Tuesday, 26 March 2019
Aircraft Noise (Dublin Airport) Regulation Bill 2018: Report Stage (Resumed)
Amendments Nos. 51, 52 and 90 to 92, inclusive, are related may be discussed together. Amendment No. 52 is a physical alternative to amendment No. 51. Amendments Nos. 90 and 92 are consequential. Deputy Darragh O'Brien was in possession.
We had a detailed discussion on this element. I was looking back at the record of the debate, which we concluded on 21 February last. This was around something myself and Deputy Clare Daly had discussed on Committee Stage with the Minister, which was effectively that, should an individual make a complaint, that complaint would be responded to in writing. We were not asking that every single complaint be investigated thoroughly or anything like it but, as Deputy Clare Daly will agree, simply that a complaint would be responded to. I want to correct the record because I did not mean what I said then to come out like it did, in that I had said that complaints were not being dealt with effectively by the DAA, when that was a charge some people were making. There is now an opportunity, given there will be an independent competent authority, for this level of independence to be there. What this is really about is ensuring that we are not watering down this amendment, which we had agreed in principle on Committee Stage. The Minister had indicated on Committee Stage that this is something he would accept but his own amendment flies in the face of that. I had outlined my view clearly on 21 February, as had Deputy Daly.
I have provided here a formal avenue of complaint by which a person can have some avenue to be heard. I believe this meets the intention of Deputy Clare Daly's amendment. In the first instance, under amendment No. 51, it will be a matter solely for the noise regulator to consider if there are grounds to review a noise assessment where circumstances may have changed. It also gives power for the regulator to direct the airport authority to provide it with any necessary information it requires to undertake such an assessment. Under amendment No. 91, any person can make a complaint to the regulator and ask it to review the effectiveness of noise mitigation measures in place. This provides for a mechanism by which a person with a genuine complaint has somewhere to go and be heard. Amendments Nos. 90 and 92 are consequential on amendment No. 91. In summary, only the regulator can consider whether there is good reason to open up a regulatory decision in between the five-year regulatory cycle but any person can complain to the regulator at any point and request an investigation into non-compliance with a regulatory decision.
I did not propose to mandate the regulator in primary legislation to respond in writing to every single request on the reasonable expectation that Fingal County Council would engage with people in accordance with its own existing citizens charter. Fingal County Council's citizens charter, which is available on its website, sets out the quality of service that can be expected from Fingal County Council across all of its functions, including the availability of information, timeliness, complaints procedures and redress. Primary legislation is not typically the place for setting out detailed administrative procedures such as this. However, in response to what has been said on this issue and in the interests of transparency, I hear what has been said about requiring the noise regulator to write back to people who make complaints. In response to the genuine concerns of Deputies Troy, Clare Daly and Darragh O'Brien, I am prepared to bring an amendment forward to the Seanad on this.
I do not know why the Minister could not have said that in the first past of his response but that is what we were looking for. We had an agreement with the officials in the discussions between Committee Stage and this debate. We recognise that the Minister was attempting to address a gap whereby a person could not contact the competent authority but, in doing that, he left out the bit about getting an explanation in writing. To repeat, we were not insisting on that in every scenario but just that it would be acknowledged in that way. Given that it is a matter of record that the Minister will put this forward in the Seanad, on that basis, I am happy to withdraw my amendment.
On amendment No. 91, will noise impact maps be produced by Fingal County Council, as well as by the DAA? Will the other local authorities in Dublin, and possibly in Meath and Kildare, have the capacity to also have a noise impact map upon which they could evaluate what they might feel are complaints from people who live in those local authorities?
On amendment No. 91 in the name of the Minister, section (3)(a) states: "The airport authority, or a person upon whom there is a noise impact ... may ... request the competent authority to review the effectiveness of the noise mitigation measures".
However, in section 3(b), the amendment provides that the competent authority "may, at its discretion, comply" with such a request. Therefore, the competent authority may also choose to ignore such a request. One would then wonder what is the purpose of the amendment at all. I am seriously concerned about amendment No. 91 on that basis.
The competent authority will respond to all requests. That is our intention. We will bring an amendment to the Seanad to endorse and underline that. In response to Deputy Broughan, it will be a matter for the regulator to determine what noise maps are appropriate. Obviously, the potential noise implications might extend beyond Fingal. The regulator will determine that and we are dependent on the regulator being reasonable and objective. It will be up to the regulator to determine what to accept.
The Minister's reply to me suggests that following a request for information, the competent authority will have to respond. The point I am making, however, is that the person on whom there is a noise impact may request a review but paragraph (b) says that the competent authority "may, at its discretion" comply or, read another way, choose to ignore a request for a review. I am not just talking about a request for information but an actual review of the noise impact of the mitigation measures.
Okay. I will ask the Minister to clarify on this occasion but let us be clear about the rules. The Minister may speak three times on an amendment that he has brought. The Minister has already spoken three times so we are breaching our own procedures now. However, to be of help to Members, which I will not be again, I will ask the Minister to respond briefly.
I think I have responded already. It is up to the competent authority to determine its response but there is now a procedure in place for complaints to be made. We will be introducing an amendment in the Seanad to provide that all complaints will get a written response.
Yes, but the Minister has made his point. The Deputy can oppose the amendment on that basis but the Minister has indicated that he will bring an amendment to the Seanad. If he does so and if that amendment is passed, then the matter will come back here before us.
I move amendment No. 54:
In page 13, line 39, after “authority” to insert the following:“, the elected members of FCC, the elected members of Dáil Éireann in whose constituencies the airport is located”.
I move amendment No. 55:
In page 14, line 25, to delete “defer” and substitute “authorise”.
Always when there is a gap between sessions, it takes a while to get back into the issues and refresh the memory as to where we are in the process. It is my understanding that all of these amendments relate to the issues of phraseology, language and intent. In various parts of the legislation reference is made to the competent authority or the appeals body deciding that a noise mitigation measure should be put in place. Such a measure is something that is of benefit to the community and it has been decided that it will be implemented. This amendment, along with others in the grouping, refers to the language around instances where such a decision may not be implemented. In essence, what the Bill says in various places is that the competent authority can "defer" the introduction of positive noise mitigation measures for a period of time. We discussed this issue on Committee Stage. There is obviously a certain logic around that because in some instances the measure simply cannot be implemented straight away. We understand that but what we are trying to do by changing the language is to have a much more positive approach. My amendments provide that the assumption should be that the noise mitigation measure is moved to be implemented immediately. Instead of the term "defer", which is a negative word that means to delay or put off, I provide that the competent authority can "authorise", for reasons contained in the notice, a lead-in time for the coming into force of a noise mitigation measure. In essence, what I am doing in all of these amendments is taking out "defer", which allows a certain laxity which is not helpful, and replacing it with "authorise", providing that the competent authority or the appeals body can authorise a lead-in time. By doing that, the onus is on the DAA or whatever body is required to implement the noise mitigation measure to start straight away. If the mitigation measure means that a building must be built, we realise that it will not be completed straight away but we want it to be started straight away. The language is very important here. The aim is to get away from the possibility of laxity which allows an out or a delay.
We must bear in mind that every delay has a punitive effect on the residents living nearby who have to put up with noise which has been deemed to be unacceptable by either the competent authority or the appeals body. A decision has been made that something must be put in place to mitigate the noise, and what I am trying to do here is to make sure that the legislation cannot be exploited by an authority that wants to wriggle out of its responsibility. The language is balanced in the sense of being practical. We are not being ridiculous and saying that the mitigation measures must be implemented overnight. We understand that some measures can take time, but the assumption must be that the implementation should start straight away, even if it takes some time to conclude. My language is far better than that used in the Bill currently and I urge Members to endorse this group of amendments.
We discussed this in some detail on Committee Stage. I agree with Deputy Clare Daly that the assumption must be positive. These amendments are based on striving for a balanced approach. We want to take into account the genuine concerns of residents while the airport develops and while we protect, enhance and grow jobs and livelihoods. As discussed previously, we are not saying that measures must be implemented immediately, although if they can be, they should. If mitigation measures require substantial works on campus, for example, the competent authority can authorise such works and determine that they must be completed within a certain period. Of course, some degree of flexibility would be allowed, as with the planning process generally, so that if something could not be completed, the relevant authority could come back and apply for a further extension. The legislation as it is written at the moment means that the competent authority could decide to defer the works, and in that way positive changes could be left in abeyance. The changes to the Bill are minor. We are all on the same page with regard to what we want the competent authority to do in terms of making sure that mitigation measures deemed necessary cannot just be deferred. This slight change in language makes a lot of sense. It makes the Bill more positive and more focused on balancing the needs of residents and neighbouring communities with the needs of the airport.
Residents in the Dublin 15 area are increasingly perplexed by the Minister's approach to the Bill. Essentially, we have a growing Dublin Airport and we want to see good jobs, good employment and the development of the airport. The airport, however, is more and more looking to run very early morning flights right into the middle of the day. Housing is developing in many different areas of Dublin 15 under flight paths or extremely close to flight paths. Although they are aware that Dublin Airport is very close, people are concerned that when they finally get to buy their houses - which can be very expensive - there will be no indication and no information available as to when flight paths change. I am contacted regularly by people who find that there are more flights flying closer to their houses.
From other European cities we are aware of fantastic technical advances that have been made, and some technical advances have been made at Dublin Airport over the decades, such as changes to aircraft technology to reduce noise levels and running flights in a particular way to mitigate the noise. This is well known with regard to busy airports around the world but some airports are better at this than others.
We should strengthen the Bill in a way that will increase the right of householders to not be completely overcome by noise levels just because the regulation is weak. When people currently complain to Dublin Airport, often all they get is an invitation to meet with somebody, but this does not go anywhere and their concerns are not addressed. This is very important, especially as the Minister has chosen the council to be the regulator. We have discussed this matter previously. We all know the airport is part of the council's remit and part of the council's bread and butter. We are looking at regulation by an entity that has a vested interest in the development of the airport. This is publicly known. It is part of the council's job to ensure the airport develops appropriately.
We want a clear indication in the language of the legislation to address people's concerns, particularly those people moving into new or existing houses in areas such as Hollystown, Hollywoodrath, Blackwood or Ongar where people are increasingly complaining about aircraft noise and have no proper channel by which to have their complaints addressed. It does not seem this will happen in the legislation as currently proposed. We support the change of wording proposed by amendment No. 55 to "authorise", which is stronger language. The amendment is to even out the scales between the people who live in the vicinity of the airport who are subject to the noise, and Dublin Airport and the Dublin Airport Authority, DAA, in their conducting of the business of operating flights. It is also to ensure that when something happens or goes wrong, people have a genuine remedy they can access and pursue. After the debate on this Bill, people's confidence in the quality of the regulation system nose dived rather than improved.
I too support Deputy Clare Daly's amendments. The proposed wording changes such as "authorise a lead in time for" as opposed to "defer" the coming into effect of the operating restrictions, is far stronger language. Given that the Minister, Deputy Ross, has already indicated he will bring forward amendments in the Seanad, I ask that he agrees to these amendments or that he addresses the important issues in his amendments.
I support these important amendments brought forward by Deputy Clare Daly around mitigation plans. It has been a while since we have had a chance to discuss the Bill. I have taken another look at the European noise directive and the 2006 regulations. It is striking that the regulations appointed the Environmental Protection Agency to be the national authority for all noise. One of the fundamental problems with the Bill is that we do not have any information about noise levels. What are the kinds of levels on the noise maps which circulate out from the airport itself? This whole area is at the heart of what we are discussing. There is a later amendment from Deputy Clare Daly that is precisely on that point. I believe we will have to come back to this legislation again in another Dáil as it is fundamentally misguided.
I note that some of our journalist colleagues have reported - through a freedom of information request - in TheJournal.ieonline newspaper on memoranda given to the Minister from his officials describing concerns about appointing Fingal County Council as the noise regulator. The council itself had a fundamental concern that it should not be designated as the noise regulator for the airport because of the massive conflict of interest, of which we are all aware. The memoranda from the officials to the Minister gave the Minister the lines of attack we on this side of the House would launch in relation to the conflict of interest.
The Bill proposes legislation that is not sustainable for the longer term. There are those of us who want sustainable development of the airport region, of Fingal and of north Dublin and we want to ensure that residents have peace. It is astonishing that no noise levels are indicated and that the Minister is picking a regulator that is conflicted. It is also astonishing that colleagues have to come to this House to table a series of amendments to ensure the regulator will take a proactive role in responding to concerns about noise levels.
Fianna Fáil supports this amendment. This issue was discussed at length on Committee Stage. Deputy Daly has pointed out the principle that in certain instances there will be noise mitigation measures that, given the complexity and the lead in time for construction, will take a period of time. It is to allow - in those instances where there is a short or a long lead-in time - a period of time to acknowledge that. In certain other instances, however, there are noise mitigation measures that could be done straight away. For example, restrictions at a particular time could be done fairly quickly as opposed to building a large embankment that may take a number of months and might need separate planning permission to carry out the works. To be fair, on Committee Stage the Minister agreed in principle with our proposal and with what we are trying to achieve. I hope the Minister will again agree with what we are trying to achieve in strengthening the legislation as we bring it through the Oireachtas.
I thank Deputies for their contributions. The differences between the two sides are not huge, or the language may or may not be as important as Deputy Daly has said.
It is about how measures are rolled out and implemented. The term "defer" which the Deputy wishes to replace does not refer to putting things off on the never-never. The purpose of the use of the term is to give the regulator the necessary flexibility to include in a regulatory decision a requirement for the immediate implementation of noise mitigation measures and to set out future measures that need to be implemented in the event that certain activity levels are reached. This is because it is possible that certain elements of a regulatory decision are triggered not on the day of the decision but at some future date or on foot of some future event. For example, some noise mitigation measures may be triggered by a certain number of aircraft movements. These sections simply allow the regulator to provide for that.
I have examined the Deputy's amendments carefully and sought further legal advice on them. I am advised that what we have provided is standard language in legal drafting and has been prepared in consultation with the Office of the Parliamentary Counsel. It is therefore more legally sound. On the other hand, the expression "a lead-in time" while well understood colloquially is not typical legal drafting language. For the same reason, the word "defer" is preferable to the word "authorise" in this context and in legal drafting. That is my legal advice. I admit that the distinction does not lend itself to the most satisfying level of public debate. I hope, however, that we can accept that there is no substantive disagreement here and that this simply is a matter of better drafting. Whatever is in the regulatory decision will have to be implemented. On the more substantive matter, the regulator may defer, under the Bill as drafted, the implementation of a noise mitigation measure by the regulated entity but must specify the date or triggering event on which the measure will come into effect and publish reasons for any such deferral. I hope this helps to clarify my reasoning in not accepting Deputy Clare Daly's amendments.
Unsurprisingly, I am afraid it does not. In particular, it does not help in the context of the fact that we obviously discussed these issues on Committee Stage and I agreed then that the language I was then proposing was loose and gave rise to some of the concerns the Minister has reiterated without taking into account the change we have made to tighten it up. I do not buy the line the Minister gives because it is tempered by the second point. All of the circumstances the Minister highlighted, including the right to have a specific date or the occurrence of an event as a trigger, are still in existence. That is still in the draft as we have provided it which is what provides the legal clarity. The change of language makes it much more of an exception. In essence, if one has to authorise something, it is, obviously, an exception and the expectation is that it will be implemented as soon as possible. Deferral, however, is something like a putting off. One sees that if one looks up the definition in a dictionary. We are trying to create a happier medium between the two. The language I have put forward is preferable to that as it is much more positive endorsement. If one looks at the phrases and the parts of the Bill where some of this comes into effect, there are sections on planning decisions. If it is a planning decision, it should be a condition of the planning permission. As such, there should be no deferral at all. We are still giving the specific dates and occurrences. They are all still there. In some ways, these are technical things but they have to be rooted in what we are discussing. These are public health measures to mitigate the impact of noise on residents. We do not want a little loophole for someone to come through and delay that implementation while at the same time we do not want it to be so ludicrous as to be impractical. This form of wording is different from the form proposed on Committee Stage. It is a better balance. It is clear to me that there is no legal impediment. There would be if we had proposed taking out section 19(18)(b) but all of those things are still there. I disagree with the Minister.
We discussed this at length and my colleague has put forward the logic and rationale behind it. We have moved on quite a lot of this and we have taken the Minister and the Government at their word on certain elements. We have tried to work on this in a constructive way. I grant that the Minister has accepted a number of amendments and brought forward significant changes to the Bill. However, on the amendments, the language is very important. It is particularly important because we are left with a competent authority based on the Government's advice which is in my view imperfect. However, we have to work with it. As such, we have to improve how the legislation around that operates and governs matters. It is imperative that the changes here regarding "authorised" and "lead-in time" are actually made. If there were some slight change to that or specific areas in the Bill where that caused a problem, I suggest it is open to the Government to propose any change in the Seanad. We went through this at length on Committee Stage and we have gone through it again on Report Stage. It makes eminent sense to do it. It will reinforce the balanced approach. It balances the needs of residents with the future growth of the airport.
The Minister's response failed to build additional confidence in his approach to the legislation. One need only ask if he would be the flag-carrier for this legislation if it affected people over in his constituency. It is unsatisfactory because of the arrangements around the authority which is to implement the regulation. That authority is hopelessly conflicted for all the reasons we know because it is also the planning authority for the entity running the airport. As Deputy Broughan said, that is unsatisfactory. The Minister has been unable to adduce any clear evidence that Fingal County Council as regulator will be sufficiently independent to act vigorously in the interest of residents who are affected. Currently, the whole area is undergoing a significant amount of building and there are new houses coming on stream in the vicinity of all the areas around the airport. They are getting closer and closer to the flight paths but no one is clear about where exactly and how exactly they will be affected. We are not regulating noise levels in this instance, as happens in other countries. As has happened in other countries, there is a huge level of technical skill available for an authority working in conjunction with the airport itself and local residents. Given the technological developments, it is possible to make significant improvements and reductions in the noise levels. The Minister is simply going through the motions in relation to the Bill rather than taking into account that where someone is badly affected by noise, it may end up not simply disturbing that person's peace of mind, it may deprive the person of sleep and negatively affect his or her whole life. We support the amendment proposed by Deputy Clare Daly because it is fundamentally a better approach than that of the Minister.
We do not have to work with it and we would not have to work with it if Fianna Fáil had not abstained at key moments. We had a key vote which the Government won by three or four votes and Fianna Fáil sat it out.
I do not believe we are far apart. It is a matter of language and language is important. As I must follow the legal advice I have received on this issue, I must oppose the amendment proposed by Deputy Clare Daly, perhaps with some regret, but that is what I must do. When I receive legal advice, it would be rash and foolish of me to defy or counter it.
I know the views of Deputies Burton and Brendan Ryan on Fingal County Council being conflicted, as we have heard them several times previously. Deputy Broughan has raised the issue again, but that battle has been fought. Deputies can raise it as often as they wish and it is probably raised with a genuine worry about any competent authority, but when they say Fingal County Council is conflicted, I remind them that the IAA was found to be conflicted. The same arbiter on this issue found that Fingal County Council was not conflicted. That is the legal advice we received and we took it. When the advice came through about the IAA, we took it very reluctantly and with a heavy heart because it was a commitment which we had believed was solid.
We must take the same advice which states unequivocally that Fingal County Council is not conflicted. We accept that and are going ahead on that basis. If Members want me to defy the Attorney General's advice, they should say so. They want me to say "to hell with it" and invite every possible court challenge.
There are many issues, some of which we will discuss. I remind the Minister that before he decided to appoint Fingal County Council - bear in mind that no other jurisdiction in Europe has done the same - the European Union wrote to him to state the key element in making the appointment was the independence of the authority. It recommended that he carefully ensure this independence beforehand because it could raise concerns at a later stage. I guarantee him that it will raise concerns.
Deputy Brendan Ryan is 100% correct. The process is under way, but the House has not yet voted on the Bill. Fingal County Council will be the competent authority if we pass the Bill and it is upheld in the Seanad. If we do not, it will not be. We are only in the middle of the process and the decision rests with Fianna Fáil.
The Minister's position on this group of amendments does not stand up to serious scrutiny and has not been substantiated. We are talking about circumstances where the competent authority or the appeals body has made a decision to introduce either noise mitigation measures or operating restrictions. All of the appeal processes are over and everybody accepts that the measure must be implemented. I am seeking to avoid any unnecessary delay. "Defer" is a negative and implies putting off. The justification the Minister gave for why he had to have what was a lead-in time, in layman's terms, was that he wanted to have a scenario where the specific date or the occurrences which would trigger it could be specified. They are all still there and my amendment does not change any of it. The only thing my amendment would change is the word "defer" to "authorise" for a lead-in time for the reasons stated in the notice. Instead of deferring the coming into effect, we would be authorising a lead-in time. All of the other justifications the Minister said the Attorney General gave him would still be in place. We have not sought to change them.
Bobby Aylward, Mick Barry, Richard Boyd Barrett, John Brady, Tommy Broughan, James Browne, Pat Buckley, Joan Burton, Mary Butler, Jackie Cahill, Dara Calleary, Pat Casey, Michael Collins, Catherine Connolly, David Cullinane, Clare Daly, Pearse Doherty, Timmy Dooley, Peter Fitzpatrick, Kathleen Funchion, Seán Haughey, Michael Healy-Rae, Séamus Healy, Brendan Howlin, Martin Kenny, Mattie McGrath, Denise Mitchell, Aindrias Moynihan, Michael Moynihan, Imelda Munster, Margaret Murphy O'Mahony, Catherine Murphy, Paul Murphy, Darragh O'Brien, Jonathan O'Brien, Jim O'Callaghan, Louise O'Reilly, Jan O'Sullivan, Maureen O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Éamon Ó Cuív, Donnchadh Ó Laoghaire, Willie Penrose, Thomas Pringle, Maurice Quinlivan, Brendan Ryan, Eamon Ryan, Seán Sherlock, Bríd Smith, Niamh Smyth, Brian Stanley, Peadar Tóibín, Robert Troy.
Maria Bailey, Pat Breen, Colm Brophy, Richard Bruton, Peter Burke, Catherine Byrne, Seán Canney, Ciarán Cannon, Joe Carey, Marcella Corcoran Kennedy, Simon Coveney, Michael D'Arcy, Jim Daly, Pat Deering, Regina Doherty, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Frances Fitzgerald, Charles Flanagan, Noel Grealish, Simon Harris, Martin Heydon, Heather Humphreys, Seán Kyne, Michael Lowry, Josepha Madigan, Helen McEntee, Finian McGrath, Joe McHugh, Tony McLoughlin, Kevin Moran, Eoghan Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Kate O'Connell, Patrick O'Donovan, Fergus O'Dowd, John Paul Phelan, Michael Ring, Shane Ross, David Stanton.
I move amendment No. 59:
In page 15, between lines 15 and 16, to insert the following:“(23) In this Part, health aspects shall be assessed in accordance with the Environmental Noise Directive and the European Communities (Environmental Noise) Regulations 2018 (S.I. No. 549 of 2018).”.
I move amendment No. 60:
In page 15, between lines 26 and 27, to insert the following:“(24) The competent authority shall undertake a health impact study of the residents living in the vicinity of the airport every ten years and shall commence such a study within one year of enactment.”.
I move amendment No. 61:
In page 19, to delete lines 24 to 29 and substitute the following:“(10) (a) Where the Board has failed to make a decision under this section in relation to the appeal within the period it is required to do so by a provision of this section and becomes aware, whether through notification by the appellant or otherwise, that it has so failed, the Board shall nevertheless proceed to make such decision and the decision so made shall be considered to have been made under this section notwithstanding such failure.(b) The Board shall, as soon as is practicable after it becomes aware of a failure referred to in paragraph (a)—(i) give notice in writing of such failure, together with the reasons for such failure, to the appellant and the competent authority and, if the airport authority is not the appellant, the airport authority, and
(ii) publish on its website the reasons for such failure.”.
This largely technical amendment will ensure the process, as set out in the Bill following acceptance of the Committee Stage amendments, is workable in practice and will not have unintended legal consequences. Deputies may recall that on Committee Stage an amendment was passed to require An Bord Pleanála, where it had made a decision after its committee deadline for the making of that decision, to publish a written explanation as to why it was late with its decision. It is a fair and reasonable addition to the Bill and adds another dimension of transparency to the overall process. In moving the amendment I am simply bringing forward a minor rewording of the Committee Stage amendment to make it clear that the board does not have to explain the reasons for its lateness at the same time as it makes the late decision but can do so separately. It is a relatively small point in the scheme of the Bill, but it is procedurally important because it covers a possible scenario where the board unknowingly or unintentionally makes a late decision and, therefore, does not explain at the same time why it is late with its decision. The change of wording simply provides that the reasons for any such delay in its decision can be published as soon as practicable afterwards if the board has not explained itself at the same time it makes the late decision. The scenario is highly unlikely, but we must legislate for it. The provision is important to protect the validity of the final decision and will ensure a late decision will not be invalidated simply because it is not accompanied by an explanation of the reasons for the lateness.
I move amendment No. 66:
In page 23, line 15, to delete “thereof.” and substitute the following:“ “thereof;(d) an interested party may directly refer the application in subsection (1)(a) to the competent authority in cases where the planning authority decides no such referral is required. The competent authority will review the matter immediately and uphold or overturn the decision of the planning authority. When the decision is overturned, subsection (2) will apply.”.
I might be confusing myself, given that the amendment may not be necessary. It emerged following changes made on Committee Stage. It covers a leftover aspect. My intention is to ensure the planning authority would have to refer an application to the competent authority. There was a loophole in the earlier draft of the Bill, whereby the planning authority would have had a choice in deciding whether to send an application to the competent authority. I am trying to ensure that loophole has been closed. I think it has been and, in hindsight, probably did not need to table the amendment, although the Minister might enlighten us in that regard.
The Deputy should withdraw the amendment because the matter has been covered in a previous amendment. While I agree with the intention of the amendment, the has been covered. Therefore, I will not accept the amendment.
The Bill provides that every planning application relating to the development of Dublin Airport will go to the noise regulator for review and the regulator will make a determination as to whether the development would have such a noise impact that it warrants the need to consider the introduction of an operating restriction. Is that okay?
I move amendment No. 73:
In page 33, line 35, after “authority” to insert the following:“, the elected members of FCC, the elected members of Dáil Éireann in whose constituencies the airport is located”.
I move amendment No. 78:
In page 35, between lines 30 and 31, to insert the following:“(22) In this Part, health aspects shall be assessed in accordance with the Environmental Noise Directive and the European Communities (Environmental Noise) Regulations 2018 (S.I. No. 549 of 2018).”.
I move amendment No. 84:
In page 44, to delete lines 11 to 27 and substitute the following:“(2) Where, before the relevant day, a person has entered into consultations with the Board under section 37B of the Act of 2000 in relation to a relevant development but no notice under subsection (4)(a) of that section has been served on such person following such consultations, such consultations shall, on and after the relevant day and by virtue of this subsection, cease and, on and after the relevant day, no such notice shall be served on such person.
(3) (a) Paragraphs (b)and (c)apply where, before the relevant day, a notice has been served on a person under section 37B(4)(a) of the Act of 2000 in relation to a relevant development on a person but no related application has been made under section 37E of that Act.(b) On and after the relevant day, the notice that has been served under section 37B(4)(a) of the Act of 2000 shall, by virtue of this subsection, be deemed to be withdrawn by the Board and—(4) (a) Paragraphs (b)and (c)apply where, before the relevant day, an application has been made under section 37E of the Act of 2000 in relation to a relevant development, but has not yet been determined by, the Board.(i) accordingly, the related application may not be made under section 37E of that Act or, if made, the Board shall refuse to deal with it, and(c) This subsection shall not be construed as preventing the related application from being proceeded with by way of being made to the appropriate planning authority.
(ii) the Board shall, as soon as is practicable on or after the relevant day, give notice in writing to the person on whom such notice was served that he or she may not make the related application under section 37E of that Act and the reasons for that.(b) On and after the relevant day, the notice that has been served under section 37B(4)(a) of the Act of 2000 that gave rise to the application shall, by virtue of this subsection, be deemed to be withdrawn by the Board and—(5) Sections 146B and 146C of the Act of 2000 shall, on and after the relevant day, cease to apply to a decision of the Board to grant permission under section 37G of that Act to a relevant development.(i) accordingly, the Board shall refuse to further deal with the application,(c) This subsection shall not be construed as preventing the application from being proceeded with by way of being made to the appropriate planning authority.
(ii) the Board shall return the application to the person who made it together with any fee that accompanied the application, and
(iii) the Board shall, as soon as is practicable on or after the relevant day, give notice in writing to the person who made the application, and any other person who has made submissions or observations on the application, that the Board will no longer deal with the application and the reasons for that.
(6) In this section—“planning authority” means a local authority within the meaning of section 2 of the Act of 2001;
“relevant day” means the day on which subsection (1)comes into operation;
“relevant development” means the development deleted, bysubsection (1), from paragraph 2 of the Seventh Schedule to the Act of 2000.”.
This amendment stems from a change made to section of 11 on Committee Stage on foot of consultations with Deputies. That change ensured that every planning application for development of the airport would be assessed by the noise regulator - not the planning authority - in order to determine the likely noise impacts and decide whether there would be a requirement to carry out the Regulation 598/2014 process. Amendment No. 84 makes sure that any planning application relating to Dublin Airport that is currently with An Bord Pleanála under the accelerated strategic infrastructure development process which has not yet been decided is brought back to the start to ensure that the noise regulator gets to make an initial assessment of it. This means that, on enactment of the Bill, any applications that have not been decided under the said process will now be returned to the applicant with the applicant's fee. If the applicant wishes to proceed with the proposal, it must make a new application directly to the planning authority which will then be examined by the noise regulator for any potential noise implications as set out under section 11.
I move amendment No. 85:
In page 44, after line 37, to insert the following:“(2) The competent authority shall direct the airport authority to ensure that average noise exposure is reduced below 45dBL, and night noise exposure below 40dBL, such levels to be revised in accordance with WHO guidelines.”.
Mick Barry, Richard Boyd Barrett, Tommy Broughan, Pat Buckley, Joan Burton, Joan Collins, Michael Collins, Catherine Connolly, Clare Daly, Pearse Doherty, Danny Healy-Rae, Michael Healy-Rae, Séamus Healy, Brendan Howlin, Gino Kenny, Martin Kenny, Mattie McGrath, Denise Mitchell, Imelda Munster, Paul Murphy, Louise O'Reilly, Jan O'Sullivan, Maureen O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Willie Penrose, Thomas Pringle, Maurice Quinlivan, Brendan Ryan, Eamon Ryan, Bríd Smith, Brian Stanley, Peadar Tóibín.
Pat Breen, Richard Bruton, Catherine Byrne, Seán Canney, Ciarán Cannon, Marcella Corcoran Kennedy, Simon Coveney, Michael Creed, Michael D'Arcy, Jim Daly, Pat Deering, Bernard Durkan, Damien English, Alan Farrell, Frances Fitzgerald, Charles Flanagan, Simon Harris, Martin Heydon, Seán Kyne, Finian McGrath, Joe McHugh, Eoghan Murphy, Denis Naughten, Hildegarde Naughton, Michael Noonan, Kate O'Connell, Shane Ross, David Stanton, Leo Varadkar.