Brendan Ryan (Dublin Fingal, Labour) | Oireachtas source

I also welcome the residents from Portmarnock, St. Margaret's and Swords and the forum group to the Gallery to listen to this debate.

The Bill which has been repeatedly delayed is finally here and yet it still seems hurried. The attempt to take Committee Stage next week was totally unacceptable and I congratulate the members of the committee who, I believe, unanimously rejected that request.

This Bill, which gives effect to an EU regulation on noise monitoring, is technical. Some might say it is too technical and some might even say it is dull. However, this is vital legislation and one which is causing huge alarm to many communities and residents in Fingal.

EU Regulation 598/2014 aims to improve the noise environment around EU airports to ensure greater compatibility between aviation activities and residential areas, in particular in the case of night flights. The rules are based on the principles of the balanced approach to noise management agreed by the ICAO, the United Nations body dealing with international civil aviation. The EU formulated the rules on the principles of the balanced approach to noise management agreed by this body, which seek to make airplanes quieter by setting noise standards, manage the land around airports in a sustainable way, adapt operational procedures to reduce the noise impact on the ground and introduce operating restrictions, usually as a last resort.

The purpose of the operating restrictions is that decisions regarding airports and their aviation are evidence based and offer the best solutions for noise problems with regards to safety, capacity and cost. EU Regulation 598/2014 states that this only applies to airports with more than 50,000 civil aircraft movements per year, meaning that Dublin Airport is the only airport in Ireland to which this applies. An operating restriction can take various forms, such as setting a noise or a movement limit, introducing a non-addition rule or adopting a curfew for a period of night. That is the context and includes the need for a balanced approach, something which is lacking in this Bill.

Any regulation which aims to improve the noise environment around EU airports should be welcomed with open arms. However, unfortunately we cannot welcome the legislation as it is currently drafted. Chiefly, Labour has a problem with the Minister's choice of Fingal County Council as the so-called competent authority for noise monitoring. We share that view with others who have already spoken.

The regulation states that this authority must be independent of any party that might have a conflict of interest. The Bill proposes to designate Fingal County Council as the competent authority and as such, we instantly have fears over potential conflicts of interest.

Under the Bill the functions of the competent authority are to be performed by the CEO of the county council. Those functions are to be treated as executive functions and the chief executive is to be independent in the performance of them. Specifically, the chief executive is not to be subject to the direction of the elected council acting by resolution under section 140 of the Local Government Act 2001. However, the chief executive may, to the extent that he or she is satisfied that it is appropriate to do so, have regard to any plan adopted by the elected council pursuant to its functions. That said, the members of the elected council are barred from influencing or seeking to influence the chief executive in his or her performance of a function of the competent authority. It is beyond me as to how this can be construed as giving power to local government. This shall not be construed to prevent the members of the elected council from discussing noise at the airport where relevant to the performance of their functions as the elected council.

The question is whether these elaborate safeguards satisfy the requirements of the airport noise regulation 598/2014. I believe they do not. Recital No. 13 of the regulation states that:

The competent authority responsible for adopting noise-related operating restrictions should be independent of any organisation involved in the airport’s operation, air transport or air navigation service provision, or representing the interests thereof and of the residents living in the vicinity of the airport. This should not be understood as requiring Member States to modify their administrative structures or decision-making procedures.

Article 3.2 provides that:

The competent authorities shall be independent of any organisation which could be affected by noise-related action. That independence may be achieved through a functional separation.

What is functional separation? That is key to this. Functional separation is EU jargon that is more familiar in the field of competition law as applied to monopoly utilities and service providers. It is a remedy that falls short of splitting up a monopoly and spinning off the component parts into separate ownership. Instead, the remedy is to impose an obligation on an undertaking to place certain of its activities into an independently operating business entity.

The best-known example in Ireland is the ESB. EirGrid and Electric Ireland are functionally separate entities within the ESB, with separate and independent boards. However, there remains a common ownership which is important, because the ESB can continue to borrow against the assets of the national grid.

However, I believe functional separation must require that each independent entity is confined to performing its own functions. Functional separation means a separation of function. For example, EirGrid is only concerned with the grid, Electric Ireland with sales and the ESB with generation. None of the three functionally separate entities has mixed or overlapping functions.

That is not what is proposed in this Bill. The CEO of the council is to be given certain functions, which he or she is to perform without direction from the council. However, he or she is to remain as CEO of the council: that will continue to be his day job.

If the CEO of the ESB was vested with direct responsibility for managing the national grid independent of the board of the ESB while continuing to perform the functions of CEO, anyone would think that grid management was functionally separate from the ESB. While the CEO of Fingal County Council will be independent of the elected members of the council under the Bill, he or she is not independent of the local authority itself, which is, in law, a separate concept. As such, he or she will remain as CEO of a body whose principal statutory function under section 63 of the Local Government Act 2001 is to provide a forum for the democratic representation of the local community and to provide civic leadership for that community. While providing a forum for democratic representation is primarily the responsibility of the elected members, it is the statutory duty of the CEO to advise and assist the elected members generally as regards the performance of their functions under section 132 (3) of the aforementioned Act.

The relationship between Fingal County Council and the DAA is very strong and close and needs to be thus. The airport is a key economic driver of the country and a vital source of employment for people all over Fingal. The rates are just one testament to the intertwined relationship of the DAA and council. The financial success of the DAA has a direct correlation with revenue generation for Fingal County Council. Coupled with this is the fact that the DAA is the largest ratepayer in Fingal County Council, with the authority accounting for 22% of the rateable income of the local authority. The existence of this financial relationship does not in and of itself indicate any party acting in a conflicted manner but it raises valid questions about the potential for a conflict of interest.

This Bill has to be read in the context of the building of the second runway at Dublin Airport. We are told that the delivery of the north runway will enable a 30% increase in connectivity which will support an additional 31,200 jobs and a further €2.2 billion of economic activity. This Bill, if passed, will pave the way for the second runway and for the DAA to apply to change the planning conditions which limit night-time flights on the new runway and across the entire airport. In recent years, the DAA has been making strong arguments through consecutive CEOs that the planning conditions need to be set aside to make the new runway economically viable. However, this argument can be disputed because there is a difference between viability and maximising profitability, which is the real concern of the DAA. The runway will be viable and profitable under the existing planning conditions but these conditions will restrict the DAA from wringing every last drop of revenue out of the runway. Allowing it to do so through night-time flights would be to the detriment of local residents in Fingal affected by flight noise, many of whom are in the Public Gallery this evening.

A balanced approach, as provided for in the EU's noise regulation - Regulation No. 598/2014 - must be applied but the constant references by the DAA to economic viability, which should be read as profitability, highlight what is really behind this project and provide context to this Bill. The economic relationship between the DAA and Fingal County Council leaves the council open to charges of a potential conflict of interest. Therefore, the Minister must choose a different body to be the competent authority.

The need for functional separation required by Regulation No. 598/2014 is not being met, as I outlined previously in the context of the ESB example. Fingal residents are also concerned about the council acting as both a decision maker for any planning applications regarding construction work and as an independent noise regulator. Dublin Airport will be forever building, expanding and growing and there have also been discussions in the Department on the building of a third terminal. In these instances, Fingal County Council would be both the independent noise regulator and the planning authority. The council should not hold both positions simultaneously. Surely the Minister can see this.

Another concern of citizens relates to the general aviation expertise of Fingal County Council. Is specific expertise currently at the disposal of Fingal County Council? If not, the council will have to hire in this expertise. Will its wage structure allow this? These are very real questions. This cannot be another responsibility added to an existing department or one given to an individual who already has other responsibilities. This is a highly specialised skill and, as such, needs the expertise of bodies such as the Commission for Aviation Regulation, CAR. In 2016, a ministerial press release claimed that the Irish Aviation Authority, IAA, was the best option to be the competent authority since it oversees aviation safety and air traffic control. Since then, the Minister has announced that he intends to split the IAA such that the CAR, which currently protects airport consumers and sets the level of airport charges, adopts the safety oversight feature of the IAA. Post-split, the IAA would only provide the for-profit, commercial air traffic control service while the CAR would be the independent regulatory body. Thus, the Commission for Aviation Regulation is a good option as it would fit the requirements of Regulation No. 598/2014, particularly in the post-reorganisation scenario outlined. The Environmental Protection Agency, EPA, is another option that would also be acceptable to the Labour Party.

There is no mention in the Bill of the importance of health, as referred to by other Deputies. This must be recognised as health is clearly referenced in Regulation No. 598/2014. I will not read the reference now but this must be included in the Bill. The regulation calls for an improvement in the quality of life of neighbouring citizens of airports, particularly where night flights are concerned. This is also not included in the Bill. What is the basis of the Minister's approach here? The suspicion of affected residents is that he is pursuing the bottom line and not taking a balanced approach to include the well-being of residents who live beside the airport and under flight paths. In fact, reference is made to animal habitats but there is no mention of the health of local residents. This is not a balanced approach.

If this Bill is enacted as proposed, there is a real risk of it being challenged before the European Court of Justice on the grounds that the current proposals do not achieve true functional separation as between the competent authority, namely, the CEO of the local authority, and the local residents via elected members on the council, which the competent authority will continue to serve, as CEO.

It is clear the Minister wishes to rush this Bill through the Houses. While the legislation has been delayed continuously, it still has an air of being rushed and hurried. This causes those of us on this side of the House to have concerns and suspicions. We are not happy with the Bill as drafted. We want the economy to grow and flourish. I want to see more jobs created at the airport. I also want to see more good jobs that are long term and will support families and local communities. Nobody wants to stand in the way of progress, including the local residents. As the Minister knows well, many of the residents objecting to the Bill have relatives or friends who work in the airport or work there themselves.

Nobody wants to see this done in the way the Minister is proposing. It will only lead to problems further down the line. It is fair to say that the relationship between the DAA and local people is not as good as it could be and faith in the Department of Transport, Tourism and Sport is not as good as it should be. This Bill, with Fingal County Council as the designated noise monitor, does nothing to meet the concerns of local residents. To be honest, it looks like the closer alignment of two powerful local forces, both of which can be forces for great work and delivery in Fingal. However, based on what I have already outlined and on what others have said and will say later, there should not be another bridge in their relationship carried through with this Bill because there is no need.

I ask the Minister to listen and to change this Bill. I urge him to introduce amendments on Committee Stage to replace Fingal County Council as the competent authority. He could choose the CAR or the EPA as the alternative. He should not leave it to those of us on this side of the House to choose an alternative for him by way of amendment.

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