Wednesday, 3 December 1986
Seanad Eireann Debate
Mr. M. O'Toole: The implementation is very uncertain and areas are not properly designed. The section refers to “by order or orders of the Minister... different days and for different purposes...” There are different provisions for different areas. Would the Minister be more specific and outline for the Seanad what is meant by different days, different purposes and different provisions for different areas? It is very vague. I take it that the Minister would decide when the Bill would be operative in different areas and for different purposes. I would like the Minister to be more specific on section 2.
Minister of State at the Department of the Environment (Mrs. A. Doyle): This section is a very standard section in any legislation such as this. It makes standard provision for the bringing into operation of the Act or various parts of the Act by order of the Minister. It allows the Act or various sections of it to be brought into operation in relation to a particular area or areas. It will allow for phased introduction of the Act taking account of policy priorities and staffing and, indeed, other resources. It is, as I said at the outset, fairly typical of this type of legislation.
Mr. M. O'Toole: I am not too happy with that reply. When the Minister talks about different areas, can she define any particular area she has in mind? Does she consider that Dublin city would be the first area affected by the implementation of this Bill, or parts of Dublin, or certain areas in the Dublin metropolitan area, rather than the rural areas of Ireland? Under that definition, has the Minister power to implement it in different areas? Do I take it that Dublin may be a priority area, because it might be more polluted than other parts of the country? Is Dublin the main area we are talking about under the Bill, or the less densely populated areas throughout the country?
Mrs. A. Doyle: Most of the sections in  the Bill would be applied, such as those pertaining to EC Directives or to the licensing system. There is provision — and, indeed, it could be that circumstances would warrant it — that certain areas of the country would come under specific parts of the Act, rather than nationally at one time. It may be Dublin. It could be somewhere else where we would have a particular problem that is so far unseen. The provision is there. It is enabling, so that the Minister can thereby direct, as circumstances may necessitate.
Mrs. A. Doyle: This section provides that emissions which arise from the incineration of waste at sea or from the use of radioactive substances will be excluded, as the Senator pointed out, from the  scope of the Bill. Both of these matters are, as suggested, regulated under other legislative codes: the Dumping at Sea Act, 1981, and the Nuclear Energy Act, 1971, respectively. Apart from any other consideration, their inclusion in the present Bill would result in a duplication or overlap of regulatory systems and that is the only reason we are not dealing with them here today.
The amendment is to delete “to be liable” and to substitute “to be considered liable”, in line 24. To accept this amendment would make the Act more workable. Primarily, it would give room for discretion. We must remember that this is not always a black and white area; it is a grey area. First, it would give that discretion later, section 14 includes the words “as he considers necessary for the purposes of this Act”. That is, in reference to the Minister. I do not agree with it in section 14, but I feel that to include it in section 4 would improve the Act. With regard to the second amendment, we have to include a new clause ——
Mrs. A. Doyle: This amendment is a drafting one only, but precisely on drafting grounds I do not think I can accept it. The amendment would beg the question of who is to do the considering — the person responsible for the pollutant, the person aggrieved by it, the local authority or the courts? As the section stands, the word “liable” carries its ordinary meaning in the context of being “apt to”. If any dispute arises as to whether a pollutant is in fact liable to have any effects listed in  indents (i), (ii) or (iii) then the matter will be ultimately for the courts to resolve.
This clause to “cause a nuisance”, would certainly improve the Bill. As far as I remember, there is no reference to a nuisance in the Bill with the exception of section 24, page 15. It says that: “The occupier of any premises shall not cause or permit an emission from such premises in such a quantity, or in such a manner, as to be a nuisance to any person.” This is the only place in the Act that I have come across the word “nuisance”. The word “nuisance” is not defined, which I feel it should be. I recall that the Minister, on Second Stage, dealing with certain proposals of mine then with regard to, for example, smell and noise, stated, in particular with regard to smell, that this would be covered as a nuisance, but, in fact, I do not think it is. While the sub-clause (iii) to “impair or interfere with amenities or with the environment” might very well be taken in the same context, I do not think it would be as forceful.
Might I also say that, with regard to another amendment which Senator O'Toole and I have in regard to noise, I think it would be important that there would be a reference in this Bill to nuisance, because it would be more aptly considered relevant to the Bill if we included this amendment. As far as I know, in dealing with nuisance in the courts I think a prosecution is normally under the 1798 Act, which is a very old one, and the definition of “nuisance” in that Act is totally out of date. I would like to see a reference to nuisance in this section. I do not feel that sub-clause (iii) is a suitable substitute or is, in fact, sufficient to deal with the problem of nuisance. I feel this should be included in the Bill.
Mrs. A. Doyle: I do not consider that this amendment is necessary. Impairment of or interference with amenities or the environment seems to include adequately the concept of nuisance. In any event, we are only dealing here in section 4 with the definition of the term “air pollution”. Nuisance is explicitly dealt with later on in the Bill at section 24(2). This places an absolute prohibition on any emission from any premises, domestic or non-domestic, which might cause nuisance. I think the Senators will find their concerns adequately dealt with there. It is quite specific.
Mr. Fitzsimons: As I have already said, I accept that a nuisance is dealt with in section 24. But the meaning of nuisance is not dealt with in the Bill, where we have the various references. For example, on page 8, we have no definition of nuisance. As I have already said, I accept that to a certain degree sub-clause (iii) of this section has the same effect as the amendment which Senator O'Toole and I have suggested; but, to widen the scope and to include a later amendment which Senator O'Toole and I have dealing with noise, it would be very important that this amendment would be accepted. To a certain extent it would seem to be that if this amendment is not accepted there would be no possibility of the amendment relating to noise being accepted.
Mrs. A. Doyle: Perhaps I could respond to the particular amendment before us here? Failing any definition of nuisance per se, even though I accept, as I think the Senator does, that section 4 (iii) effectively defines nuisance — and in fact subparagraphs (i), (ii) and (iii) effectively define nuisance — and there is a very well established common law history interpreting the word “nuisance” in our courts generally. Also, if it is not defined specifically in a Bill, or if anything like this is not defined in a Bill, it reverts to the ordinary dictionary definition of the word. A “nuisance” is quite clear and specific in  the dictionary definition in this case. There is no ambiguity as to what we mean by nuisance.
Mr. Fitzsimons: There is one further point I would like to make in relation to that. The big problem about the 1798 Act is that, while it does deal to some extent with nuisance, the fines are too small to be effective. If it were included in this Bill, where the fines for the penalties are quite substantial, even from that point of view a case could be made for including this. I have already submitted to the Minister that to some extent paragraph (iii) covers what we have in mind.
The final point I should like to make is that in relation to that antiquated law the penalties are too small to be effective. If it were included in the Bill, the penalties are so big that we would have a different situation completely.
Mrs. A. Doyle: The Senator has another amendment dealing with the 1878 Act later on. Notwithstanding that, a prosecution can be taken under this Bill with its considerably higher penalties. We can discuss that later.
Mr. M. O'Toole: The section refers to a condition of the atmosphere in which a pollutant is present in such a quantity as to be liable to be injurious to public health, or have a deleterious effect on flora or fauna, or damage property. In this case who defines whether or not the air is polluted?
Mr. M. O'Toole: Who will define that there is a condition in the atmosphere that is injurious to public health, and who will prove that this is so? Under subsection (2) who will be the deciding officer in deciding that there is a certain  amount of pollutant in the atmosphere that damages the flora and fauna, or that interferes with the amenity of the environment? There are three categories under section 4. Who will be the principal officer to judge in these cases that there is a pollutant present that brings about these conditions?
Mrs. A. Doyle: Ultimately, if there is absolute disagreement, the courts will be the final arbiters in relation to the points made by the Senator. Under EC directives and internationally accepted principles, there are standard guidelines and dose-effect relationships levels laid down. With monitoring and general testing of the areas we will know to what extent a nuisance or a problem has been caused and how it measures with what is acceptable. If that is not accepted, and the matter is challenged, the courts will be the ultimate arbiters.
This is an important matter and that is why Senator O'Toole and I tabled these amendments. There should be some time limit with regard to a ministerial direction, possibly not seven days, but some time limit for circulating it to An Bord Pleanála. A time limit should be specified. With regard to laying it before both Houses of the Oireachtas, it is important that Members should be kept in touch with what is happening. The direction being of such importance, it would be a simple matter to lay it before both Houses of the Oireachtas.
Mrs. A. Doyle: Whereas I am not in a position to accept amendments Nos. 3, 4,  and 5, I am prepared to concede to the concerns of the Senators. I should like to draw their attention to the amendment I propose that has just been circulated which will read as follows:
I urge Senators to accept that. As regards amendment No. 5, I should make it clear that these directions on best practical means will be of an administrative character and will not have the force of regulations. There will be no question then of submitting them to the Houses of the Oireachtas for approval. As to copies of the directions being made available to Senators and Deputies in the Oireachtas Library, this will be done through publication in Irish Oifigiúil.
Subject to subsection (3), a reference in this Act to the use of the best practicable means to prevent or limit an emission shall be construed as meaning the provision and proper maintenance, use, operation and supervision of facilities which, having regard to all the circumstances, are the most suitable for such prevention or limitation.
I have read in the media that, for example, An Taisce feel that “available” would be a better word to use than “practicable”, in other words, “of the best available means”. This would involve the use of the most up to date technology. I should  like the Minister to comment on this point. In regard to taking into consideration all the circumstances, for instance, would such an aspect as threatening redundancies be taken into account by the Minister? Also in this connection, when the nature and effect of the emission, the age of the plant and the cost involved are taken into account. I am sure the benefits which would accrue from whatever expense would be involved would be reasonable. I should like the Minister to comment on this.
Mrs. A. Doyle: I had just made reference to this, and I will repeat it. These directions on best practical means will be of an administrative character and will not have the force of regulations. There will be no question of submitting them to the Houses of the Oireachtas.
The difference between the best practical means and the best available means can best be understood if we look at it in the context that this law will have to apply to existing plant as well as to new plant. It would be reasonable enough to insist on the best available means for new plant, but often it would be excessive to insist on that for existing plant or to superimpose the best available technology on the existing plant might not be effectively reasonable by any stretch of the imagination. “Best practical means” is a flexible concept and, in relation to new plant, can involve technology approximating or equal to best available means. But in practice it would made no sense to stipulate “best practical means” as an absolute legal requirement. This would be highly inflexible. If it could be shown that advanced technology in relation to a particular process existed anywhere in the world, at whatever cost, that is the technology which would have to be required of plants setting up in Ireland. The EC are alive to this point. Their directive specifies a requirement of: “Best available technology not involving excessive cost”. In practice this will be the meaning of best practical means in relation to new plant. “Best available technology not involving excessive cost” is the EC wording which effectively translates to “best practical means”.
Mr. Fitzsimons: It seems to me that if “best available means” in effect means use of the most up-to-date technology, it is, for a start, more scientific. Therefore, it would appear to me that possibly it would be better to use that term. I understood the Minister agreed with this, having regard to the question of costs. It appears to me that whether one uses the phraseology “the best available means” or “the best practical means”, there is a kind of vagueness about it. To some extent it extends the objective, except that it is submitted to precise scientific examination. I understand that the Minister is satisfied that this wording serves best the situation.
Would the Minister also deal with the circumstances and what is taken into consideration. For example, would the threat of redundancies be taken into consideration when determining the circumstances? Would the threat of redundancies, for example, be of greater importance than some scientific research which would suggest that emissions should be curtailed, reduced or perhaps abolished altogether? In those circumstances what would be the weight of a situation of threatening redundancies? In other words, would that, of itself, in special circumstances lead us to a situation in which nothing would be done about emissions which would be polluting the atmosphere?
It would appear to me that redundancies would be one of the factors that could be considered among the costs. They would not be absolute and there is a price level beyond which we are not prepared to go for environmental pollution. But we are really talking about common sense and applying the best practical solution to a problem that may or may not arise. I hope the Senator would agree that under subparagraph (iii) his concern about redundancies and whether they would be considered could be allayed. They are a factor in relation to the costs.
An Leas-Chathaoirleach: Amendment No. 7 is consequential on amendment No. 6. Amendments Nos. 6 and 7 to be discussed together.
Government amendment No. 6:
In page 7, lines 8 to 11, to delete “other than industrial plant in respect of which a licence is required pursuant to regulations made under section 10 of the Local Government (Sanitary Services) Act, 1962”, and to substitute “other than industrial plant which is an unauthorised structure or the use of which constitutes an unauthorised use”.
Mrs. A. Doyle: The new wording and subsection being inserted by these amendments are necessary, first, to ensure that the status of “existing plant”, and hence exemption from licensing under Part III, is not conferred on any unauthorised development. While it is for the Planning Acts to control unauthorised development nevertheless it would be invidious for the provisions of this Bill to appear to condone the existence of plants illegally developed without  planning permission and to give these plants, if they exist, the benefit of exemption from air pollution licensing. The amendments will ensure that such unauthorised plant will be immediately subject to the licensing requirements of this Bill. I am sure that no Senator would disagree with that. We are proposing to delete the words relating to plant licensed under the 1962 Act regulations because of the greater simplicity of administration which would result. Regulations made in 1985 under the 1962 Act require the licensing of works involved in the extraction or recovery of certain metals from scrap metal, waste material and waste cable. As originally provided for, these industrial plants would have been immediately licensable under Part III without transitional arrangements, whereas alkali works registered under the 1906 Act would not. The amendments place both types of works on the same footing. They will have to observe any previous obligations on them under the Sanitary Services Act, 1962, or the Alkali, etc. Works Act, 1906, until such time as they are brought within the licensing system of this Bill.
Amendment agreed to.
Government amendment No. 7:
In page 7, between lines 13 and 14 to insert the following subsection:
“(4) In this section `unauthorised structure' and `unauthorised use' have the meanings assigned to them by the Local Government (Planning and Development) Act, 1963.”
Amendment agreed to.
Question proposed: “That section 6, as amended, stand part of the Bill.”
Mr. M. O'Toole: Section 6 defines “industrial plant” and lists, in the Third Schedule, the industrial processes to which the Bill applies. Subsection (3) reads:
The Minister may, by regulations, vary, by the addition or deletion of any  industrial process, the Third Schedule.
In the Third Schedule 30 processes are listed. What is meant by the wording of that subsection? Has the Minister any particular process in mind? Was the Minister anticipating that industrial processes would come on stream that were not covered by the provisions of the Bill, or is that what is meant by the words contained in that subsection — the addition or deletion of any industrial process? Perhaps the Minister would clarify the meaning there.
Mrs A. Doyle: I can assure the Senator that we have no particular process or industrial process in mind at present. It is to enable the Minister in the future, if technology should so warrant, to vary the Third Schedule. In that event any change in the regulations would have to be made by an affirmative order of both Houses of the Oireachtas. Therefore the matter would again come before this House and the Dáil for affirmation, when Senators would have an opportunity of expressing their opinions if they were not happy with any proposals in relation to the variance at that stage.
Mr. O'Toole: It would have to be dealt with by both Houses of the Oireachtas?
Mrs. A. Doyle: Both Houses by an authorative order.
Question put and agreed to.
An Leas-Chathaoirleach: Amendment No. 40 is consequential on amendment No. 8. Amendment Nos. 8 and 40 to be discussed together.
Government amendment No. 8:
In page 7, lines 42 and 43, in the definition of “industrial process”, to delete “in particular, the obtaining, dressing or treatment of minerals and the incineration, treatment or recovery of  wastes”, and to substitute “in particular, the getting, raising, taking, carrying away and processing (including size reduction, grading and heating) of minerals, the storage of mineral wastes and the incineration, treatment or recovery of other wastes”.
Mrs A. Doyle: We are proposing amendment No. 40 to put it beyond doubt that mining operations in waste disposal are industrial processes to which the licensing provisions of Part III apply. This is necessary to ensure proper control of mine tailings and should enable local authorities to deal with problems such as arose at Silvermines where, in dry conditions, dust arising from waste was blown around surrounding areas. Amendment No. 8 is a consequential provision to ensure consistency of wording under section 7 and the Third Schedule.
Amendment agreed to.
Question proposed: “That section 7, as amended, stand part of the Bill.”
Mr. Fitzsimons: The definition of “fireplace” on page 7, in section 7, seems to be very comprehensive. It includes any furnace, incinerator, grate or stove whether open or closed or any other place of combustion. Then in page 8 there is given a definition of “private dwelling” to mean and I quote:
“any building or structure or any part of any building or structure (including any ancillary building or structure) which is used, or intended to be used, solely for human habitation but does not include —
(a) a curtilage or garden, or
(b) a building which contains more than one dwelling and which has a fireplace with a maximum heating capacity exceeding 45 kW.
Could I ask the Minister: what would be the position of a building which included two or three flats? would each of them be considered a private dwelling? With  regard to the output from the fireplace, of 45 kW, that seems a very arbitrary output. In an ordinary domestic situation the output from a fireplace would be something in the region of three to seven kilowatts. Clearly 45 kilowatts is way above what one would expect to find in any domestic situation. I would like the Minister to tell us how the figure of 45 kilowatts was arrived at with regard to a private dwelling.
Mrs A. Doyle: The definitions of the words “fireplace” and “private dwelling” are the two that concern the Senator. “Fireplace” is defined to include any furnace, incinerator, grate or stove whether open or closed or any other place of combustion. This definition extends the meaning of “fireplace” beyond its usual connotation and, is, in effect, a technical definition for the purposes of Part IV of the Bill dealing with special control areas. It is also linked to the definition of “authorised fireplace” which means a fireplace specifically authorised for the purpose of a special control area order. It is used in order to exclude from the definition of “private dwelling”— which I will come to in a minute — any premises, for example, multi-flats and condominiums with a boiler or furnace giving an output of more than 45 kilowatts.
The definition of “private dwelling” is quite restrictive. The definition is required because private dwellings are excluded from obligations under section 24 (1) for the occupier of a premises to use the best practical means to limit and, if possible, to prevent an emission from the premises. It would be unreasonable in the normal way to require such equipment, appliances and so on to be used in private dwellings of which there are now close to a million in the country.
In the interests of protecting air quality therefore, it is essential that the exclusion relates only to bona fide private dwellings and that it does not extend to any type of operation being carried out in a back garden or shed which could give rise to air pollution, for example, the recovery of metal from scrap. Therefore, the curtilage or  garden of a private dwelling is excluded from the definition as is a multi-dwelling building, for example, an apartment block. The Senator referred to those with a furnace, a multi-dwelling building with a furnance with a heating capacity greater than 45 kilowatts. However, a boiler house containing a central heating boiler for the dwelling is included in the definition of a dwellinghouse; “private dwelling” means any building including any ancillary building or structure etc. I hope that satisfies the Senator?
Mr. Howard: I should like to give the Minister of State an opportunity to comment again on certain fears I expressed on Second Stage. I am concerned with a number of points. First, I am concerned with this authorised person. I have visions of a character going around the countryside spreading desolation and terror among houseowners and families. I am concerned that this character can emerge from two different sources. It is bad enough that he or she should emerge from the one source. I would expect there to be some measure of control by the local authority over the appointment and the activities of this officer. I can accept that. But I am concerned that this authorised officer can also be appointed by a person specified for that purpose. Therefore there are two methods of appointing these people, one, by the local authority and, two, by somebody else. I want to know who the somebody else is before I comment further.
Mr. Durcan: I would like to follow the point Senator Howard is making but perhaps from a different point of view. My concern relates to the authorised person and in relation to the definitions of the terms “premises” and “private dwelling”. “Premises” are defined as that place to which an authorised person may go in the exercise of his powers under section 14 (1) of this Bill. In considering the definition perhaps it is no harm to read into the record section 14 (1) because it is very relevant to the definition of “premises”:
Subject to subsection (2), an authorised person shall, for any purpose  connected with this Act, be entitled, at all reasonable times, to enter into any premises and to bring therein such other persons or equipment as he may consider necessary for the purpose.
In this Bill we are giving to this authorised person power to bring anybody he may wish with any equipment he may deem necessary into somebody's premises. What is a “premises”? This is what concerns me. I raised this in relation to the Control of Dogs Bill and I received very little succour from the Minister of State, Deputy Hegarty, in relation to the powers conferred by that Bill.
In relation to this Bill we will have the air pollution officer being entitled, as of right, without giving notice, to enter into one's premises. That includes any outbuilding and curtilage thereof. That means we are giving to the air pollution officer power to come in our front gate, come up our driveway, come into our sheds and outoffices, come into our garden to peer in our kitchen window. That is the power we are conferring on authorised persons under this Bill. We are not merely conferring that power on an authorised person. We are conferring it on such other persons as he may deem necessary, not on such other persons we, as legislators, designate but on such other persons as the authorised person shall designate. We are giving him that power to come right in, around our houses, into our sheds, barns, outoffices and gardens. I regard that as an invasion of privacy.
It as a trend in legislation I do not like. I regard it as giving powers to a new form of policeman. It is something I find very difficult to support. It is interesting, if you go a little further to the definition of “private dwelling”, that is the place where we sleep and eat, although the definition is rather more difficult to follow than that. If we come back to section 14 (2) there are there defined the powers of the authorised person in relation to the private dwelling where we see that, to exercise those powers other than in cases of urgency, he must give 48 hours notice. I believe the same provisions should apply in relation to outbuildings and curtilages.
 The concept of “private dwelling,” which is a place an authorised person may only enter having given 48 hours notice, should be expanded to include outoffices and curtilages, the area immediately around your dwelling house. I might draw an analogy — I do not have the statute before me — there is a good analogy in the Fisheries (Consolidation) Act 1959. From memory I think section 247 deals with the powers of water bailiffs in relation to an individual's property. Again a water baliff has certain difficulties in entering a private dwellinghouse, a garden or the curtilage thereof. I cannot see why we are moving away from that principle in this Bill. We moved away from it in the Control of Dogs Bill. We will now be faced not merely with dog wardens marauding around one's garden, peering in one's kitchen window, but with the tremendous sight of dog wardens colliding with air pollution officers, these new policemen we are creating. I would ask the Minister to think hard between now and Report Stage and to assure us that on Report Stage we will have an amendment that at least will ensure for our people the sancity of their homes.
Mr. Howard: On a point of order — I hope it is a point of order — could I suggest to Senator Durcan that he would read section 14 (2) again? I understood him to say that this authorised person who concerns him and me at this stage can enter a private dwelling having given 48 hours' notice. I contend that he can enter at any time if he feels it is urgent.
Mr. Durcan: Yes, if he feels it is urgent. We hear a lot about the National Board for Curriculum and Assessment Bill, which a Member of the other House was speaking about yesterday. If we are to have this type of power we will have to establish on a legislative basis a curriculum and examinations board for the air pollution officers. I should like assurance that they will be people who have proper training to enable them to determine in an informed way what is a matter of urgency.
Mrs. A. Doyle: Many of the contributions I have just heard would be more properly dealt with under section 14 than this one, which deals only with interpretations and definitions. The powers are given in section 14. I do not mind taking some of them now if that would be the wish of the House.
Mr. Durcan: I do not want to interrupt the Minister but they are the powers in relation to specific types of properties that are defined in this section. Therefore, it is relevant to raise them at this stage. I would hope that the Minister would change the definitions contained in this section.
Mrs. A. Doyle: I might reiterate a point I have just made. In the interests of protecting air quality it is essential that the exclusion relates only to bona fide private dwellings and that it does not extend to any type of operation — this is the definition of “private dwelling” to which many Senators have referred — being carried out in a back garden or shed which could give rise to air pollution. There are many of what I will call home industries, for want of a proper definition, small cottage industries that, thankfully, start in back gardens and garden sheds and that, hopefully, will go on to being something better and move into premises in their own right. If there is any question of these causing air pollution or difficulty — and there have been examples of such small industries hidden away from view — if there is any question of these causing air pollution, we must have access to them to remedy the difficulty.
An example I give is the recovery of metal from scrap. We have encountered this difficulty in greater Dublin in recent months. This is a real problem. It does not happen too often that people use their back garden or a garage, but it does occur. Most of them go on to better things to benefit us all. But there can be pollution caused — often by the unitiated — because generally it is uncontrolled. That is why, if you like, the scenario painted by the Senator could be considered in this instance. I do not envisage our setting  loose a whole army of peeping Toms. There would want to be very good reason or cause — as will become apparent as we go through the sections — for the lack of 48 hours' notice. It can be done without such notice, as the Senator rightly pointed out, in the event of an emergency or any urgent consideration. But it would want to be something grave. We can all take it that that is very unlikely to happen with any regularity. Ultimately, we should have the power, if necessary and if we are not getting any co-operation, to take action for the sake of the environment and for the sake of elimination of air pollution. It is only in that perspective that it is deemed necessary to leave it in the definitions and ultimately follow through on section 14 in relation to the powers given these people.
There were a couple of other points raised. I am being reminded of the definition of “authorised person”. An “authorised person” will be a person appointed in writing by a local authority for the purpose of this Act, or appointed in writing by a person specified in regulations made under this Act.
Mr. Howard: Such as —
Mrs. A. Doyle: I am coming to that. Local authorities will have to appoint people to carry out various tasks — for example, to carry out surveys of the types of fuels burned and types of fireplaces in an area prior to making a special control area order. The Bill also allows for the transfer by regulations which are dealt with under section 21 — and I might refer the Senator to it now — of functions from local authorities to other persons or bodies. They too will need to appoint people to carry out various duties. That is the point that might be causing some problems — if there could be any indiscriminate transfer of these functions by a local authority to any other body. It is really as defined in section 21, as is outlined there, that this provision is necessary.
Section 10 sets out the powers of “authorised persons” in relation to any purpose connected with this Bill. For  clarity I might quote section 21 — Transfer of functions — as I understand this etc... this is causing some concern:
(1) The Minister may, by regulations, provide that any function conferred on a local authority under this Act shall, in addition to or in lieu of, being performed by a local authority, be performed by such other person (including the Minister or another local authority) or body of persons as may be specified.
(2) In particular and without prejudice to the generality of subsection (1), regulations under this section may provide for the performance of any function conferred on a local authority by this Act by a body established under the Local Government Services (Corporate Bodies) Act, 1971, for that purpose.
That is particularly what we might have in mind if there were a specific body at some time in the future, or if it was deemed necessary that we needed a specific body other than the local authority, to handle this at some time in the future.
An Leas-Chathaoirleach: Do we continue on section 7 now because this is contained in sections 7, 14 and 21.
Mr. Howard: There is obviously an overlapping, and an overlapping of fears as well. I might revert to section 7 and the methods by which an “authorised person” might be appointed. I can accept lines 24 and 25 which say: “(a) appointed in writing by a local authority to be an authorised person for the purposes of this Act...” If we are serious about local democracy, at least within the local authority framework, there are the means whether through one's local representatives or whoever, of maintaining some sort of protection against the activities of an unreasonable individual, as I said the last day when speaking on this. I accept that in 99 per cent of cases authorised persons will be reasonable. But in legislating we must always provide for the possibility of the crank or madman emerging. The powers we are giving such  people, particularly if they were mad, would cause devastation in many areas. I would be satisfied enough with that method of appointment of an authorised person. I do not want to dwell too much on section 21 at this stage, but there is a reference to other bodies. There could be a proliferation of these authorised persons going around causing devastation. I would suggest to the Minister that she would seriously consider dropping that second channel of appointment and leave control of the appointment of an authorised person to local authorities. In that way some of us will be satisfied that some measure of control can be exercised over the activities of these people.
Mr. Fitzsimons: I would have to agree with the Minister that to some extent it is confusing to be dealing with three sections simultaneously, sections 7, 14 and 21. Here we are simply dealing with the definition of an “authorised person”. The limits of his authority are really covered in section 14. Senator M. O'Toole and I have an amendment to that section in relation to confining the power of an “authorised person” with regard to private dwellings. From that point of view it is important to be clear on exactly what is meant by “private dwelling”. The Minister has mentioned people who set up small factories or other manufacturing plants in their back gardens. We should be very reluctant, as the Minister has said, to interfere with them in any way in the present circumstances. They have to contend with the Planning Acts and this will be an added problem. Some of these people move on to greater things. We should be very reluctant to use this legislation to interfere with anybody who would set up in that way.
With regard to private dwellings, it is important to know exactly what is meant. I followed the Minister in her explanation earlier on. A private dwelling as is explained in section 7, is a building which contains not more than one dwelling and which has a fireplace with a maximum heating capacity exceeding 45 kW. I take  it from that that a building in which there is a number of flats and where a communal type of central heating exists would not be considered a private dwelling. In a situation where there is a number of separate flats,in effect private dwellings which do not have communal systems of central heating but which have their own fireplaces, would each of those be considered a private dwelling or would that building not be considered as a number of private dwellings?
Mrs. A. Doyle: If I was in a position to accede to Senator Howard's request for removing section 7 (1) (b) which deals with the definition of “authorised person”, I would effectively be making section 21 inoperable and that would not be in our best interest. A corporate body of a kind other than a local authority could quite possibly be empowered to look after matters contained in this Bill. We also have the situation whereby the IIRS or perhaps An Foras Forbartha may need to be called in to advise in technically difficult cases. The local authority would want to be able to call in advice from a specialist body and transfer the authority on them to advise or help resolve a particular problem. While I understand the Senator's fears I hope they are unfounded. I feel they are needless in relation to this. I hope I can put Senator Howard's mind at rest in relation to that. There are some very positive reasons why section 7 (1) (b) should remain. It would be in the best interest of us all, particularly local authorities, in the whole area of preventing environmental pollution.
I agree with Senator Fitzsimons. No unnecessary interference with small time operators who hopefully will grow into big time operators is intended. The only interference envisaged is if they cause pollution and if they are causing a nuisance to their neighbours or to the environment generally. It would be too high a price to pay to let them continue regardless of the entrepreneurial benefits of what they may be at. There is a balance here. It is not on interference out of contrariness, it is purely with the protection of the environment in mind that we want  to hold the right if necessary — I hope it will not be necessary — to curtail operations that are causing environmental nuisance and air pollution.
Senator Fitzsimons referred to apartment blocks, multi-dwelling buildings and condominiums and asked whether the individual units would be considered private dwellings rather than the whole lot taken as a block? Basically it would depend on the heating system. We are interested in exception only if there is a furnace with a heating capacity greater than 45 kW which heats the whole building or the whole block. If each is individually heated and individually operated from, for example, a single fireplace I imagine they would be taken as individual buildings and private dwellings separately. Where one of these great blocks is heated from a central furnace or a central heating system of some kind we need to be able to look into the matter. I hope I have covered the two aspects of the points raised.
Mr. Fitzsimons: I am glad to hear the Minister say that balance will be applied in those situations and I hope in practice that it will. In a situation where one building would have ten flats I understand from what the Minister has said that if those flats do not have a communal system of central heating they are then private dwellings and if they have a communal system of central heating for all the buildings they are not considered as private dwellings at all.
Mrs. A. Doyle: It is if there is over a 45 kW capacity.
Question put and agreed to.
Question proposed: “That section 8 stand part of the Bill.”
Mr. M. O'Toole: This legislation will apply to premises belonging to the State. The first premises that come to all our minds are Moneypoint and other ESB  generating stations. Are other buildings or premises belonging to the State and semi-State bodies covered by this Bill? The Section is very short. Are local authorities and semi-State bodies defined as State owned? Does the Sections cover all those institutions and buildings?
Mrs. A. Doyle: Yes.
Mr. M. O'Toole: It is intended that Moneypoint will be fitted with a flue gas desulphurisation system and equipment capable of achieving at least 95 per cent sulphur removal as well as no control technology as a matter of urgency? Will ESB power stations be fitted with emission controls? Is it envisaged that that will be done in the immediate future? When does the Minister think it would be necessary to fit Moneypoint with this type of equipment? That is a new generating station and in the advent of this Air Pollution Bill which was introduced here many months ago one would have thought that at the outset consideration would have been given to having installed in Moneypoint proper facilities for the curtailment of emissions into the atmosphere that might cause air pollution in the future. Indeed one would expect that a newly designed structure like Moneypoint would have all the modern controlled equipment to ensure that there would not be any pollution at all from the plant. Perhaps it was felt that the fitting of equipment in the older ESB generating stations was not necessary, but it may be necessary in the future. There should be the most modern up-to-date equipment in Moneypoint for the control of any pollution that might be leaking from such a generating station. Has the Minister any views on that? It is very relevant to this section.
Mr. Fitzsimons: I welcome the fact that all the premises in the State are included under the scope of this Bill. I take the Minister to imply that all State and local authorities buildings are included also.
It is a great defect in the Planning Act, 1963, and in subsequent Planning. Acts that the State and the local authorities do  not have to submit plans for proposals. We all know the result of this in different situations and different places. We can see it in Dublin Castle yard where there is a very insensitive scheme right up against one of our most beautiful buildings. We can see it all over the country. Local authorities can erect housing schemes and people living in the locality know nothing until the scheme has actually started. This is wrong. People should be given the opportunity to object.
I welcome the fact that no premises will be exempt from the Bill. I would also like to join with Senator O'Toole in what he said about Moneypoint. I do not want to bring this up in the context of political point scoring but it undermines the credibility of the Government in bringing in this important Bill to the Seanad and at the same time being reponsible for the building at Moneypoint where there is no facility for the refinement to which Senator O'Toole referred. We have had representations from An Taisce, Earth Watch and various other bodies concerned about this problem.
While certain Members of the Government are very reassuring about the situation I am afraid I cannot accept that there is no danger of transboundary pollution. It has been very clearly brought home to us that that danger is inherent in the building without the refinement of a desulphurisation device. It is an important scheme and has been designed and completed by Irish engineers and Irish personnel. It is a scheme of which we are all proud. It is unfortunate and wrong that this refinement was not included. I do not thing it would have been that prohibitive in terms of the whole investment.
I have no doubt that in years to come there will be a problem, perhaps not in the immediate vicinity but further afield, with regard to acid rain. We have spoken about acid rain in this House and there is no doubt that this will cause a further problem of acid rain from now on. Under sections 26, 27 and 28, where a local authority, either the authority in control of the immediate area or another local authority will have an opportunity to  object to a situation like that, is there a possibility that, while this work for all practical purposes has been completed, when this Bill comes into operation some body or group who feel strongly about it may object and perhaps cause an actual shut down in Moneypoint until these devices in the flue are located?
Mr. Durcan: I share the concern expressed by Senator Fitzsimons and Senator O'Toole that this Bill should apply to local authorities. I do not share the view expressed by the Minister that section 8 can be construed as giving applicability to local authorities. Section 8 is simply a statement of fact that the Bill, when enacted, will apply to premises belonging to or in the occupation of the State.
Mrs. A. Doyle: The Senator is correct.
Mr. Durcan: On reading the Bill it appears to be quite clear that the Bill does not apply to local authorities. When I read the interpretation section I was buoyed in that regard feeling that the second type of appointee, the one Senator Howard objected to, not being a local authority appointed air pollution officer, could police the local authorities. That was satisfactory. Unfortunately on reading further through the Bill when one comes to section 13, dealing with prosecution of offences, one sees that an offence under this Act may be prosecuted by a local authority. It appears that there is no power under this Bill for a local authority to be prosecuted. It may be a little like the Building Control Bill 1984. The provisions of that measure apply to local authorities but cannot be enforced against local authorities. I would like the Minister to assure this House that this Bill applies to local authorities and more importantly it can be enforced against local authorities.
The relevance of that must not be forgotten in the light of the whole question of water pollution. As we know, water pollution is policed by regional fisheries boards. We had a debate last year when the suggestion was made that that power  should be taken over by the Department of the Environment. The former Minister for the Environment, Deputy Kavanagh, indicated that such would be the case. That idea was subsequently dropped. One reason it was dropped was that the local authorities, who themselves infrequently pollute, could not police themselves. The same difficulty arises here; there is no policing power and no enforcement agency as against local authorities.
That brings me to an argument against the whole basis of this Bill as to whether the local authorities should have the job of controlling pollution of any kind, whether it be air pollution or otherwise. I would like the Minister to confirm, first, that the Bill applies to local authorities and secondly, that it is enforcable in our courts against local authorities.
Mrs. A. Doyle: I want to take the last point first. We have covered so many sections and subsections at this stage that it is getting a little bit untidy. Many of the questions on Moneypoint would be better dealt with under Part III. I am quite prepared to deal with them now if it helps Senators to get the full story. Section 8 states: “This Act shall apply to premises belonging to or in the occupation of the State”. As that definition stands as the Senator correctly points out it does not include local authority buildings. I want to refer immediately to section 24 where a local authority presence could be included and would be intended to be included if there was difficulty. Section 24 (1) states:
“The occupier of any premises, other than a private dwelling, shall use the best practicable means to limit and, if possible, to prevent an emission from such premises.
Effectively under that section it can apply to any local authority building. Senators may say quite correctly that the local authority are hardly likely to enter and prosecute themselves as it is structured now. Section 13 (2) states:
The Minister may, by regulation under this section, prescribe that such  offence as may be specified in the regulations may be prosecuted summarily by such person (including the Minister) as may be so specified in addition to, or lieu of, the relevant local authority.
If we have a contrary local authority who are not playing ball both in terms of their actual premises and prosecuting, there is a mechanism for prosecuting the local authority. Effectively local authorities and all State premises are included in this Bill, perhaps not in section 8 specifically, but they bear the full rigours of this Bill. Unlike the specific exemptions under the development controls which local authorities now enjoy, they are not being let off in relation to this Bill.
An Leas-Chathaoirleach: I was going to get some order back in the House because it is not a bit like me to chair a session where Senators are jumping three sections ahead of me.
Mr. Durcan: You are very modest.
An Leas-Chathaoirleach: We will take it section by section. We were taking three sections together. Now I see an amendment 9 to section 13, which would relate to what was being said. I must bring some order into the debate.
Mrs. A. Doyle: Perhaps I should make the point that technically, Moneypoint is not a premises owned by the State. Perhaps this is where the confusion came in. It is semi-State.
Mr. Fitzsimons: Are we to understand that all premises in the State come within the ambit of this Bill? Is is not necessary to include the definition that local authorities are covered and that it applies to all premises in the State whether they belong to the State or not?
Mrs. A. Doyle: This section specifically refers to premises belonging to or in the occupation of the State. It is to get over the position that these premises of central Government now enjoy by being exempt  from any special controls in environmental planning They will no longer be exempt so far as this Bill is concerned. Section 24 will bring in any premises other than a private dwelling which is specifically dealt with. Any of the other areas you have particular concern about are included in section 24 and other sections. Section 8 refers to property belonging to or in the occupation of the State. This is to make the point that they no longer enjoy the special exemptions they have had heretofore under planning regulations.
Question put and agreed to.
Section 9 agreed to.
Question proposed: “That section 10 stand part of the Bill.”
Mr. Fitzsimons: Section 10 (4) states:
Every regulation made by the Minister under this Act (other than a regulation made under section (6) shall be laid before each House of the Oireachtas...
Why is any regulation made under section 6 excluded?
Mrs. A. Doyle: This goes back to the point I made a short while ago that, effectively, it will need affirmative resolutions of both Houses. There will be further opportunity to make a point of view on the Bill.
Question put and agreed to.
Question proposed: “That section 11 stand part of the Bill.”
Mr. Fitzsimons: It seems that there is a situation here where we could have double penalty. Section 11 (2) states:
 Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other official of such body, such person shall also be guilty of an offence.
With such heavy fines we could have a double penalty in certain circumstances. Is that the situation?
Mr. Durcan: The practice of our courts has been, in cases where more than one person is prosecuted in respect of one offence, merely to convict one person. That is why this provision exists. If one examines section 8, which says “The Act shall apply to premises belonging to or in the occupation of the State”, it is conceivable that, where one person would own a premises and somebody else would occupy it, both may be prosecuted and the court would determine which one to penalise.
Mrs. A. Doyle: The Senator has very eloquently answered the issue. Basically the rules of court will sort out any case of double jeopardy. It is deliberately there, so the buck will not be passed.
Question put and agreed to.
Question proposed: “That section 12 stand part of the Bill.”
Mr. Durcan: I have one question on section 12 in relation to the level of fine imposed in respect of continuing offences, which is fixed at £100 per day. By virtue of the nature of this Bill and by virtue of the matters which it deals with, does the Minister not feel that a greater level of fine should be imposed in respect of a continuing offence, perhaps a fine of £500 per day in respect of continuing offences? I do not think that the level of  fine of that nature would bring our courts, which deal with matters in a summary way, into the area of constitutional difficulty. The level of fine should be increased to £500 per day in respect of continuing offences.
Mrs. A. Doyle: The Attorney General's advice to us on this is that this is about the maximum for a District Court. There is a provision for more serious offences to go to the higher courts and then we are talking about £1,000 a day or more. At this point you are talking about the District Court.
Mr. Fitzsimons: These are very heavy fines — £10,000 for conviction or indictment is a penal sum. In section 12 (1) (a) there is a limit of £1,000. In section 12 (1) (b) there is an initial penalty of £10,000 and then there is a penalty not exceeding £1,000 for every day on which the offence is continued. But apparently there is no limit as in section 12 (1) (a) with regard to this penalty. Therefore, if the case goes on for one year it is multiplied by 365 as well as the initial £10,000. This is unlikely to go on for a year, but there should be some limit. It seems to be snowballing along. This would be unacceptable in a situation where for example, some people would be trying to comply with regulations and enactments.
Mrs. A. Doyle: There is need for some consistency here. We expressed fears earlier of transboundary pollution. It cannot have escaped anyone's notice that we could easily be dealing with multinationals and perhaps in some cases reluctance to retrofit desulphurisation plants, for example, something that were deemed so necessary. Part of the deterrent is the fact that the penalties are quite severe, particularly when you go above the District Court level. I subscribe to that. There is a way out if they do not want to pay it — they sort out the problem fast. That option is there and that is the option I hope they choose. The money is of very little interest to us; it is the environment we are trying to protect, and this is a deterrent. All my convictions are to stand  strictly by it and hope it is adopted as it stands. There are also provisions for imprisonment for continuing offences where no effort is being made to put things right.
Mr. M. O'Toole: I have to go along with Senator Fitzsimons in regard to the penalties. I know there must be penalties for failure to take some corrective measure for control. Take the case at present where several protests have been made about emissions from Sellafield into the Irish Sea and where there is a continual protest from this Government and various other bodies calling for closure of the plant. Notwithstanding all that, there is a continuance of emissions of air pollution from a plant, where an individual may not be able to control that air pollution, £1,000 a day for every day, or £100 as the case may be, is a very heavy fine. While the applicant or the defendant may be trying to get his house in order, he is fined £1,000 and then for every day after that on which that pollution occurs he is going to be fined £100 under section 12 (1) or £1,000 under 12 (2).
Professor Dooge: This is not mandatory. This is an upper limit and it is for the judge who is dealing with the case to deal with this.
Mr. M. O'Toole: We are giving them powers.
Professor Dooge: There may be cases where the action is so villainous, where the disregard of the public interest is so continuous, where a person attempts to snap their fingers at the law that we must give our judges power to really crack down.
Mr. M. O'Toole: I know we are giving them power but a fine of £100 a day, or £1,000 as the case may be, is very wide scope to give to any judge. You are dependent on the conscience of the particular judge, or how his mind is geared towards air pollution. They vary from District Court to District Court and in the Circuit Court.
An Leas-Chathaoirleach: It is now 6.30 p.m. and I understand on the Order of Business today it was decided to take Item 4.
Professor Dooge: We could finish this particular section within 60 seconds.
Mrs. A. Doyle: We could agree on this.
An Leas-Chathaoirleach: It is time, and if we cannot get agreement, would the Leader of the House report progress?
Progress reported; Committee to sit again.
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