Monday, 28 November 2011
Water Services (Amendment) Bill 2011: Report and Final Stages
Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded.
I welcome the Minister for the Environment, Community and Local Government, Deputy Phil Hogan, back to the House. We begin with amendment No. 1, which arises from Committee Stage proceedings.
I move amendment No. 1:
In page 3, lines 22 and 23, to delete all words from and including " "or" in line 22 down to and including "section 70E" " in line 23 and substitute the following:
" "or an inspector appointed from within the agency staff" ".
This issue was debated on Committee Stage. The amendment seeks to make the section concise and brief in its intention. I will be succinct. The amendment seeks consistency with reference to the agency staff who will carry out the inspection. The Minister gave a helpful explanation during our previous discussion and explained that these people would have to be qualified architects or engineers. He also explained that the staff who carry out the work may not necessarily be local authority architects or engineers but that there might be a panel from which the local authority would choose a qualified person.
The Minister may have clarified what follows on that, but I want to clarify it for myself. Whether it is a member of staff or inspector who does the inspection, who will pay for it? Will it be the client, the landowner or someone else? Currently, if a citizen, an auctioneer or a solicitor seeks to ascertain information, when, for example, a roadway or pathway is taken over, the charge is €100. The Minister may not have the answer, but what does he envisage will be the cost of such a letter from a local authority confirming that an inspection has or has not taken place? I have a concern in that regard. If an engineer or architect inspects the septic tank, soakpit or waste water treatment set-up on a particular site, who will pay the inspector for the visit and who will pay the local authority for the confirmation that an inspection has taken place and the system is satisfactory or otherwise?
The amendment is fairly succinct and brief, but I would like some clarity on issues that were not clarified fully on Committee Stage.
On the amendment, the question of staffing is very important, particularly the utilisation of council staff. The Minister has pointed out that he accepts the principle, although this may not be the main point here, of the use of the agency or council staff. I am keen on the use of council staff because they are the people who know what is happening on the ground. Will the Minister respond to that proposal?
I am glad to clarify the position. The only charge under this legislation is the €50 registration charge to cover all administration and inspection costs. That is the information sought by Senator Denis O'Donovan.
It does not appear that obvious or straightforward, although the Minister's intention may be correct. I can write to my local authority in the western division of Cork County Council. The Minister might also clarify an issue concerning the three divisions of Cork County Council: southern, western and northern. I assume each of them has a register for registration purposes. It sounds extremely reasonable, if what has been said is correct. I can write to the county council to say there is a small estate in the village of Ballydehob and I wish to check that the roads and footpaths there are in order. Up until three to five years ago there was no charge for making such a request and there would have been a response yes or no. Now, however, before the county council will respond, it requires a payment of €100. I find this too good to be true, although I will not tempt fate. I accept what the Minister has stated, namely, that after the registration fee is charged, there will be no further fee. If that is the case, I must accept his word. It sounds extremely reasonable.
I know I have disappointed many by doing this so cheaply. There was a big hoo-hah during the summer months, which continued even up to the other night, with Deputy Ó Cuív. We seem to be finding it difficult to get through to people. The only charge I have in mind is the €50 fee to register. There will not be any other charge to cover administration or inspection costs.
The Seanad Divided:
For the motion: 22 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, Aideen Hayden, James Heffernan, Lorraine Higgins, Caít Keane, Denis Landy, Maire Maloney, Tony Mulcahy, Michael Mullins, Pat O'Neill, Tom Shehan, John Whelan)
Against the motion: 11 (Thomas Byrne, David Cullinane, Terry Leyden, Paschal Mooney, Trevor Ó Clochartaigh, Brian Ó Domhnaill, Denis O'Donovan, Ned O'Sullivan, Kathryn Reilly, Jim Walsh, Diarmuid Wilson)
Tellers: Tá, Senators Ivana Bacik and Paul Coghlan; Níl, Senators Ned O'Sullivan and Diarmuid Wilson..
Question declared carried.
I move amendment No. 1a:
In page 3, between lines 24 and 25, to insert the following:
"4.—The Principal Act is amended by inserting after section 8(4) the following:
"(5) Where a member of the Garda Síochána, or an appointed person for the purposes of this Act, finds a person and has reasonable grounds for believing that such person is committing or has committed an offence to which section 70(10) applies, the member may deliver to such person a written notice stating—
(a) that such person is alleged to have committed that offence, and is liable to summary conviction,
(b) that such person may, during a period of twenty-one days beginning on the date of the notice, make to a member of the Garda Síochána at a specified Garda Síochána station a payment of the fine accompanied by the notice,
(c) that a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice, or, if the payment specified in the notice is made during that period, at all."."
Ba mhaith liom an leasú seo a mholadh go hoifigiúil. Nílim chun scéal fada a dhéanamh as seo, ach go bunúsach séard atá muid ag iarraidh ná go gcuirfí an béim ar an údarás scríobh chuig gach duine a bhfuil dabhach shéarachais acu le cur in iúl dóibh go gcaithfidh siad clárú.
This amendment proposes that instead of everybody having to make the initial application himself or herself, the onus should be on the water authority and that it should have to write to everybody on the list as having a house. I imagine there will be scenarios where older people or people who do not watch the television might not pick up on an advertising campaign, etc. Initially, the local authority-water authority should be asked to send some form of notification to every householder to ask if he or she has a septic tank and so on. One should not expect the citizen to apply immediately. Sin an moladh go bunúsach.
I second the amendment and repeat the points made. We are asking the Minister to show common sense, about which he spoke the last time he was here, that the local authority or the water authority write to each household. There must be records in all planning offices of septic tanks which have been installed. This is to ensure that everybody is informed in writing that he or she must register. It is a reasonable request and I hope the Minister will accept the amendment.
I expected the Minister to table an amendment on this Stage in regard to one application being sufficient for one or two septic tanks. It may not be applicable to this amendment but the Minister said that where a house has a granny flat and another septic tank had to be installed, one application would suffice. I do not expect one application to be sufficient for three septic tanks. I have not come across a house with three septic tanks but I have come across houses with two septic tanks. Is the Minister considering tabling an amendment in the Dáil or will he table a verbal amendment here which would deal with this issue effectively?
What is the position if a landowner has a septic tank, a waste water treatment plant or a percolation area on his land but there is no house on the land? Is the landowner responsible? I have come across an instance where, 30 to 40 years ago, the person who built the house was allowed put the percolation area or the septic tank on a neighbour's land, but the situation has since changed and there is no co-operation. The septic tanks is on Mr. X's land but Mr. Y owns the house. Who is responsible? I presume it is the landowner because he will not allow the man who owns the house to go in and desludge it or fix it. It is a moot point.
The legal responsibility for a septic tanks lies with the householder or the landowner and not the local authority. In law, that is the only way it can be applied and the reason I cannot accept the amendment.
We are quite worried that it leaves the onus completely on the owners, some of whom will be well able to understand that but there might be a lot of people who will not. I am not sure what the information campaign to indicate to people what they must do will be. We would have expected that it would have at least included a letter from a local authority to anybody with a septic tank.
I understand that there could be some confusion and that is why we will have a very extensive campaign. There has been so much misinformation about this issue that I must have one.
I move amendment No. 6:
In page 5, to delete lines 22 to 24 and substitute the following:
"(5) A certificate of registration shall be valid for the lifetime of the property or not less than a period of 40 years from the date on which it was issued.".
It is disappointing that the other amendments have been ruled out of order, as they would have allowed the Minister to use the Bill as an opportunity for householders by providing a stimulus package through the introduction of a grant system in respect of desludging. This would have created jobs, but there appears to be a lack of interest in going down that road.
Amendment No. 6 has been returned to the list of amendments. We discussed this matter on Committee Stage, when the Minister indicated a willingness to consider extending the five-year re-registration period. We are proposing that the period coincide with the lifetime of the property or last 40 years, whichever is shorter. If the period is five, six, seven or eight years, there inevitably will be re-registration fees. In addition, a registration certificate must be issued to the property and conveyancing issues will arise. For example, if a certificate of registration runs out in 2014 and one wishes to sell one's property at the end of 2013 or the beginning of 2014, the value of the property will be affected, as will the due diligence search in which the solicitor will engage. The Minister deliberated on this matter over the weekend. Has he a suggestion on how to get the result our amendment is trying to achieve?
I second the amendment. Respectfully, I must continue asking the Minister about the amendment on the number of tanks per house, be it one or two. During our previous debate, the Minister stated that it would have been a reasonable amendment and I expected him to table a similar amendment today. I cannot table it again, but perhaps the Minister could table an amendment verbally. The Cathaoirleach might guide me.
I thank the Minister. This issue relates to local authority houses. What is the position? Given the number of people who brought it to my attention over the weekend, many are concerned about the Bill. Today, a widow told me how afraid she was about this charge being applied.
The 40 years are important. We should get my colleague's wonderful amendment out of the way.
Where does the Minister stand on local authority housing under this Bill? Is the local authority as the owner responsible for the €50 charge or is it the tenant? He should consider this question.
I support the amendment. In fairness, the Minister stated during our previous debate that he would reflect on the issue. I hope he will decide that it would be worthwhile if some of the amendments tabled in the Seanad were accepted in this Chamber as opposed to elsewhere. I am informed by a prominent and well thought of back bench Fine Gael Deputy that the Dáil will make amendments that would revert to us on Christmas week.
If a septic tank is registered, it should be a single registration for good and glory and one that attaches to the property. It should be registered in the Land Registry as a burden and should not be attached to the person. People move on, die, sell their properties, etc. Senator Ó Domhnaill asserts that there should be only one registration. I would be grateful if the Minister understood the Seanad's plight and was gracious enough to accept some of our amendments.
In a previous debate, the Minister stated that he would re-examine the question of re-registration. Instead of requiring all 400,000 owners to re-register, it may be better to put the obligation on owners to inform the water authority if changes are made to their systems. Contrary to what the Minister stated, no one is chasing shadows around corners. We are not concerned about a charge on the owner of the system. Rather, we are concerned about the administrative cost to the State of asking all 400,000 owners to re-register every five years. Only a small percentage of the 400,000 owners will carry out changes. The initial registration should clearly prescribe which changes will necessitate an individual informing the water authority of them. These works would be entered into the tank's record and would negate the need for all 400,000 to re-register. We hope that, as he said he would, the Minister has considered this issue in a positive way.
This is not like an NCT. It is a registration of a tank that presumably will be in place for a long time. I am unsure as to whether the requirement that it be re-registered every five years can be found anywhere else in the State's systems. One does not need to re-register property with the Land Registry every five years, although one might need to approach it if there is a mortgage, sale, etc. This will incur a large administrative burden. While I support my colleague's amendment, he could probably do the same job by deleting the line in question. The presumption is that, if something is registered, it is registered and that should be the end of it.
The Minister went a long way to explain his position on this issue on Committee Stage. He pointed out that changes to a household could necessitate changes to its septic tank, for example, extra chambers, an additional percolation area or an increase in the percolation area. I understood this to be the thrust of the Minister's argument. If changes are made to the system subsequent to registration or an inspection - being in compliance is not the issue - and the householder decides to embark on the changes that the Minister claimed would necessitate a five-year rule if they are to be recognised, will the householder be liable to seek planning permission for any change to his or her residence? That is the question. If they require planning permission for any changes that necessitate changes to the septic tank, will the information be registered by the local authority? That would require re-registration. The argument was that this was to take account of adjustments made in that period. The amendment refers to 40 years but, in light of the discussion on this point and the Minister's acknowledgement that it is an issue, I ask the Minister to give us his views on whether five years is too short.
There are other forms of registration, such as the NCT, drivers' licences and passports. They must all be re-registered periodically and a fee is charged for it. In this case there will not be a re-registration fee. It is not contemplated at this point. The reason for the re-registration requirement is advances in technology with regard to the treatment of groundwater. If there are changes in the way households treat groundwater or effluent, there will be a requirement to inform people on a periodic basis that this has happened. This is in line with what happened in Cavan, which is an excellent example. As the information and new technology became available and new practices developed, people in the local authority were able to take advantage of it and the level of inspections reduced to 11%. I gave serious consideration to what we could do to advance the period of five years and I had discussion with people from the legal side of our Department in the context of the European Court of Justice judgment. I am obliged to continue with the five-year period because of this. I am doing so on the basis that they will not be charged for it and on the basis that there will be no administration or inspection charge and no re-registration charge. There will be just one fee.
The owner of a local authority house is the local authority and the onus is on the owner, so the local authority pays the registration charge for that and a tenant does not pay the registration charge in this case.
Senator Thomas Byrne had plenty time to speak during 11 hours of debate last week. The information on any subsequent adjustment will be triggered by the re-registration process. Do I misunderstand Senator Mooney's point?
This is another crazy example of legislation where local authorities are charging themselves. Why is there not a provision in the Bill that no fee is charged to local authority houses and all houses? We will end up with people pushing pens around desks to send out receipts to get the money back. They are charging themselves and it does not make bloody sense. This will take up time, resources and postage costs. We wholeheartedly disagree with any fee being imposed. There should be no fee imposed for any registration.
I do not buy the idea that there will not be an increased fee, not to mention the fee of €50, at the re-registration stage. The Minister is giving himself sweeping powers under section 70(l), whereby, by regulation, the Minister can introduce any such measures he wishes. It may not be prescriptive but the Minister is giving himself powers in this Bill,under section 70(l), to reintroduce the re-registration free and to increase the €50 fee to a sum of €200 or €300, which he was originally thinking of.
This Bill is riddled with legal loopholes that will be very good for solicitors in terms of conveyancing and court cases. A point raised during Committee Stage and relevant to the debate on this section is where the septic tank is on a third party property where no formal wayleave has been granted. Who has a legal responsibility in that case?
The Seanad Divided:
For the motion: 24 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, Aideen Hayden, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, Denis Landy, Maire Maloney, Tony Mulcahy, Michael Mullins, Catherine Noone, Pat O'Neill, Tom Shehan, John Whelan)
Against the motion: 12 (Thomas Byrne, David Cullinane, Terry Leyden, Paschal Mooney, Trevor Ó Clochartaigh, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Ned O'Sullivan, Kathryn Reilly, Jim Walsh, Diarmuid Wilson)
Tellers: Tá, Senators Paul Coghlan and Denis Landy; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.
Amendment declared carried.
Amendments Nos. 8, 13, 31, 60, 70 and 72 are related. Amendment No. 61 is an alternative to amendment No. 60 and amendment No. 71 is an alternative to amendment No. 70 so amendments Nos. 8, 13, 31, 60, 61, 70, 71 and 72 will be discussed together by agreement.
I move amendment No. 8:
In page 6, to delete lines 46 to 48 and substitute the following:
"(12) A person who fails to comply with a request under subsection (11) within 10 days, shall receive a warning notification and must produce within 90 days.".
Táimid ag bualadh leis an leasú moltach seo. We were just looking at the time allocated being ten days for someone who fails to comply with the request under subsection (11). We felt this was unreasonable and impracticable in the circumstances. People who write to a Department would rarely receive a reply within ten days. To expect citizens who fail to comply with the request under subsection (11) to have replied in all cases is quite unreasonable so we want that period to be extended to 90 days. A person who had not complied would be issued with a warning and given 90 days to comply. Taking the case of a family bereavement, it would be unreasonable to expect people to have dealt with things within ten days. People could be on holiday or working away fro home so the ten day period is not a good idea.
The other issue that we raised repeatedly is that non-compliance with this Act will be an offence. Sinn Féin does not agree with the criminalisation of someone who is not in compliance with the Bill. Nothing the Minister said last week changed our opinion on this. The Bill should be changed so that someone who does not comply does not get a criminal record. We do not want to rehash the arguments but we pointed out that work could be done by a shoddy builder or the tank could be on someone else's land; we made numerous arguments. The Minister clarified that the owner of the tank at the time will be liable for whatever work is done. Also, in the context of our not yet having even the specifications that are supposedly to be adhered to as part of the Bill, it is hard for us to support the Bill and that is why we have tabled these amendments on committing an offence.
I second the amendments. As things stand, a period of ten days is permitted. That is an unreasonable timeframe because it has been stated in this House repeatedly that people who apply for benefits or who make contact with State agencies very rarely have the applications processed in ten days. Ten days is a short period and a person could be sick and not in a position to do administrative work. The 90 days notice period would deal with that. This is a reasonable request from Sinn Féin. We hope the Minister will accept.
There are also a number of amendments on the removal of the word "offence". We have difficulties with people who would find it difficult to carry out remediation work or who do not have the financial means to do it. There should be penalties but to leave someone with a criminal record on the back of this is a matter of concern to us. There are consequences for people with a criminal record. There was a good discussion lately in this House with the Minister for Justice and Equality on many minor offences where the State is considering community service instead of custodial sentences. The Minister for Justice and Equality was aware of issues in this regard broadly but we want to deal specifically with this Bill. We are concerned that people will be criminalised by the outworking of this Bill.
We hope the Minister will respond on the first issue in a positive way.
The amendments nearly all relate to committing offences under the legislation. Ten days is far too short a timeframe and it should be pushed out. We argue that it should be almost a year and people would be given a long period to carry out any substantial works that might be required only after grant aid of at least 85% was made available and this would be done in a voluntary capacity where it would not be an offence not to do it.
The Minister mentioned on Second and Committee Stages that the offences are in the principle Act and that is correct. That Act was passed at a time when massive amounts of waste were being dumped, often by large developers and businesses, polluting the countryside. It cannot be said the same should apply to septic tanks just because it is in the principal Act. It does not currently apply to septic tanks in the production of certifications. Under section 70(b), it will be an offence-----
Yes. If a person cannot produce a valid certificate of registration or impedes, obstructs or blocks an inspector from coming on to a property, it is categorised as an offence under section 70(g) and where a person fails to comply with an advisory notice under section 70(h), it is also an offence. There is also a duty of care to bring septic tanks up to standard. We do not even know what those standards are, although we learned from a programme last night that agreement has now been reached between the Department, the Minister and the European Commission on the level of maintenance standards to be applied. If that is the case, where is the legal documentation pertaining to the agreement? If there is no legal agreement in place, perhaps the Minister will clarify the issue because it will also relate to offences. We are totally opposed to the introduction of offences to force people to comply with this legislation. The Bill should have been written on an incentive-led basis, with people being given an incentive to upgrade their septic tank systems, which might even add value to their properties. It should have been done on a stimulus basis, with up to €2.7 billion being made available under a retrofit grant scheme. The Minister is going the wrong way about it, and we cannot agree with a Bill that criminalises people who do not comply with it by making it an offence. Very many people will not be able to comply because financially they will not be in a position to do so. Many people are struggling coming up to Christmas. We oppose this.
I would like to speak on amendment No. 8 in the name of Senator Ó Clochartaigh. He has a point in this. I did not speak on some of the amendments because they were so repetitive and spurious that I did not think it worthwhile, but on this one it is worthwhile, because ten days is a very short time for a person to send a certificate of registration by post. I ask the Minister to reconsider this. I will not speak on the rights and wrongs of fines because that is not to do with this amendment. If we stick to the amendments-----
I support amendment No. 8. There is merit in the amendment, and this has been acknowledged by the Fine Gael spokesperson also. Before I make my points, I endorse a comment by Senator Ó Domhnaill. I also listened to the Minister last night and I took some comfort from the fact that there is an agreement on maintenance with the European Union. Is that in writing? That question was asked, but I do not recall it being answered on last night's programme. If the Minister could confirm that, and, in any event, confirm the details of the agreement to the House, it might reassure people.
To return to the issue of the provision of a valid certificate of registration, I genuinely think ten days is far too short, and I support the amendment. If we consider, for example, that people in the private sector take two weeks' holidays together, which generally go beyond ten days - in the public service it is not unusual for people to take four weeks at the same time, so they would in fact be gone for 28 to 30 days, often out of the country - we can see that common sense must apply. A person should not be deemed to have committed an offence after such a short period. There is no reason the time allowed for the production of a valid certificate should not be commensurate with the practicality that can arise. Therefore, 90 days is not unduly long. We could maybe go for something less than 90 days, but anything less than 30 or 40 days would be too short and there would be practical difficulties with it. I ask the Minister to acquiesce to this amendment.
There are 70 or 75 amendments tabled for Report Stage. I have always taken the view that while Ministers may not accept some amendments, it is unlikely that within 70 or 75 amendments there are not a small number that have at least some merit. This is one of those amendments.
With regard to the time limit of ten working days in which people must produce proof of registration, I am prepared to consider this in the other House, but the number of days to which we can extend it must be considered. We might be able to make progress on that in terms of its implementation.
With regard to the concerns of Sinn Féin and other Senators about the use of the word "offence" in the Bill, I do not know what else one could call it. Not registering a septic tank is an offence that carries a fine of up to €5,000. The only offensive part of this is the phrase "up to €5,000". The maximum penalty for an individual is €5,000. There is no provision for imprisonment of persons who commit an offence under the legislation.
The fine is not an indictable offence; therefore, it is not a criminal offence.
Senator Walsh mentioned maintenance. That is a matter for regulations, as the Senator knows. Every Bill-----
I have already told the Senator about the significant measures that have been taken with regard to planning exemptions. Deputy Ó Cuív learned a great deal last night as well.
For Senator Ó Domhnaill's information, I inherited, on becoming Minister, 31 European Court of Justice judgments against our country, of which this is one. If they are not dealt with, €26,000 per day in fines will be imposed, which will affect every taxpayer here. That is the legacy I inherited from the Deputy's party in government.
I came to the conclusion a while ago that the Senator is anti-environment and is not prepared to implement proposals that deal with problems that result in damage to public health and to ground-water, unlike my friend Senator Wilson, who supports the measures that were taken in Cavan, where an excellent job was done.
It may come as a surprise to the Opposition to know that Ireland has a serious problem with the European Commission because of environmental complaints, thanks to its record in government. I am doing my best to clean up our act, literally.
I thank the Minister for taking into consideration our constructive proposal and I thank Senator Keane for supporting it, as it is important. We suggest that 90 days is a reasonable amount of time. I also thank the Minister for his clarification that failure to register will not be a criminal offence, although whether that will follow through the full legal system is unknown. Somebody may end up in prison eventually for not paying those fines.
There is no inability-to-pay clause anywhere in this Bill which would apply if a citizen was in negative equity or in circumstances in which he or she could not pay even if she wanted to. We are opposed to anyone ending up in prison as a result of this process. The State should back people up. If we are able to pay €26,000 a day in fines to Europe, surely we should be able to help citizens who are strapped for cash. They in particular should be helped out in this situation and we should make sure nobody ends up in prison.
We will take in good faith what the Minister has said about amendment No. 8, although we will talk to our cohort in the Dáil and we expect this amendment to be taken into consideration there. For that reason I will withdraw amendment No. 8.
I move amendment No. 10:
In page 7, between lines 10 and 11, to insert the following:
"(c) that if it can be shown by reference to the owner of the domestic waste water treatment system's income, that they do not have the means to pay the fine, in the opinion of the inspector, that the fee be waived;".
The amendment is related to the point I have just made. There was a lot of debate last week, but a fair amount of it was fruitful, as we got to tease out many points. We noticed in the debate that there was no waiver system or inability to pay clause in the Bill. We considered that it was important that it be put in place because of the dire straits people were in financially and the extra expenses that had to be taken into account such as the universal social charge, the household charge, water and refuse charge. Many of the common people will be forced to pay these charges.
Many Government Senators have said €50 is not a lot of money. I have been talking to people over the weekend who are very concerned about it. I was contacted by people who were concerned that the mooted cuts to child benefit and other benefits would, if made, seriously affect them. The cut may not seem significant to those on a better income, but it is a serious consideration for those on very low incomes who are very worried about the extra cost, even if it is only €50.
It is feared the €50 charge could increase to €200 and that re-registration fees could be introduced under regulations. We have, therefore, tabled what we believe is another practical amendment that would allow for a waiver if one could actually show that, as the owner of a system, one did not have the means to pay the money involved. I urge the Minister to take it on board.
I second the amendment. As a point of principle, every State charge should be income linked and based on ability to pay. I have often heard it said, including before my election to this House, that politicians sometimes live in ivory towers and do not understand what circumstances are like for some. Although the charge is €50, the Minister will agree that, for many households, it represents a lot of money, even if it is a one-off charge. In this regard, consider the plight of a household in which both parties have lost their jobs and simply do not have financial means, or are struggling on social welfare. We are looking for a waiver system to protect the less well-off. We are opposed to the charge in any case and do not believe it should be in place. However, if the Minister is to proceed with it, the very least he should do is ensure it is income linked and that those on very low incomes and welfare will not be subject to it.
If the charge is not a revenue-raising measure, which I accept in respect of this amendment, the idea of a waiver would be consistent with the system that generally applies in local authorities with regard to waste collection, for example.
We have done it locally. We exempted old age pensioners during the years in which I was a member of my council. The rate was 50% for old age pensioners at one stage.
While €50 may not seem enormous if one is working, depending on one's outgoings, it may be for somebody who is to be hit with a medical card charge and a charge of €100 for his residence. It is the accumulation of individual charges that gives rise to-----
All I am saying is that where people are in genuine financial difficulty, there should be a waiver system in place. I support the amendment on the basis that if it is not accepted, people may decide, simply because they do not have the financial resources, to avoid paying the charge by not registering. This is less desirable than having a waiver scheme. I suggest that we consider allowing the local authorities to apply a waiver scheme.
On one level, it may appear to be a good idea to have a waiver system, but I do not agree. The Oireachtas Library & Research Service states it is not clear whether the fees will even cover the cost of implementing the scheme. There is no extra money available. This morning I found in a press €50 that I did not know I had and I was elated. It is a lot of money, but, as I keep saying, a doctor's bill costs a lot more over a long period. There is no price on the health of the people. Surely those who come from areas such as Galway which experienced an outbreak of cryptosporidium and polluted watercourses will be aware of my point. Irrespective of EU directives and penalties, we must do something for ourselves. A sum of €50, while it may be a lot of money, is worth it in health terms in the context of a payment of €10 per year for five years.
The problem in Galway was mostly attributable to urban wastewater rather than septic tanks. This point represents the nuts and bolts of the legislation. Wastewater from urban sewerage schemes throughout the country is running straight into rivers. When the systems fill up, local authority staff open the doors and let the contents flush out into the sea. I know of at least five towns in which this occurs.
We support the amendment on the basis that we fundamentally disapprove of any registration fee. We do not understand why there ought to be a registration fee. All the local authorities have all of the relevant information already.
I cannot understand why the local authorities cannot tabulate the information without the need for a registration system. Perhaps the Commission would be more than happy if that work was being undertaken. If the fee is introduced, there should be a waiver. The Minister mentioned that there would be no fee attached to an individual living in a specific-instance local authority cottage in the countryside and that the cost would be carried by the local authority. What about medical card holders?
There was not even a Cabinet meeting. Senators were speaking about ivory towers. People have been living in ivory towers over the past several months in regard to this legislation. Misinformation has been spreading around the country. Senator Ó Domhnaill is citing a figure of €300 per annum.
No, it is where Deputy Ó Domhnaill started out. He should not blame me if he spreads false information. He continues to perpetuate it. People are paying for services rather than paying more taxes on work. That is the way we are going. This legislation prioritises environmental compliance in line with the European Court of Justice. People will have to pay a modest charge. Nobody is saying that money is plentiful but a modest charge is required to cover administration and inspection costs. We will not impose a charge for re-registration. That is the position today in regard to the €50 charge. Local authorities will, generally speaking, be able to manage within the budgets arising from this registration charge and they will be able to conduct free inspections and issue the various paperwork associated with implementation of the judgment of the European Court of Justice. I do not believe a waiver is appropriate at this stage.
We are disappointed that the Minister refuses to take on board our suggestions. The Ombudsman has intervened in regard to the waste waivers that have been introduced by some county councils but not others. She believes it would be preferable to implement a national policy on waivers. This is why we suggest this should be introduced at a national level.
We completely disagree on the financial situation. There is disconnection with the people in the community in terms of the impact of a €50 charge. I agree with the Minister that there has been widespread speculation about the various charges arising from this Bill but we have been consistent on this from day one. We do not believe the ordinary people should have to pay an extra charge. This is a form of double taxation. It is unfair on people in rural areas which are partly covered by group or local authority schemes. One house in a village will have to pay the charge while the neighbouring dwelling avoids it. The people of these areas have paid their taxes and they expect a basic level of service. They have paid development charges to their local authorities for these basic services.
The Minister has stated on numerous occasions that the Bill is not a revenue generating exercise. If that is true, it is strange that he cannot take on board the suggestion of a waiver. People in receipt of social welfare or family income supplement should be considered for a waiver because they cannot afford even a €50 charge at this stage. I have been contacted by constituents who were in tears over the proposed cuts to their incomes. We are told that the decisions on the budget have not yet been taken but a wealthy elite here are still making an awful lot of money.
With respect, the amendment refers to cases in which people do not have the means to pay the fine. I am speaking about the ability to pay the fine. In the current economic situation people do not have the means to pay but the Government is disregarding this factor. We will press the amendment.
The Seanad Divided:
For the motion: 13 (Thomas Byrne, David Cullinane, Terry Leyden, Paschal Mooney, Rónán Mullen, Trevor Ó Clochartaigh, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Ned O'Sullivan, Kathryn Reilly, Jim Walsh, Diarmuid Wilson)
Against the motion: 24 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, Aideen Hayden, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, Denis Landy, Maire Maloney, Tony Mulcahy, Michael Mullins, Catherine Noone, Pat O'Neill, Tom Shehan, John Whelan)
Tellers: Tá, Senators David Cullinane and Trevor Ó Clochartaigh; Níl, Senators Paul Coghlan and Denis Landy.
Amendment declared lost.
I move amendment No. 11:
In page 7, lines 20 and 21, to delete "ensure that the system does not constitute" and substitute the following:
"make a practical effort to ensure the system does not constitute".
Both amendments relate to section 70C which deals with the duties of owners of premises connected to domestic wastewater treatment systems. Instead of compelling the owner of the property to ensure the system is not likely to constitute a risk to public health or the environment, amendment No. 11 proposes that the owner of the property would make a practical effort. We have not seen the regulations defining the required percolation area. We are led to believe there may be a legal agreement between the Commission and the Minister, but if there is, I still do not have clarification on those standards. If an individual is expected to increase the percolation area and does not have the land to increase the percolation area to whatever the new standards might be and if we want to keep tomorrow's water safe, the new standards would need to be on the lines of the 2007 Commission proposals or the 2009 EPA proposals. If the Minister introduces regulation for a weaker maintenance standard, all the NGOs will appeal to the Commission and we will end up in court again. We want the insertion of the term "practical effort" because a person cannot be expected to increase the percolation area without the land.
Amendment No. 12 proposes to delete lines 28 and 29, "(iii) adversely affect the countryside or places of special interest". The proposed new section 70C(1)(b)(iii) specifies that the owners of premises shall make sure the treatment system will not "adversely affect the countryside or places of special interest". This provision is as wide as it is long. It is very broad and Fianna Fáil cannot support the insertion of these two lines without an exact definitive breakdown of what is meant by them. The word "countryside" could mean anything. As for the phrase "places of special interest", one can only assume it would be a special area of conservation, SAC, a special protection area, SPA, a natural heritage area, NHA, or a wetlands area. Last week on Committee Stage the Minister indicated that no planning permissions, environmental impact assessments, screenings or ecological reports would be required. He also gave an assurance that were someone obliged to upgrade a septic tank, none of these criteria would be required to be met. The presence of the phrase "places of special interest" suggests this includes SPAs and NHAs. However, Fianna Fáil cannot support the broad-brush approach reflected by these two lines as it believes the legislation should include a definition.
I second the amendment. Not only does Fianna Fáil not support this provision, but there is no way the Constitution supports such a vague criminal offence. It will be an offence to "adversely affect the countryside". The Minister should get his legal advisers to check this again before the Bill is passed because the President would be well within his rights to put it before the Supreme Court. How could anyone be guilty of the offence of "adversely affecting the countryside"? It is essential that this provision be deleted because it is not possible. Can any legal or sensible Members on the other side of the Chamber not agree? How did the Attorney General pass this provision? I cannot believe it went before her, as it cannot be an offence to adversely affect the countryside. The Minister should respond to this point. At the very least, the provision must be deleted, but I consider the proposed section 70C(2) to be utterly unconstitutional.
Sinn Féin supports the general thrust of the comments made by the previous speakers. I seek clarification on the statement made. I had envisaged there might be a Government amendment to this provision because the Minister made a statement last week when questioned about SACs, NHAs and SPAs. Members made the point that considerable worry had been expressed regarding houses that had been built in areas subsequently designated as SACs, NHAs or SPAs. The concern was that householders would be in trouble were they then obliged to upgrade their septic tanks. A commitment was made by the Minister last week and it certainly does not sit well with section 70C(1)(b)(iii). Therefore, Sinn Féin supports the amendment in that regard.
Sinn Féin also supports the amendment to section 70C(1)(b) to the effect that a practical effort be made in order that it would not "constitute ... a risk to human health or the environment". One point Sinn Féin has been trying to push throughout the debate on the Bill is that, to an extent, it is draconian. It is highly proscriptive in respect of the obligations on citizens, but it provides the Minister with great breadth regarding the regulations he or she might introduce in the future. This provision is another instance of this with which Sinn Féin cannot agree.
I revert to amendment No. 11 and again make the point that Members previously had a lengthy discussion with the Minister on what was the intention. For example, was the intention to inspect the system or the water discharge coming from it? The Minister stated it was to test the system, which is fine, but part of the problem might pertain to the percolation area. Members are aware that there have been a number of shifts with regard to standards for testing in development plans and within the Environmental Protection Agency. There have been instances in which people whose planning permission on land had elapsed after five years were obliged to reapply for permission and perform another percolation test. While the application may have passed the percolation test in the past, it fails the second time. The problem then is such persons may be obliged to install more expensive filter systems, raised percolation beds and so on. What will happen in cases in which planning permission was granted 30, 40 or 50 years ago, at which time there was no difficulty with the percolation area because it met the standards of the day? What will happen in respect of Senator Ó Domhnaill's example of the problem resting with the percolation area because a house was built on a very small parcel of land? It will create difficulties if it is impossible to remediate the problem without encroaching on someone else's land.
Amendment No. 11 allows for some flexibility by stating, "make a practical effort". This is a reasonable proposal because while these situations are hypothetical, they will arise. As the Minister has stated his intention is to ensure the State is in compliance with the European Union directive and the systems are operational, the entire system also must involve the percolation end of the process. If the fault lies there, it could cause a problem in the context of people's ability to remediate. This is the point being made and the reason I support strongly the amendment tabled. I ask the Minister to respond to the points raised.
The intention of the legislation is to ensure the owner of the system does not constitute a risk to human health "and, in particular, does not ... create a risk to [the] water, air or soil". Senator Brian Ó Domhnaill's amendment proposes to substitute this with the phrase, "make a practical effort". That is tantamount to saying it will be all right on the night and that while one will bring forward a few laws stating people must make an effort to do this, they really will not be so obliged. This might be how legislation was envisaged long ago, whereby laws were introduced but people only needed to try to make an effort.
I support the amendment tabled by my colleague, Senator Brian Ó Domhnaill. To be guilty of an offence under section 70C, one must contravene paragraph (a), (b) or (c) of subsection (1), which is substantial and significant. The provision in section 70C(1)(b)(iii) states "adversely affect the countryside or places of special interest". I remind the Minister and Members opposite that in certain parts of Ireland, albeit perhaps not nationwide, bodies such as An Taisce and Friends of the Earth do not want rural housing to be built anywhere. Having read their submissions to the Department, their view was that the shutters should be pulled down as far as planning for once-off rural housing was concerned. This is an issue on which I fought long and hard-----
This measure is so broad and wide-sweeping that when the chickens come home to roost, it will affect many councillors. Regardless of whether they represent Fine Gael or the Labour Party or are Independent, they will regret the manner in which this broad and trawling legislation will affect rural Ireland. It will not affect towns or urban areas, but it will affect once-off rural housing. This legislation suggests a person can adversely affect the countryside or a place of special interest. A house which has stood for 40 years without affecting anyone will, under this law, all of a sudden adversely affect the countryside or a place of special interest. This is a serious issue and there is no point in sidestepping it. It is completely against the spirit of allowing once-off houses in rural Ireland and will affect many areas I used to represent and elsewhere. IT will sound the death knell for rural communities.
I oppose the amendment because, as noted, it asks Members to include the line to "make a practical effort to ensure the system does not constitute...". The original provision goes on to state "is not likely to constitute ... a risk to human health or the environment". Members have heard references to potential constitutional challenges to this legislation. How could anyone with a legal brain allow his or her name to be attached to something that states, "make a practical effort to ensure the system does not constitute..."? It beggars belief because who will define what is meant by a "practical effort"?
I want to draw the attention of Senator Byrne, who is a learned legal person, to article 4 of the directive with which Ireland failed to comply in 2009. The adviser on that occasion, the Attorney General, was Paul Gallagher, senior counsel, a very eminent Attorney General in the Senator's Government. Article 4 states that member states shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: without risk to water, air or soil, or to plants or animals; without causing a nuisance through noise or odours; or without adversely affecting the countryside or places of special interest.
The Seanad Divided:
For the motion: 25 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, Aideen Hayden, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, Denis Landy, Maire Maloney, Tony Mulcahy, Michael Mullins, Catherine Noone, Marie Louise O'Donnell, Pat O'Neill, Tom Shehan, John Whelan)
Against the motion: 13 (Thomas Byrne, David Cullinane, Terry Leyden, Paschal Mooney, Rónán Mullen, Denis O'Donovan, Ned O'Sullivan, Trevor Ó Clochartaigh, Brian Ó Domhnaill, Labhrás Ó Murchú, Kathryn Reilly, Jim Walsh, Diarmuid Wilson)
Tellers: Tá, Senators Paul Coghlan and Denis Landy; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.
Question declared carried.