6)(a) Not later than 2 years from the registration of a quarry under this section, a planning authority may, in the interests of proper planning and sustainable development, and having regard to the development plan and submissions or observations (if any) made pursuant to a notice under subsection (4) or (5)-
(i) in relation to a quarry which commenced operation before 1 October 1964, impose conditions on the operation of that quarry, or
(ii) in relation to a quarry in respect of which planning permission was granted under Part IV of the Act of 1963 restate, modify or add to conditions imposed on the operation of that quarry,
and the owner and operator of the quarry concerned shall as soon as may be thereafter be notified in writing thereof.
(b) Where in relation to a grant of planning permission conditions have been restated, modified or added in accordance with paragraph (a) , the planning permission shall be deemed, for the purposes of this Act, to have been granted under section 34, and any condition so restated, modified or added shall have effect as if imposed under section 34.
(c) Notwithstanding paragraph (a), where an integrated pollution control licence has been granted in relation to a quarry, a planning authority or the Board on appeal shall not restate, modify, add to or impose conditions under this subsection relating to-
(i) the control (including the prevention, limitation, elimination, abatement or reduction) of emissions from the quarry, or
(ii) the control of emissions related to or following the cessation of the operation of the quarry.
(7)(a) Where the continued operation of a quarry-
(i) (I) the extracted area of which is greater than 5 hectares, or
(II) that is situated on a European site or any other area prescribed for the purpose of section 10(2)(c), or land to which an order under section 15,16 or 17 of the Wildlife Act, 1976, applies, and
(ii) that commenced operation before 1 October 1964, would be likely to have significant effects on the environment (having regard to any selection criteria prescribed by the Minister under section 160(2)(e)) a planning authority shall not impose conditions on the operation of a quarry under subsection (6), but shall, not later than one year after the date of the registration of the quarry, require, by notice in writing, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority not later than 6 months from the date of service of the notice, or such other period as may be agreed with the planning authority.
(b) Section 159(1) shall not apply to development to which an application made pursuant to a requirement under paragraph (a) applies.
(c) A planning authority, or the Board on appeal, shall, in considering an application for planning permission made pursuant to a requirement under paragraph (a), have regard to the existing use of the land as a quarry.
(8)(a) Where, in relation to a quarry for which permission was granted under Part IV of the Act of 1963, a planning authority adds or modifies conditions under this section that are more restrictive than existing conditions imposed in relation to that permission, the owner or operator of the quarry may claim compensation under section 181 and references in that section to compliance with conditions on the continuance of any use of land consequent upon a notice under section 45 shall be construed as including references to compliance with conditions so added or modified, save that no such claim may be made in respect of any condition relating to a matter specified in paragraph (a), (b) or (c) of section 34(4), or in respect of a condition relating to the prevention or limitation of damage to, or degradation of, the environment whether on or outside the land on which the quarry is situated.
(b) Where, in relation to a quarry to which subsection (7) applies, a planning authority, or the Board on appeal, refuses permission for development under section 34 or grants permission thereunder subject to conditions on the operation of the quarry, the owner or operator of the quarry shall be entitled to claim compensation under section 181 and for that purpose the reference in subsection (1) of that section to a notice under section 45 shall be construed as a reference to a decision under section 34 and the reference in section 181(2) to section 45 shall be construed as a reference to section 34 save that no such claim may be made in respect of any condition relating to a matter specified in paragraph (a), (b) or (c) of section 34, or in respect of a condition relating to the prevention or limitation of damage to, or degradation of, the environment whether on or outside the land on which the quarry is situated.
(9)(a) A person who provides information to a planning authority in accordance with subsection (1) or in compliance with a requirement under subsection (3) may appeal a decision of the planning authority to impose, restate, add to or modify conditions in accordance with subsection (6) to the Board within 4 weeks from the date of receipt of notification by the authority of those conditions.
(b) The Board may at the determination of an appeal under paragraph (a) confirm with or without modifications the decision of the planning authority or annul that decision.
(10)(a) A quarry to which this section applies in respect of which the owner or operator fails to provide information in relation to the operations of the quarry in accordance with subsection (1) or in accordance with a requirement under subsection (3) shall be unauthorised development.
(b) Any quarry in respect of which a notification under subsection (7) applies shall, unless a planning application in respect of the quarry is submitted to the planning authority within the period referred to in that subsection, be unauthorised development.
(11) This section shall apply to-
(a) a quarry in respect of which planning permission under Part IV of the Act of 1963 was granted more than 5 years before the coming into operation of this section, and
(b) any other quarry in operation on or after the coming into operation of this section, being a quarry in respect of which planning permission was not granted under that Part.
(12) In this section-
'operator' means a person who at all material times is in charge of the carrying on of quarrying activities at a quarry or under whose direction such activities are carried out;
'quarry' has the meaning assigned to it by section 3 of the Minerals and Quarries Act, 1965.".
This amendment is being put forward in light of widespread public dissatisfaction with unregulated quarries, an issue which has been highlighted in the debate on this Bill here and in the Seanad. I recognise the importance of the quarrying industry and it is all the more important therefore that it is properly regulated in a transparent manner so that operators and the general public know the standards to be complied with. The amendment takes a balanced approach to the protection of the environment and sustained economic development and should not adversely impact on the supply of aggregate to the construction industry.
The amendment provides for all quarries over five years old to register with the planning authority, giving details of the extent of the quarry operation. Planning authorities will be entitled to impose environmental conditions on the operation of registered quarries. Where conditions on the operation of the quarry extend beyond measures required to protect the environment, compensation would be payable by the local authority. In the case of quarries which have not obtained planning permission - those from before 1964 - a planning authority may decide that a quarry requires an environmental impact assessment where the planning authority judges that the continued operation of the quarry would be likely to have significant effects on the environment. In this case, an application for planning permission would have to be made to the planning authority. This requirement would not be necessary in every case and where, on foot of an application, planning permission was refused, compensation would be payable. A quarry operator would be able to appeal any decision of the planning authority to An Bord Pleanála.
The Minister said that planning authorities will now be entitled to impose conditions on the continued operation of quarries to protect the environment.
Environmental conditions.
Environmental conditions. However, where the planning authority imposes measures or conditions that go beyond measures to protect the environment, compensation is payable. What kinds of conditions are envisaged here? What kinds of conditions would go beyond measures to protect the environment?
If the authorities imposed a condition, for example, relating to the physical extent to which the quarry could operate or the hours in which it operated, strictly speaking, those are not environmental conditions by the definition, but they are there for environmental reasons, dealing with noise, for example.
Are we talking here about the pre-1963 cases?
We are talking about all cases - all quarries over five years old.
So we are bringing the pre-1963 cases into an area of regulation from which they have apparently been exempt until now.
Yes.
For post-1963 cases, where by definition planning permission was needed, the Minister is proposing we would review that where it dates back further than five years. For those cases the planning authority would consider imposing conditions about the physical extent of the quarry only where the area currently being used is less than the area contemplated in the original planning permission, as I understand it. For example, if there were a site of 60 acres and a post-1963 planning permission for quarrying applied to the site and 30 acres were now quarried, would the planning authority now be in a position to put in a compensation condition to the effect, for example, that the physical extent of the quarry area could not now go past 40 acres?
Yes. It would be compensation and they could put in that condition.
My understanding is that in relation to a quarrying operation, the planning permission must state the area in which the quarrying can take place.
The Deputy's interpretation is correct. Once registered, the planning authority would be entitled to impose an environmental condition, for example, to use only 40 acres. However, I do not envisage that happening in many places. If the planning permission was reasonably old, dating perhaps from a time when we were not as careful about things such as eskers, national heritage areas or the like, and it was discovered that the area should be a national heritage area or whatever, the local authority would have the power to restrict it to 40 acres and pay compensation to the quarry owner for imposing that environmental condition.
There is a feeling in the industry that this amendment would not be introduced without a purpose and, all other things being equal, its effect would be to restrict quarrying operations below what they might have been. The general expectation is that it will restrict the further exploitation of existing quarries and, perhaps, close down some existing operations.
People in the industry will say that given the boom in construction, if one quarry is closed another will have to open elsewhere. With the best will in the world and doing all we can in terms of recycling construction waste, we will still need to replace most of the quarries that are closed down. I do not believe we can replace any major operation in the near future through recycling construction waste. Will the last eight be as bad as the first in that case? Are we likely to see new quarries being opened because of this and, if so, is that a good thing?
It is not the intention to restrict development of quarries per se. The industry is arguing both sides of this argument. The only reason a quarry might be restricted is where there is an environmental problem. It is not in the Government’s interest to have a large scale closure of quarries; it is in our interest to have quarries open and operational. In the interest of sustainable development, however, it is necessary to have environmental controls on quarries.
The fact that the legislation provides, in cases where conditions are imposed which go beyond environmental considerations, that compensation be paid by the local authorities will ensure that any measures imposed will be reasonable. Local authorities are not known for rushing to do things which result in compensation being payable. It is important to allay fears in that regard.
The Irish Concrete Federation has had extensive discussions with officials in the Department. It should be acknowledged that, without any prompting from anybody, the federation put its own environmental code in place. The problem of pre-1963 quarries, which this measure is designed to tackle, was raised by the federation and quarry owners with me shortly after my appointment as Minister. They were seriously concerned that although they were complying with the good environmental code they had drafted, there were, to use their words, "cowboy operators" who were opening quarries which had been closed for decades and claiming they were pre-1963 quarries. They were not abiding by environmental conditions or subject to any restrictions. It was, in effect, unfair competition.
That was our starting point. We listened to that argument and to the broader argument that occurred during the Seanad debate in relation to the environmental depradations being caused in some areas by irresponsible quarry owners. I have also had some discussions with individual quarry owners as constituents. There has not been a complete meeting of minds on this issue but we have negotiated to a position where most of the major fears of the industry are being met without compromising the significant environmental benefit of having this section in the Bill.
There might be further refinements to this on Report Stage.
The Minister is providing, in relation to pre-1963 operations, that the planning authorities may, if they consider it appropriate, require an environmental impact assessment. If the assessment shows there is a significant effect on the environment, the operator will be obliged either to terminate the operation or to apply for planning permission. Is that correct?
If it is likely to be a significant effect, they must apply for planning permission. It is judged at that stage.
At what stage?
If the EIA shows that it is having a significant effect.
I am trying to understand the process. Where the planning authority arrives at the view that a pre-1963 operation may be having a significant impact on the environment, it informs the operator that he or she must carry out an environmental impact assessment. That is then provided to the authority. If the EIA——
No. The authority will inform the operator that it believes the operation is having a significant environmental impact and tell him he is now within the planning system. He will have to apply for the planning permission and submit an EIA.
So the planning authority decides that it may require it to be within the planning system and that judgment is finally made as a decision on the planning application?
Yes.
The planning application must be accompanied by an environmental impact assessment?
Yes.
In the event that the planning application is refused, compensation is payable?
Yes.
I wish to raise a few more points. The Minister is probably sick of hearing them.
No. It is an important matter. We have had a good deal of discussion but it is as well to tease it out.
Under the proposed new subsection (2)(c), the planning authority may require certain types of information from the operator. Subsection (2)(c) states:
The volume of material extracted during the 12 months immediately preceding the date of the provision of the information and the rate of extraction per day in respect of that period.
In the context of subsection (2) the operators tell me they do not have problems with maps or a description of the materials being extracted, but they have serious problems regarding tonnages as that is commercially sensitive information. Does the Minister have a view on this?
I have no doubt it is sensitive commercial information. Fortunately - I nearly said unfortunately - our planning system is supposed to be very open and transparent and everything on a planning file is public information. I have agreed to look at the issue on Report Stage. Local authorities will have to have information against which to measure whether intensification, which requires planning permission, is taking place. I do not know if there is a way around making the information public. In other legislation sensitive commercial information has been excluded, but that has never been done in planning legislation. We will try to find a way around it, but I cannot give guarantees.
Would a person who applied for a planning application for a new quarry be required to give an indication of the proposed level or rate of extraction?
In general, yes, they would have to give tonnages, etc. If there was an EIA that information would be known. The difference in this case is that one would be talking in terms of projected tonnages, etc. The reason the ICF is unhappy is that it concerns what is currently taking place.
I am trying to see where the balance lies between current or new operations and operations which are pre-1963. I think it is true to say that typically a planning permission for a quarrying operation will either be for a limited period or have built into it a provision for a periodic review. Also, while it may vary from planning authority to planning authority, it would not be unusual for the conditions of the planning application to specify an upper limit on the rate of extraction.
It is probably not unusual. I am not sure how often it happens, but it is permissible to include such a condition in planning permission.
I have come across many cases of permission being given for extraction of sand or gravel, with a validity period of five years to be followed by a review with the presumption that it can be renewed. The objective of the planning authority in such cases is to ensure it can control the scale of the operation.
Sometimes conditions are imposed regarding the number of lorries.
The point concerns commercially sensitive information which is already in the planning registers about existing operations and which will be in the registers about new operations.
Yes. I do not know how sensitive it is. There would probably be more validity in an argument about sensitive commercial information if we were asking the price.
Has the Minister given consideration to another suggestion put to me regarding pre-1963 operations, namely, that some consideration be given to the extent of subsequent development and the way the operation has grown over the period, and that if it had not developed past a certain level we would not impose these requirements on them?
I have not given consideration to that. Our major concern and the basis for what we are doing are environmental considerations. In some senses the extent of the operation has some effect environmentally, but even a badly run small scale operation can have serious environmental consequences.
I have concluded my questions, but am not too much wiser - I do not mean any disrespect to the Minister in saying that.
Amendment agreed to.
Acting Chairman
A new amendment No. 613 was circulated which is in substitution for amendment No. 613 on the principal list of amendments circulated on 11 April.
I move amendment No. 613:
In page 200, lines 4 to 11, to delete subsection (4) and substitute the following:
"(4) Every regulation made under paragraph (a) of subsection (2) of section 4, subsection (4) of section 19, subsection (5) of section 21, subsection (5) of section 25, section 33, section 42, paragraph (b) of subsection (5) of section 80, section 85, subsection (4) of section 111, section 127, section 160, subsection (2) of section 163, section 165, subsection (4) of section 204, section 209, subsection (1) of section 222, paragraph (b) of section 233, and section 244 shall be laid before each House of the Oireachtas and shall not come into effect until it has been approved by a resolution of each House.
(5) Every regulation made under paragraph (b) of subsection (5) of section 10, paragraph (b) of subsection (6) of section 19, subsection (5) of section 25, subsection (9) of section 90, subsection (7) of section 91, paragraph (c) of subsection (2) of section 157, subsection (1) of section 158, subsection (10) of section 159, section 169, subsection (7) of section 216 and subsection (2) of section 224 shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”.
The purpose of the amendment is to specify which regulations made under the Bill should come before the Houses of the Oireachtas and require a positive affirmation. I know the Minister will agree on some and not others. The only regulations specifically required to be laid before the Houses and agreed are those in section 85(1)(a) and (b). There are one or two other regulations in other sections, but by and large there is no such specification.
In drafting the amendment I have tried to examine the regulations which deal with matters of importance. I will be pleasantly surprised if the Minister agrees to accept all the regulations, but will not be surprised if he has a shorter list for positive affirmation. I will be happy if he undertakes to examine the issue and review it for Report Stage.
I will certainly do that with as open a mind as possible. We have had a mutual admiration society in relation to resolutions for some time. If the Deputy withdraws the amendment we will consider it for Report Stage.
Thank you.
Amendment, by leave, withdrawn.
Section 237, as amended, agreed to.
Sections 238 and 239 agreed to.
SECTION 240.
Acting Chairman
Amendment No. 615 is related to amendment No. 614, and amendment No. 616 is consequential, and I propose we take these amendments together by agreement.
I move amendment No. 614:
In page 200, subsection (1), line 19, after "(1)" to insert "(a)”.
Amendment No. 616 provides a saver for regulations, etc., made under the repealed Planning Acts and will facilitate the early entry into force of the Act without the need to have a full set of new regulations. The particular provision is based on section 124(1) of the Building Societies Act, 1989. The amendment provides for the same thing as Deputy Dukes's amendment. Amendment No. 614 is a consequential amendment - belt and braces again.
I prefer the Minister's amendment as it is shorter.
Amendment agreed to.
Amendment No. 615 not moved.
I move amendment No. 616:
In page 200, subsection (1), between lines 21 and 22, to insert the following:
"(b) Any order, regulation or policy directive made, or any other thing done, under the Local Government (Planning and Development) Acts, 1963 to 1999, that could have been made or done under a corresponding provision of this Act, shall not be invalidated by any repeal effected by this Act but shall, if in force immediately before that repeal was effected, have effect as if made or done under the corresponding provision of this Act, unless otherwise provided.”.
Amendment agreed to.
I move amendment No. 617:
In page 201, lines 1 and 2, to delete subsection (3) and substitute the following:
"(3) Section 2 of the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by section 69(1) of the Act of 1963 shall, notwithstanding the repeal of section 69 of the Act of 1963 by the Act of 1990, apply to every case, other than a case under this Act or the Act of 1990, where any compensation assessed will be payable by a planning authority or any other local authority.".
This is a technical amendment. The original text of the Bill provided a saver for section 2(3) of the 1990 planning Act which itself was a saver for a provision in the 1963 Act. This amendment restates section 2(3) of the 1990 Act and should make the saver easier to identify.
Amendment agreed to.
Section 240, as amended, agreed to.
Question proposed: "That section 240, as amended, stand part of the Bill."
Is the Minister sure that there will not be any unintended fall-out from this Bill? When we were voting on another Bill introduced by the Minister recently, I remarked to a Labour Party colleague that "Spring and Dukes got it right in 1983 and Howlin and Quinn got it wrong in 1996". The Minister will be aware of the Bill to which I am referring. Has he carried out any leak-proofing of this Bill? Are we repealing anything we should not be repealing?
I hope not. We have done our best with this Bill.
Question put and agreed to.
Section 241 agreed to.
NEW SECTIONS.
I move amendment No. 618:
In page 201, before section 242, to insert the following new section:
"242.-(1) Where, before the transfer of functions to the Board in accordance with sections 197 and 198, any matter was to be determined by the Minister under the enactments referred to in those sections, the Board shall, in lieu of the Minister, determine the matter in accordance with those sections.
(2) Sections 200, 201, 202, 203, 204 and 205 shall not apply to matters referred to in subsection (1) to be determined by the Board in accordance with that subsection.”.
The Bill, as drafted, originally retained the Minister's function in deciding on CPOs etc. which were submitted to him before the Act came into operation. One of the reasons for doing this was that people would have an expectation that certain procedures would apply - for example, the right to be heard at a public inquiry instead of an oral hearing under this Bill. When planning appeals were transferred from the Minister to the board under the 1976 Act, that was not accompanied by a major change in procedures. However, it is preferable that there are not two deciding authorities operating in parallel in deciding CPOs and it is now proposed that cases before the Minister, when Part XIV comes into force, should be decided upon by the board. It is proposed that the accompanying changes in procedures under sections 200 to 205 should not apply to these transitional cases. This will have the advantage of not constraining the board by the 18 week objective when considering its initial cases and will give it some time to get its systems in order——
It will, we hope, after Report Stage require the board to hold oral hearings in any case. Would it be correct to say that the import of this amendment is that the sooner the Minister can get rid of all this old procedure, the better?
Yes, that is a fair assessment of the situation.
Amendment agreed to.
Section 242 deleted.
Sections 243 to 245, inclusive, agreed to.
I move amendment No. 619:
In page 202, before the First Schedule, to insert the following new section:
"Part XIX
Miscellaneous Amendments
Chapter I
Amendment of the Local Government Act, 1991
246.-The Local Government Act, 1991, is hereby amended by the insertion of the following after section 47-
'47A. (1) This section applies to a person who holds the office of manager (in this section referred to as a "manager"), and whose period of office (in this section referred to as the "tenure period") is governed by an order under section 47.
(2) Notwithstanding any other enactment or instrument made thereunder, and subject to and in accordance with this section and with regulations made by the Minister under this section, the tenure period of a manager shall be extended where notification (in this section referred to as the "prescribed notification")-
(a) is given by the manager to the Cathaoirleach of the local authority concerned (being a Cathaoirleach for the purposes of Part IV of the Local Government Act, 1994), and
(b) is in the form prescribed by regulations made under this section.
(3) The Minister may make regulations for the purposes of this section and such regulations may provide for:
(a) the form of the prescribed notification;
(b) the period (in this section referred to as the “notification period”) within which a prescribed notification shall be given;
(c) subject to subsection (7), the period by which the tenure period shall be extended;
(d) the offices of manager to which subsection (4) does not apply;
(e) the application of different periods for the purposes of paragraphs (b) and (c) to specified classes of manager;
(f) such incidental, consequential and supplementary provisions as appear to the Minister to be necessary or expedient for the purposes of such regulations.
(4) Subject to subsection (3)(d)-
(a) a manager to whom this section applies shall not apply for appointment to any office of manager during the period commencing on the date the manager gives a prescribed notification and ending on a date which is 6 months prior to the expiration of the tenure period as extended by this section (in this subsection referred to as the “exclusion period”), and
(b) notwithstanding section 6 of the Local Authorities (Officers and Employees) Act, 1926, a manager who has given a prescribed notification shall not be considered by the Local Appointments Commissioners for selection for any office of manager during the exclusion period.
(5) (a) A notification period referred to in subsection (3)(b) shall be wholly within the tenure period.
(b) A prescribed notification for the purposes of this section which is given outside of the notification period is invalid.
(6) Nothing in this section shall be read as altering-
(a) the age limit standing specified in the Local Government (Officers Age Limit) Order, 1957 (S.I. No. 140 of 1957), as it applies to a manager,
(b) the tenure of office of any manager to whom an order under section 47 does not apply, or
(c) the tenure of office of any manager who does not give a prescribed notification under this section.
(7) A tenure period as extended in accordance with this section shall not exceed 10 years.
(8) Notwithstanding any actions already taken by the Local Appointments Commissioners in relation to the filling of an office of manager by virtue of section 50 of the Local Government Act, 1994, where the tenure period of a manager stands extended in accordance with this section, such extended tenure period shall be the tenure period for the purposes of that section 50 and that section shall apply accordingly.
(9) On receipt of a prescribed notification the Cathaoirleach of the local authority concerned (within the meaning given in subsection (2)(a)) shall-
(a) inform the members of the local authority of it at the next meeting of that local authority, and
(b) transmit a copy of it to the Minister and to the Local Appointments Commissioners.’.”.
This amendment will insert a new Part at the end of the Bill, Chapter 1 of which will contain a provision to amend the Local Government Act, 1991, to change the tenure arrangements of county and city managers. At present, the maximum term of office of a local authority city or county manager is seven years and the amendment will introduce an option to extend that period by three years.
Members will be aware of the background to this amendment which was broadly discussed in the House. I want to emphasise that the new arrangements will be completely optional. There will not be any change in the conditions of service of managers whose tenure of office is not governed by the legislation being amended or managers who do not wish to exercise the extension option. The managers have indicated that they are satisfied with the new proposed arrangements.
Primary legislation is required to make these changes in view of the need for certainty in regard to managers' tenure and to avoid any doubt attaching to the legality of important executive functions exercised by managers, for example in the area of planning. As I am anxious that arrangements in regard to tenure of office be implemented as soon as possible to restore stability in the system, I proposed the making of this amendment to the Planning and Development Bill. However, it is my intention, as previously indicated, that this provision will ultimately be included in local government legislation.
The Minister referred to the fact that managers whose tenure is not covered by the legislation will not be affected. How many such managers exist? My understanding of the provision is that the Minister is providing for an extension of the normal period of tenure of a manager but is also proposing that there would be a limit in time on the entitlement of a manager "in harness", so to speak, to seek a transfer in order to avoid excessive frequency of movement of managers between local authorities.
The background to this amendment is that the seven year tenure period meant that managers of a certain age stayed in one local authority for three or four years and subsequently applied for other managers' jobs in order that they could extend their tenure by a further seven years.
County and city managers felt that their tenure of office should be longer. They discussed the matter with me and with departmental officials and, in a sense, we came to a mutual agreement. I was aware of one particular case in which a county had three different managers in an 18 month period and that was leading to certain instabilities in the system and was not good for overall supervision. The managers felt that the seven year period was not satisfactory for the position of manager so we arrived at the compromise that the tenure period would be extended to ten years. However, managers must indicate as they approach the end of five years' service, whether they intend to opt for the extra three years. Once they do so, they are precluded from applying for a manager's job anywhere other than in very large centres such as Dublin city and Cork county as we did not feel it would be proper to restrict the field for those particular jobs.
In response to the Deputy's first question there are six so-called "lifers", managers who were in office prior to the last change and who can serve as managers until they reach retirement age.
Are they people who would have been appointed as managers at a relatively young age?
Yes, one of them has a further ten to 12 years to serve
County managers have a better deal on tenure than the Secretaries General of Departments.
Yes and far be it from me to say they have more responsibility.
The Minister is next.
Amendment agreed to.
Acting Chairman
Amendments Nos. 620 to 626, inclusive, are related and may be discussed together by agreement.
I move amendment No. 620:
In page 202, before the First Schedule, to insert the following new section:
"Chapter II
Amendment of Roads Act, 1993
247.-Section 57 of the Roads Act, 1993, is hereby amended-
(a) by the substitution of the following for subsection (1):
'(1) A road authority may prepare a scheme for the establishment of a system of tolls in respect of the use of a public road.',
(b) in subsection (2), by the substitution for ’in making a toll scheme’ of ’In preparing a scheme under subsection (1)’,
(c) in subsection (3), by the substitution for ’toll scheme’ of ’scheme prepared under subsection (1)’,
(d) in subsection (4), by the substitution for ’toll scheme’ of ’scheme under subsection (1)’,
(e) by the substitution of the following for subsection (5):
'(5) A road authority may prepare a scheme amending a toll scheme adopted by it under section 58.',
(f) in subsection (6) by the insertion before ’toll scheme’ of ’scheme prepared under subsection (1)’,
and
(g) by the substitution of the following for subsection (7):
'(7) (a) The Authority shall, before adopting a scheme prepared under subsection (1) in relation to a national road under section 58, send a copy of the scheme to the appropriate road authority under section 13 and serve a notice on the road authority stating-
(i) that a scheme under subsection (1) has been prepared, and
(ii) that representations may be made in writing to the Authority in relation to the scheme before such date as is specified in the notice (being not less than 6 weeks from the date of service of the notice).
(b) The Authority shall consider any representations made to it pursuant to a notice under paragraph (a).
(c) The making of representations by a road authority under this subsection shall be a reserved function and shall be without prejudice to the right of that authority to make objections to the Authority under section 58.’.”.
The aim of these amendments is to modify the existing legislative arrangements for tolling under the Roads Act, 1993, by removing the Minister for Environment and Local Government's quasi-judicial functions in relation to toll schemes, associated bye-laws, etc. Under the revised Part V of the Roads Act, 1993, the decision to adopt or revoke a toll scheme, adopt bye-laws or enter into toll arrangements with private investors will be a matter for the National Roads Authority in the case of national roads and, in the case of non-national roads, a matter for the relevant local authority. As a corollary, the Roads Act, 1993, is also being amended so that the Minister for the Environment and Local Government can issue policy directives to the National Roads Authority or local authorities regarding the exercise of their functions in relation to road tolling. The NRA or local authority will be obliged to comply with the directive issued by the Minister and any policy directive made by the Minister for the Environment and Local Government will be required to be laid before the Houses of the Oireachtas.
There are a number of provisions in the Planning and Development Bill which reduce the roll of the Minister for the Environment and Local Government in projects, specific approvals and consents. We had a fairly lengthy discussion on this issue earlier. These amendments are in keeping with the principle of subsidiarity as regards decision-making. While retaining the ministerial control at broad policy level and simplifying the statutory processes for the approval of toll schemes, the decision-making process in respect of toll schemes will be devolved to the bodies best placed to deal with the matter, that is, the NRA in the case of national roads and local authorities in the case of non-national roads. It would not be appropriate for powers in relation to the approval of tolling schemes, etc. to be transferred to An Bord Pleanála as such matters are outside its remit.
It is important to note that the NRA and local authorities will not operate in a vacuum in relation to tolling. As I indicated previously, they will be obliged to comply with policy directives issued by the Minister for the Environment and Local Government in this regard.
The Minister began by saying that the function of the amendments is to reduce the role of the Minister in relation to the tolling of roads. In a very interesting disquisition, he came full circle and concluded by saying that these people who are to take this burden off the Minister will have to act on the basis of policy directives issued by him. All the Minister is shuffling off is the administrative burden of making these toll schemes work. He does not want to be the person who makes the tolls but he will still be the person who issues policy directives on the basis on which tolls are made.
I do not see a lot of logic in this decision. The Minister wants to divest himself of the responsibility for doing the job but keep the right to issue policy directives as to how the job will be carried out. I do not find the proposal very credible, efficient or administratively elegant from that point of view.
The first time I saw this proposal, I wondered what was going on. Tolling roads seems to be one of the instruments of road pricing which should be considered, given the concerns regarding sustainable development. This is a legitimate weapon of policy. For that reason I am pleased the Minister is proposing to keep the power to make policy directives. I do not believe road tolling should be considered in relation to any particular road project on its own; it should be a matter of general policy. The practical possibilities for road tolling in this country are very limited. They seem to be limited to cases where there is a particular need, bottleneck or problem to be resolved as in the case of the two link bridges in Dublin and possibly the tunnel in Cork, although a decision was made not to toll that. These are the type of projects that I believe can be tolled.
There is another dimension of tolling, which we have not even begun to think about. This relates to the volume of traffic in a city area. For the remainder, it seems that tolling is unlikely to be a very attractive prospect because we have a relatively high density of roads compared to other countries and we do not yet have, and we are not likely to have in the foreseeable future, stretches long enough to make it a real option for people to either pay the toll or take an alternative route. One would need a reasonable distance between toll plazas to make it worthwhile to toll roads.
I am aware there are ways of getting round this dilemma. In some of the continental systems tolls are paid at the entry point. It may be that the exit is less than 50 kilometers away, in which case one would be kicking oneself for not taking an alternative route. However, I do not think we have long enough stretches of uninterrupted highway to make tolling an operative policy on a large scale. I may be wrong about that and I am aware that some people take a different view.
I do not think tolling will be a big part of highway policy. I cannot imagine a case where a local authority will be imposing a toll unless the Minister proposes to give the Minister, Deputy O'Rourke, the go ahead for a Dublin passenger transport authority. She has gone a little way towards what Deputy Mitchell almost put in place in 1986, but unless the Minister foresees that type of local authority as being the tolling agent, I cannot imagine what type of tolls he has in mind. I cannot imagine any part of County Kildare where the local authority, as the road authority, would impose a toll. There would be mutiny if an attempt was made to introduce tolling. I would like the Minister to explain the role he envisages for local authorities in their capacity as roads authorities.
The short answer to the Deputy's question is that I cannot envisage what roads the local authority might currently toll. However, in relation to traffic management measures, road pricing and so on, a scheme might have to be carried out by a local authority because county roads, rather than roads within a town, would be involved. I do not disagree with the Deputy's assessment that if one tolled stretches of road in Counties Kildare or Meath it would raise some eyebrows.
The NDP provides £1 billion of the £4.7 billion to be secured for national roads from the private sector and through the PPPs. The Deputy is correct in his assessment that if we continue the policy of doing relatively short stretches of roads and by-passing towns by removing bottlenecks there will be very little scope for tolling. In the national development plan, particularly in relation to the five corridors on which we have decided, the stretches of road will be considerably longer. An assessment is ongoing in relation to these various stretches of roads and more of these will be viable as PPP projects. They will also be more viable for tolling than was previously thought.
The initial pilot projects we discussed were bridges and other areas where there is constricted access, such as the Waterford and Limerick bridges. It now appears from further studies that the Kilcock-Athlone-Galway route would be suitable for tolling and a PPP project. There is also a possibility that the long stretch of the Dublin-Cork road would be viable. Other similar projects are being examined - the west link is another case and there are preliminary studies for the proposed eastern bypass. Due to the volume of traffic, PPPs and tolling will be greater than imagined originally.
I agree with the Deputy. If we had continued with the policies of the past, which were largely as a result of the constriction in finance available for this, we would not have many projects that would be suitable for PPPs. To prove that I am not doing this because I do not want to make decisions on tolls, I have involved myself in imposing tolls on the Dublin port tunnel and I have approved an inquiry for the second bridge on the new west link. It is important that the Minister retains the policy making role and makes it clear to NRA and local authorities what that policy is. Once the decision is made, however, and the NRA is clear about the policy, it is up to it to administer applications for such schemes. This will allow us to achieve that.
I agree with that but I do not like the Minister attempting to sell it on the basis that tolling will be someone else's business and not his. It is a political decision and should remain so. Can the Minister indicate the thinking on the minimum distance between access points to make it worthwhile to introduce tolls on a road?
That is why I am leaving the technical details to the NRA. I do not know. The longer the stretch, the more viable it is from a tolling point of view. The Kilcock-Kinnegad bypass, from preliminary drawings, will have perhaps two interchanges on it. I have heard much about the various routes for the Kinnegad-Athlone road——
The emerging preferred route.
——and the talk is of one or two interchanges. Those major corridors will be motorway or high quality dual carriageway. The stretches will be much longer than might have been the case previously. In PPP projects, the opportunities for hopping on and off these sections have to be limited.
In cases where there will be large stretches of a totally new route being built, with the current route being left in place, there is an alternative. It would make it easier to toll and it is worthwhile to those travelling longer distances to pay to avoid traffic at intersections on the route being replaced. I understand that on the proposed Galway-Dublin route, the thinking is for a completely new route some distance from the current route. If we ever get to the point where we construct a proper, high standard motorway from Portlaoise to Cork, it is likely that any new route would be some distance from the current route. We would not just upgrade the existing road. The option would exist of taking a less congested, more direct route or another route with more bends and traffic but which would not be tolled. Tolling would be more acceptable in such a situation than one where we tried to replicate the access points on the old route.
I first saw this in such an obvious form in Argentina, where there was an eight lane motorway into Buenos Aires and along side there was a dirt track which served as the alternative route into the city. We will be slightly more sophisticated because people will have the option. It was asked why motorists using these routes should have to pay. The answer is that there will be a choice, there will be alternatives. If they want to get from A to B at the same rate, they can use the old roads. The number of people who will decide that they will not use the road must be taken into account. With the road programme we have and the manner in which the NRA is going about its business, tolling will be as acceptable as it is in Europe and we will have better quality roads as a result.
In the cases of motorways and intercity links, is the Minister considering tolling only in PPP projects? Would he contemplate tolling in the event that the whole cost is being borne by the public sector?
Most of these routes, if they are to be viable as PPP projects, will be PPP projects. I am working on the basis that they will all be PPP projects. If that is not the case, it would be open for consideration.
The logic of tolling is the same in either case. It is the funding mechanism which makes the difference.
Amendment agreed to.
I move amendment No. 621:
In page 202, before the First Schedule, to insert the following new section:
"248.-The Roads Act, 1993, is hereby amended by the substitution of the following section for section 58:
'58-(1) A road authority shall publish in one or more newspapers circulating in the area where the proposed toll road is located or is to be located a notice-
(a) stating that a draft toll scheme has been prepared,
(b) indicating the times at which, the period (being a period of not less than one month from the first publication of the notice) during which, and the place at which a copy of the scheme prepared under section 57, any map referred to therein and the explanatory statement relating to the scheme may be inspected, and
(c) stating that objections to the draft toll scheme may be made in writing to the road authority before such date as is specified in the notice (being not less than 2 weeks from the end of the period for inspection referred to in paragraph (b)).
(2)(a) Subject to paragraph (b), a road authority may adopt a scheme prepared by it under subsection (1), with or without modifications and, subject to subsection (3), a scheme so adopted is hereafter in this Act referred to as a toll scheme.
(b) If an objection to a draft toll scheme is made to the road authority and the objection is not withdrawn the road authority shall, before deciding whether to adopt the draft toll scheme or not, cause an oral hearing to be held into the matters to which the objection relates, by a person appointed by the road authority, and shall consider the report of and any recommendation made by the person so appointed.
(3)(a) A toll scheme adopted by the road authority under this section shall come into force with the modifications, if any, therein made by the road authority on such day as may be determined by the road authority.
(b) Notice of the day on which a toll scheme is to come into force shall be published by the road authority at least one month before such day in one or more newspapers circulating in the area in which the toll road to which the scheme relates is located or will be located.’.”.
Amendment agreed to.
I move amendment No. 622:
In page 202, before the First Schedule, to insert the following new section:
"249.-Section 60 of the Roads Act, 1993, is hereby amended by the substitution of the following for that section:
'60. (1) A road authority may by order revoke a toll scheme adopted by it under section 58.
(2) Where a road authority proposes to make an order under subsection (1) it shall, before so making the order, publish in one or more newspapers circulating in the area where the toll road is located a notice-
(a) stating that it proposes to revoke the scheme,
(b) indicating the times at which, the period (being not less than one month from the first publication of the notice) during which, and the place at which, a copy of the proposal may be inspected,
(c) stating that objections or representations may be made in writing to the road authority in relation to the proposal before such date as is specified in the notice (being a date that falls not less than 2 weeks from the end of the period for inspection of the proposal).
(3) Before making an order under subsection (1), the road authority shall consider any objections or representations made to it in accordance with a notice under subsection (2).
(4) A road authority may at its discretion cause an oral hearing to be held into any matter to which objections or representations, made in accordance with a notice under subsection (2) and not withdrawn, relate, by a person appointed by the road authority, and where a road authority causes an oral hearing to be so held it shall, before revoking the toll scheme under subsection (3), consider the report of and any recommendation made by that person.
(5) The road authority shall publish in one or more newspapers circulating in the area where the toll road is located notice of the making of any order under subsection (1).
(6) The making of an order under this section in relation to a regional road or a local road shall be a reserved function.'.".
Amendment agreed to.
I move amendment No. 623:
In page 202, before the First Schedule, to insert the following new section:
"250.-Section 61 of the Roads Act, 1993, is hereby amended-
(a) by the deletion of subsection (5),
(b) by the substitution of the following subsection for subsection (6):
'(6) Before making bye-laws a road authority shall publish in one or more newspapers circulating in the area where the toll road to which the bye-laws relate is located or is to be located a notice-
(a) indicating that it is proposed to make such bye-laws and stating the purpose of the bye-laws,
(b) indicating the times at which, the period (being a period of not less than one month from the date of the first publication of the notice) during which, and the place at which, a copy of the draft bye-laws may be inspected,
(c) stating that objections or representations may be made in writing to the road authority in relation to the draft bye-laws before such date as is specified in the notice (being a date that falls not less than 2 weeks from the end of the period for inspection of the draft bye-laws), and
(d) stating that a copy of the draft bye-laws may be purchased on payment of such fee as is specified in the notice not exceeding the reasonable cost incurred in the making of such copy.’,
(c) by the substitution of the following subsection for subsection (7):
'(7) Before making bye-laws the road authority shall consider any objections or representations which have been made to it in accordance with a notice under subsection (6) and not withdrawn.',
(d) by the substitution of the following subsection for subsection (8):
'(8) Bye-laws made by a road authority under this section shall come into effect on such date as is specified in those bye-laws.',
and
(e) in subsection (9), by the substitution for ’approved’ of ’made’.”.
Amendment agreed to.
I move amendment No. 624:
In page 202, before the First Schedule, to insert the following new section:
"251.-Section 63 of the Roads Act, 1993, is hereby amended:
(a) in subsection (1), by the substitution for ’Where a toll scheme is approved by the Minister, a road authority may, with the consent of the Minister,’ of ’Where a toll scheme is adopted by a road authority, the road authority may’, and
(b) in subsection (3), by the deletion of ’, with the consent of the Minister,’.”.
Amendment agreed to.
I move amendment No. 625:
In page 202, before the First Schedule, to insert the following new section:
"252.-The Roads Act, 1993, is hereby amended in section 65 by the substitution for 'section 57' of 'section 58'.".
Amendment agreed to.
I move amendment No. 626:
In page 202, before the First Schedule, to insert the following new section:
"253.-Part V of the Roads Act, 1993, is hereby amended by the insertion after section 66 of the following sections:
'66A.-(1) The Minister may, from time to time, issue policy directives to road authorities regarding the exercise of any of their functions under Part V or any matter connected therewith and road authorities shall comply with any such directives.
(2) The Minister may revoke or amend a policy directive issued under this section.
(3) The Minister shall cause a copy of any policy directive issued under this section to be laid before each House of the Oireachtas.
(4) A road authority shall make available for inspection by members of the public any policy directive issued to it under this section.
(5) The Minister shall not issue a directive relating to a particular tolling scheme.
66B.-Notwithstanding this Part, every agreement entered into and every toll scheme or bye-law made by a road authority and in force immediately before the commencement of this section shall continue in force as if made or entered into under this Part as amended by the Planning and Development Act, 2000.
66C.-Where, before the commencement of Chapter II of Part XIX of the Planning and Development Act, 2000, any toll scheme, proposal to revoke a toll scheme or bye-law has been submitted to the Minister under Part V and the matter has not been determined by the Minister, the determination of the matter shall continue to rest with the Minister and Part V as amended by Chapter II of Part XIX of the Planning and Development Act, 2000, shall not apply with respect to the matter.’.”.
Amendment agreed to.
Most of the remaining amendments have been discussed with previous amendments. If you wish, Sir, we might continue and finish matters.
FIRST SCHEDULE.
Amendment No. 627 not moved.
I move amendment No. 628:
In page 203, lines 13 to 15, to delete paragraph 9 and substitute the following:
"9. Regulating, restricting or controlling development in order to reduce the risk of serious danger to human health or the environment.".
Amendment agreed to.
I move amendment No. 629:
In page 204, paragraph 1(b), line 22, after “centres” to insert “including community and family resource centres, community enterprise centres and community-owned social facilities”.
This amendment returns to the old danger of excluding by specifying. I am not sure if the list in the amendment adds to the general idea in the development plan.
Community centres have the connotation of places where social activities take place. I particularly want to add enterprise centres. Family resource centres and community owned social facilities would be readily understood to be community centres. The addition would be community enterprise centres.
I am fearful of the inclusion of enterprise centres. There is a general view of a community centre as something built for dances, musical events and so on. The amendment tries to ensure that this understanding is widened. We may look again at this question on Report Stage.
The Schedule already lists hospitals, places of worship, recreational facilities, shopping and banking facilities and so on.
I will look at this amendment again on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 630:
In page 205, paragraph 7, line 11, after "interest" to insert "or of historical or aesthetic interest".
I thought the Deputy had got away from the word "aesthetic". Historical features are covered in the preceding paragraph.
Amendment, by leave, withdrawn.
Amendment No. 631 not moved.
I move amendment No. 632:
In page 205, line 28, after "roads" to insert ", rail, light rail".
Amendment agreed to.
First Schedule, as amended, agreed to.
Second and Third Schedules agreed to.
FOURTH SCHEDULE.
Amendment No. 632a not moved.
I move amendment No. 633:
In page 212, lines 7 and 8, to delete paragraph 5 and substitute the following:
"5. The proposed development-
(a) could, due to the risk of a major accident or if a major accident were to occur, lead to a serious danger to human health or the environment, or
(b) is in an area where it is necessary to limit the risk of there being any serious danger to human health or the environment.".
Amendment agreed to.
Amendment No. 633a not moved.
I move amendment No. 634:
In page 213, between lines 8 and 9, to insert the following new paragraph:
"17. The proposed development would contravene design requirements imposed as conditions by the planning authority in conformity with any Ministerial guidelines issued under section 28 or any Ministerial policy directive issued under section 29.”.
Paragraph 16 covers what the amendment tries to achieve. That paragraph provides that a development may be refused without compensation if it does not comply with any type of ministerial guideline or policy directive. Therefore, should any planning guidelines be made regarding design standards and the application did not conform with them it could be refused on that basis without compensation.
Amendment, by leave, withdrawn.
Chairman
Amendments Nos. 635 and 642 are related and may be discussed together.
I move amendment No. 635:
In page 213, paragraph 19(a), to delete lines 22 to 28 and substitute the following:
"(i)(I) natural habitat types in Annex l of the Habitats Directive, or
(II) species in Annex ll of the Habitats Directive which the site hosts, and which have been selected by the Minister for Arts, Heritage, Gaeltacht and the Islands in accordance with Annex lll (Stage 1) of that Directive,
(ii) species of bird or their habitat or other habitat specified in Article 4 of the Birds Directive, which formed the basis of the classification of that site, or".
The definition of a European site contained in section 2 of the Bill includes SACs under the Habitats Directive and special protection areas under the Birds Directive. The provisions related to the exclusion of compensation in the Schedules only refer to conservation and preservation of sites and species under the Habitats Directive and not under the Birds Directive. These amendments, based on the advice provided by the Department of Arts, Heritage, Gaeltacht and the Islands, rectify that omission.
I intend to move an amendment on Report Stage to revise the definition of European site in section 2 in order to give a more comprehensive definition.
Amendment agreed to.
I move amendment No. 636:
In page 213, paragraph 20, line 34, after "agricultural" to insert ", recreational, as open space".
Amendment agreed to.
I move amendment No. 637:
In page 214. paragraph 22(b)(ii), line 14, to delete “or 13”.
Amendment agreed to.
I move amendment No. 638:
In page 214, paragraph 23, line 22, to delete "21” and substitute “22”.
Amendment agreed to.
I move amendment No. 639:
In page 214, after line 26, to insert the following:
"25. The proposed development would be influenced by the Seveso ll Directive.".
I believe the Minister has agreed to come back to this amendment on Report Stage. I withdraw the amendment.
Amendment, by leave, withdrawn.
Fourth Schedule, as amended, agreed to.
FIFTH SCHEDULE.
I move amendment No. 640:
In page 215, paragraph 2, line 9, to delete "under section 47” and substitute “included in a grant of permission pursuant to section 47”.
While section 47 provides for development contributions, the section states that they be levied in accordance with the condition under section 34. Therefore it is more accurate to describe contributions being levied pursuant to section 47 rather than under section 47.
Amendment agreed to.
I move amendment No. 641:
In page 215, lines 28 to 30, to delete paragraph 9 and substitute the following:
"9. Any condition relating to reducing the risk or limiting the consequences of a major accident, or limiting the risk of there being any serious danger to human health or the environment.".
Amendment agreed to.
I move amendment No. 642:
In page 216. paragraph 22(a), to delete lines 36 to 42 and substitute the following:
"(i) (II natural habitat types in Annex l of the Habitats Directive, or
(II) species in Annex ll of the Habitats Directive which the site hosts, contained in a European site selected by the Minister for Arts, Heritage, Gaeltacht and the Islands in accordance with Annex lll (Stage 1) of that Directive,
(ii) species of bird or their habitat or other habitat contained in a European site specified in Article 4 of the Birds Directive, which formed the basis of the classification of that site, or".
Amendment agreed to.
I move amendment No. 643:
In page 217, after line 33, to insert the following:
"34. Any conditions relating to the protection of a protected structure or a proposed protected structure.".
This is another corrective amendment arising from the continued proof-reading of the Bill during the past few months to ensure it is correct in every detail. One of the errors detected was that a provision in the 1999 Act which permits conditions relating to the protection of protected structure or a proposed protected structure to be attached to a permission without attracting compensation had been mistakenly omitted an early stage during the printing of the Bill. This amendment reinserts that important provision.
Amendment agreed to.
Acting Chairman
For the information of members, amendment No. 639 in the name of Deputy Clune was discussed with amendment No. 12 which was agreed. Amendment No. 644 in the name of Deputy Dukes was discussed with amendment No. 415.
Amendment No. 644 not moved.
Fifth Schedule, as amended, agreed to.
SIXTH SCHEDULE.
Amendments Nos. 645 and 646 not moved.
Question proposed: "That the Sixth Schedule be the Sixth Schedule to the Bill."
The repeals in the Sixth Schedule allow two provisions of the existing Planning Acts to remain on the Statue Book. The first is section 6 of the 1982 Act which gave retrospective authorisation to development granted permission by the Minister in contravention of the development plan following a court decision which declared that the Minister, the then appeals body, could not contravene the plan. The second is section 4 of the 1993 Act that gave retrospective permission to all development carried out by the State following the Mullaghmore case which decided the State had to obtain planning permission. As these provisions had once off effects there is no reason to use them again or contain them in a consolidated Bill. However, we were advised when drafting the Bill to leave the provisions on the Statute Book in case any doubt crept in about the validity of the developments authorised under these provisions. People could be concerned that the repeal of provisions could raise doubts about their continuing application.
I hope the Minister does not have occasion to say to his great-grandchildren how wise he was to leave that in the Bill.
It will probably come back to haunt me.
Question put and agreed to.
TITLE.
I move amendment No. 647:
In page 15, lines 12 to 16, to delete "TO AMEND THE ENVIRONMENTAL PROTECTION AGENCY ACT, 1992, THE WASTE MANAGEMENT ACT, 1996, AND CERTAIN OTHER ENACTMENTS AND TO MAKE RELATED AMENDMENTS" and substitute "TO PROVIDE FOR THE LICENSING OF EVENTS AND CONTROL OF FUNFAIRS; TO EXTEND THE TENURE OF MANAGERS UNDER THE LOCAL GOVERNMENT ACT, 1991, AND, FOR THAT AND OTHER PURPOSES, TO AMEND THAT ACT; TO AMENDTHE ENVIRONMENTAL PROTECTION AGENCY ACT, 1992, THE ROADS ACT, 1993, THE WASTE MANAGEMENT ACT, 1996, AND CERTAIN OTHER ENACTMENTS; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH".
This amends the Long Title of the Bill for two reasons, to better reflect the fact that the Bill deals with the control of funfairs and outdoor events and that amendments have been made to the Roads Act in regard to tolling and the Local Government Act, 1991, in relation to the tenure of managers.
Amendment agreed to.
Title, as amended, agreed to.
I know I speak for the assembled might of the Opposition when I thank the Minister for the way he has dealt with us on this Bill. It has been a productive Committee Stage and will lead to a rather longer Report Stage than is common but there are important issues in this Bill and it is worthwhile to deal with them with some care. I again thank the Minister and his officials.
I thank Deputy Dukes and his colleagues and Deputy Gilmore, who is not present at the moment, for their very constructive approach to this Bill. I know it is not easy for Members of the Opposition who might have not the same backup to make themselves as available as they have done and I thank them for that. The debate has been extremely constructive. I accepted a large number of amendments both here and in the Seanad because Members were trying to make this a good Bill. I thank the staff, the Clerk and the parliamentary reporters for their time. The way in which the Select Committee and its secretariat facilitated us was greatly appreciated. I thank the Acting Chairman for his efficient and speedy handling of the debate and I ask him to pass that on to the Chairman, Deputy Healy-Rae. It has been a good exercise in democracy.
Acting Chairman
On my behalf and on behalf of the Chairman I thank the Minister and his officials for their input to Committee Stage of the Bill. Twelve meetings were held taking up a period of 56 hours. This represents an enormous time and attention commitment on behalf of all concerned. I thank the staff who have supported or serviced these meetings, the secretariat and the Bills Office. Approximately 700 amendments were tabled. We have participated in the preparation of what is undoubtedly major and significant legislation that will impact on planning and development for years to come and hopefully our collective input on Committee Stage has helped to ensure that the Bill, when enacted, will be of lasting benefit and effectiveness. The meeting to deal with Estimates will be held on 31 May at 9.30 a.m.