Phil Hogan (Carlow-Kilkenny, Fine Gael)

I am pleased to introduce the Environment (Miscellaneous Provisions) Bill 2011 to the Seanad. I am introducing this Bill in order to provide for a number of legislative measures, many of which are technical amendments, to existing legislation. As indicated in its Title, the Bill makes a number of provisions, including legislation to enable Ireland to ratify the Aarhus Convention; amendments to the Air Pollution Act 1987; amendments to the Waste Management Acts; essential amendments to the Planning and Development Acts; and changes to the placenames provisions of the Local Government Act 2001.

The Bill, as I have indicated, deals with a broad variety of issues, some of a technical nature. There are 6 Parts in the Bill which contains 49 sections, and I would like to refer in some detail to the main provisions.

Part 1 of the Bill contains the standard preliminary and general sections. Part 2 will enable Ireland to ratify the Aarhus Convention, which lays down a set of basic rules to promote citizens involvement in environmental decision-making. Commitment is pledged in the programme for Government to complete ratification and Ireland is the only EU member state yet to do so. With the Rio+20 conference on sustainable development scheduled for 2012 and Ireland's Presidency of the European Union approaching in 2013, it is important that ratification takes place as soon as possible.

The Office of the Attorney General has advised that a number of legislative measures are required before ratification can take place. These relate in the main to the access to justice pillar of the convention. They involve a modification of the costs rules associated with environmental court cases and a change to the threshold that applies to judicial review proceedings involving planning matters.

Part 2 of the Bill, specifically section 3, sets out a new costs rule that will apply in certain environmental court cases. Under this new rule, each party to the proceedings will pay their own costs. However, if the applicant is granted the relief sought or if the defendant is found to have breached a provision of environmental law, the applicant may have all or some of his costs paid by the defendant. If the case involves notice parties, they may also be required to contribute to the applicant's costs if the court considers it appropriate.

Additional provisions to apply this costs rule to certain other sets of civil proceedings are also included in Part 2 of the Bill. Furthermore, Part 2 also provides for a new measure that will require the Judiciary to take judicial notice of the convention as a whole and to have regard to its provisions in relevant cases.

Part 3 of the Bill amends sections 12 and 14 of the Air Pollution Act 1987 to support enforcement activities. Section 9 of the Bill provides for an increase in the monetary penalties under the Air Pollution Act. The original fine amounts have not been increased since the Act was first signed into law. The increased fines will serve as a much more effective deterrent and promote prosecutions for serious offences.

The new monetary amounts for minor offences are aligned with the bands of fines provided for under the Fines Act 2010. This improved system of fines is more consistent and practical as the amounts can be periodically updated centrally by the Minister for Justice and Equality to ensure that they retain their monetary value and consequent deterrent power.

Fines for conviction on indictment are being increased from £10,000 to €500,000, which is consistent with the maximum fine permitted for conviction on indictment in legislation providing for the transposition of EU directives, as provided for under Section 3 of the European Communities Act 1972. This will bring the monetary penalties for breaches of the Air Pollution Act into line with monetary penalties for breaches of EU environmental legislation.

Section 10 of the Bill provides for the introduction of a system of graduated fixed payment notices, formerly known as on-the-spot fines, for certain offences under regulations made under the Air Pollution Act. Regulations under section 53 of the Act provide for a ban on the marketing, sale and distribution of bituminous or smoky coal in certain urban areas and also set a maximum limit of 0.7% for sulphur content in bituminous coal for residential use.

The success of the smoky coal ban is a good example of the positive effects environmental legislation can have on our health and quality of life. While the ban has largely been effective, I am aware from our partners in local government as well as from members of the industry representative organisation, the Solid Fuel Trade Group, of some difficulties in the enforcement of the ban. There is also some evidence of a drop in sales of smokeless fuel over the past four to five seasons, while sales of bituminous coal have held up or even increased.

My Department has consulted extensively with local authorities on how best to support the smoky coal ban and to safeguard and, where necessary, improve air quality in our urban areas. The amendments to the Air Pollution Act contained in this Bill are part of the outcome of this process. The introduction of fixed payment notices will help to protect air quality in our towns and cities by supporting the enforcement of the smoky coal ban by local authorities. I intend to consult on further supplementary measures to ensure the continued effectiveness of the ban in the near future.

Section 11 of the Bill further supports enforcement activities of local authority appointed authorised persons when carrying out their functions under the Air Pollution Act or any regulations made under it. In cases where an authorised person is obstructed, or reasonably expects to be met with obstruction, he or she may be accompanied by a member of the Garda Síochána. This is consistent with existing measures in support of authorised persons under section 13 of the Environmental Protection Agency Act 1992.

Part 4 of the Bill amends the Waste Management Act 1996 to allow for greater flexibility in setting the plastic bag levy rate and the landfill levy rate. While it is not my intention to increase the existing levy of 22 cent on plastic bags at this point, I will be keeping the matter of setting the levy at an appropriate rate under ongoing review. To ensure that the plastic bag levy can adapt to changes in the consumer usage of plastic bags, greater flexibility is required in the setting of the plastic bag levy.

At the current time, amendments to the rate of the levy are limited to changes in the consumer price index. The level of plastic bag usage can fluctuate and in order to provide an effective mechanism to respond to these changes, I am introducing section 12 of the Bill, which provides that the ceiling be set at an absolute limit of 70 cent. This limit is designed to allow for increases to the levy for a number of years.

Section 12 also provides the mechanism by which the levy rate may be increased. It will allow the application of the consumer price index and a discretionary application of not greater than 10% in any one year, provided that the absolute ceiling of 70 cent is not exceeded. Any amendment to the rate of the plastic bag levy will be for the purposes of the prevention of the generation of waste and the reduction of the use of plastic bags. The existing power to amend the rate of interest charged on unpaid levies is to be removed.

Ireland continues to be overly dependant on landfill. We are still sending over 60% of our municipal waste to landfill. I am determined to ensure that the landfill levy acts as an effective deterrent against recyclable waste being sent to landfill and contributes to meeting our landfill directive obligations. Subject to the enactment of this Bill, I intend that the landfill levy will rise to €50 per tonne from 1 September 2011, €65 per tonne from July 2012 and €75 per tonne from July 2013.

Section 13 will amend section 73 of the Waste Management Act 1996 by providing that the levy may be increased once in any given financial year, subject to a maximum increase of €50 per tonne. It also provides for an absolute limit on the levy of €120 per tonne. In addition, section 13 also inserts similar provisions in relation to interest charged on unpaid levies as is already provided for under the plastic bag levy, namely, that interest on late returns is liable on a daily basis.

Section 14 introduces legislation to support payments to international organisations from the environment fund. This will underpin in primary legislation such payments, which are currently made under regulation.

Part 5 deals with amendments to the planning Acts. The Office of the Attorney General has advised that the insertion of a new Part into the Environment (Miscellaneous Provisions) Bill is urgently required to provide essential technical amendments to the planning Acts. The amendments do not depart from the policy intent behind the amendments made by way of the Planning and Development (Amendment) Act 2010. The amendments will enable the commencement of certain provisions in the 2010 planning Act which further implement the environmental impact assessment directive and the birds and habitats directives. Certain amendments are required to settle EU complaints against Ireland and so must be urgently commenced to avoid incurring EC fines.

I wish to provide an overview of the planning amendments included in the new Part 5. Sections 15 and 16 are standard definition sections. Section 17 is a technical amendment which restates the amendment to section 4 of the 2000 planning Act made by way of section 5 of the 2010 planning Act with required transitional provisions now included.

Section 18 amends section 13 of the planning Acts on foot of the transfer of the heritage function to the Minister for Arts, Heritage and the Gaeltacht and role of that Minister in varying developing plans. Section 19 is a consequential amendment to section 30 of the planning Acts on foot of technical revisions in this Bill to Part XAB of the planning Acts.

Section 20 amends section 50A of the planning Act to the effect that a court may now grant leave to apply for judicial review of planning applications, appeals, referrals and other matters where the applicant has a "sufficient interest" in the matter which is the subject of the application. Section 21 amends section 50B of the planning Acts which deals with legal costs in certain environmental matters. Sections 22, 23 and 24 are technical amendments to sections 57, 82 and 87 of the planning Acts to clarify that exemptions given in the planning regulations do not apply to works to a protected structure or proposed protected structure and, further, do not apply to works in architectural conservation areas or special planning control areas.

Sections 25, 26 and 27 provide technical amendments to sections 130, 135 and 153 of the planning Acts, respectively. Sections 28 and 29 provide technical amendments to sections 157 and 160 of the planning Acts. These new sections have the same policy intent as section 47 and 48 of the 2010 planning Act but provide clearer legal text.

Section 30 provides a technical amendment to section 170 of the planning Acts to correctly reference Part X of the planning Acts which relates to environmental impact assessment. Section 31 technically modifies the definition of 'candidate special protection area'.

Sections 32 to 36 are amendments to Part XAB of the planning Acts to reflect the transfer of responsibility for heritage functions to the Minister for Arts, Heritage and the Gaeltacht.

Sections 37 to 40 technically amends sections 181A, 181B, 182A and 182C. Section 41 amends the Seventh Schedule to the planning Acts to clarify the type of health infrastructural development that should be sent directly to An Bord Pleanála under the strategic consent process. Section 42 provides for the repeal of certain sections of the Planning and Development (Amendment) Act 2010 which required technical amendment through this Bill.

Part 6 deals with other miscellaneous provisions. The main elements are section 43 which provides for an amendment to the Third Schedule to the Freedom of Information Act by the addition to the Schedule of section 16 of the Air Pollution Act 1987 which relates to the non-disclosure of information. This means that information obtained by a local authority in connection with its enforcement of the Air Pollution Act will be brought within the scope of the Freedom of Information Acts.

Section 44 amends the Local Government Act 1998 to allow payments from the local government fund to the Minister for Transport, Tourism and Sport to be expended on all public roads, national, regional and local, and in the provision of public transport infrastructure. Given the current difficulties in the national finances it is important that we make optimal use of the finite financial resources available to Government. In this context, the proposed amendment will allow the Minister for Transport, Tourism and Sport discretion in the allocation of local government fund moneys within his responsibilities for national and non-national roads and the provision of public transport infrastructure. This will permit the effective targeting of investment to those areas of transport infrastructure of highest national priority.

Section 45 is a technical amendment to section 70 of the Environmental Protection Agency Act 1992. In practice the EPA already produces a state of the environment report every four years and the amendment will place this practice on a statutory footing to ensure that the legislation is entirely consistent with Article 5 of the Aarhus Convention. Section 46 repeals section 62 of the Waste Management Act 1996, a section which has never been used. Section 47 is a technical savings and transitional section.

Section 48 of the Bill provides for the substitution of a revised and updated Part 18 of the Local Government Act 2001 for the existing Part 18 dealing with placename provisions. Other than section 197, the remaining provisions of the existing Part 18 have not been commenced due principally to the difficulty of local government law and the Official Languages Act 2003 working in harmony. In the absence of commencement, the Local Government Act 1946, as amended, provides the relevant statutory framework.

The new Part 18 will restate large elements of the existing code but with significant changes and some new provisions. In an effort to streamline the legislation, it will provide that the placename provisions are contained within one section, as opposed to four sections of the 2001 Act. Any proposal adopted by a local authority to change a placename must specify the proposed name in Irish only or in English and in Irish; there will be an explicit requirement that any plebiscite held must be by way of secret ballot; and all proposals will require a resolution adopted by half of the members of the council.

The incompatibility between local government law and the Official Languages Act has been brought into sharp focus through the long running controversy in respect of the name of An Daingean, or Dingle, and the amendment will also look to resolve that particular problem in section 191 of the new Part 18. As Senators might recall, the official name of Dingle was changed to An Daingean by the Placenames (Ceantair Ghaeltachta) Order of December 2004 made by the Minister for Community, Rural and Gaeltacht Affairs under the Official Languages Act 2003.

As is well documented at this stage, the change in name has provoked a long running controversy with significant opposition locally based on a perceived lack of consultation prior to the making of the placenames order and the wish to preserve the name Dingle from a tourism perspective. A campaign was established to change the name of the town to Dingle Daingean Uí Chúis under the change of placename provisions of the Local Government Act 1946, as amended to which I referred earlier.

In September 2005, the Attorney General advised that the local government code may not be used to change the name of a place already subject to a placenames order, as in the case of An Daingean and this advice was notified to Kerry County Council which is the sponsoring authority for such a procedure under local government law. Notwithstanding the advice, the council proceeded to hold a plebiscite under the Local Government Act 1946, as amended, to ascertain whether the majority of qualified electors in the town consented to an application being made to the Government for an order to change the name of An Daingean to Dingle Daingean Uí Chúis. The proposal put to the electorate was carried overwhelmingly and Kerry County Council then resolved to apply to the Government to make an order under section 77 of the Local Government Act 1946 to change the name to Dingle Daingean Uí Chúis. However, in view of the earlier advice of the Attorney General, it was not possible to accede to the council's request.

Subsequent efforts by the previous Government to introduce legislation to deal with this issue were unsuccessful and I am, therefore, availing of the earliest possible legislative opportunity to undo the impact of the 2004 placenames order as it applies to An Daingean and to provide, in law, that the name of the town in the English language will be Dingle and in the Irish language will be Daingean Uí Chúis.

Of more general application, as I have already mentioned, the proposals before the House today provide a more coherent, modern and streamlined set of procedures for the changing of placenames. They allow for greater recognition to be given to the Irish language generally when placename changes are proposed and they set responsibility for this function at local level, where it should properly reside.

This Bill reflects the Government's intention to address at the earliest opportunity, a range of pressing issues within the remit of my Department. I want to make progress in a number of areas where uncertainty has too long prevailed. I am providing certainty in terms of the landfill and plastic bag levies, I am dealing with the ratification of the Aarhus Convention, and I am addressing the long-running issue of placenames.

I look forward to the co-operation of Senators in facilitating the passage of this Bill, to the contributions of Senators to the debate and I commend the Bill to the House.