Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendment No. 1a to section 2 is required for the purpose of clarification and confirms the meaning of "emergency". An emergency means any event or circumstance or combination of events or circumstances, arising out of or in connection with pyritic heave, that has occurred or may occur which (a) adversely affects or may adversely affect the structural integrity of a dwelling or any part thereof, (b) results or may result in a risk to the safety of any person, and (c) requires urgent action in order to eliminate or mitigate those adverse effects and that risk. The amendment gives legal clarity on the word "emergency".

Michael Mullins (Fine Gael)
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The amendment is agreed and is listed as amendment No. a1.

Darragh O'Brien (Fianna Fail)
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Neither I nor my party have the amendment but it does not matter. I am happy with the amendment.

Michael Mullins (Fine Gael)
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The amendment was on the first list of amendments dated 17 December. Is it agreed? Agreed.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendment No. 1 is required for the purpose of clarification and confirms, in a new section 3(3), that the scope of the Bill does not include garages, car parks, gardens, patios or other structures not used as a dwelling, unless the pyrite resolution board is satisfied that to exclude such structures could result in damage to a dwelling which is included in the scheme, or is recommended for inclusion in the scheme.

Darragh O'Brien (Fianna Fail)
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The section deals with significant pyritic damage and includes categories (i) and (ii) which flows into the card system of red, amber and green. Are all these included?

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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It is included. The section is just a definition and I have tried to define what is included.

Darragh O'Brien (Fianna Fail)
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That is fine. I thank the Minister.

Michael Mullins (Fine Gael)
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Amendment No. 2 is in the names of Senators Reilly, David Cullinane and Trevor Ó Clochartaigh. Amendments Nos. 2, 2a, 6, 6a, and 28 are related and may be discussed together. Is that agreed? Agreed.

Kathryn Reilly (Sinn Fein)
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I move amendment No. 2:

In page 10, between lines 18 and 19 insert the following:“(6) The Chairperson of the Board shall if requested, 6 months from the establishment day and at least every 12 month period thereafter come before the Joint Oireachtas Committee on Environment to provide a report on the implementation of the pyrite remediation scheme and other matters relating to the Board.”.

Amendment No. 6 relates to the draft scheme. Yesterday the Minister stated in his speech that he would bring the draft scheme before the Houses of the Oireachtas when he receives it.

Amendment No. 28 puts responsibility on the chair of the board to respond to any requests by the committee to come before it. The amendments act as an oversight of the scheme and ensure that the relevant Oireachtas committee is involved.

Darragh O'Brien (Fianna Fail)
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The Fianna Fáil amendments are similar. It is important to have a proper review mechanism in place when the scheme is established and becomes operational. As the Minister alluded to in his Second Stage speech, the review must be such that matters can be discussed both in committee and, if necessary, when the report is laid before the Houses. Members will want to discuss it again in order to assess progress, discuss things that may need to be altered or changed somewhat into the future. As I said yesterday during my Second Stage speech, the provision is a good start but there are things that I would like to see done now. A review at least once a year would give us an opportunity to assess progress and, most importantly, the progress made by the Department and the board to alleviate the problem for home owners.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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I agree with the sentiment behind the amendments put forward by Senators Reilly and Darragh O'Brien. I remind them that there are established practices for chairpersons of statutory bodies to appear, upon request, before Oireachtas joint committees. It is also implicit that the chairperson will attend before the Oireachtas committee on the environment on receipt of a request from the committee. I shall go further and say to the Seanad that I will be in receipt of quarterly reports from the chairperson of the pyrite resolution board so shall lay them before the Houses of the Oireachtas. I shall do so in order to update Members of the Oireachtas, on a regular basis, on the progress or otherwise that has been made with the scheme. All statutory bodies are required to supply an annual report and that gives another opportunity to the relevant committee, or the House, to discuss the reports, if they wish.

I am not disposed to amendment No. 6. I am keenly aware of the long wait endured by many affected home owners for solutions to the pyrite problem in their homes. It has not been an easy time for them and I am anxious to put an end to their waiting by ensuring that the pyrite remediation scheme is adopted and implemented at the earliest opportunity.

The amendment proposed is not required, having regard to the detail already provided in the Bill. The pyrite remediation scheme will be developed in accordance with the detailed provisions set out in sections 14(2) and (3). It will set out, in an open and transparent manner, how the entire process will operate under the auspices of the pyrite resolution board, including the roles and responsibilities of the board and the housing agency, the applications and appeals processes and the requirements on applications and applicants.

The draft scheme will be subject to my approval before it can be made and put into operation by the board and will be laid before the Houses of the Oireachtas.

Darragh O'Brien (Fianna Fail)
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Is amendment No. 6a in this group as well?

Michael Mullins (Fine Gael)
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The group is amendments Nos. 2, 2a, 6, 6a and 28.

Darragh O'Brien (Fianna Fail)
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Does the Minister wish to comment on amendment No. 6a or will I explain our amendment?

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Senator O'Brien might comment briefly.

Darragh O'Brien (Fianna Fail)
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Section 13(6) states: "The Board shall publish the pyrite remediation scheme and any amendment or replacement thereof in such manner, including by electronic means, as it sees fit." We are saying this should be subject to the agreement of the Joint Committee on Environment, Culture and the Gaeltacht. Any changes that arise should be brought back to the Oireachtas committee.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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I am adopting the standard approach in terms of laying information before the Houses of the Oireachtas for the establishment of any board. It is open to the Oireachtas to discuss the establishment of the pyrite resolution board if the Houses wish to make time available to do so. In any event, upon receipt of a request by the Oireachtas Committee on Environment, Culture and the Gaeltacht, I imagine the chairperson would be pleased to make himself or herself available as well as the board and the expertise of the technical staff associated with the board.

Michael Mullins (Fine Gael)
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Amendments Nos. 3, 29 and 32 to 35, inclusive, are related and may be discussed together by agreement.

Kathryn Reilly (Sinn Fein)
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I move amendment No. 3:

In page 10, line 33, after “Minister” to insert “, with approval of the Joint Oireachtas Committee on Environment”.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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These amendments are not required having regard to the detailed provisions provided for in the Bill. The Bill provides for the appointment of persons to the pyrite resolution board, the appointment of appeals officers, the establishment of procedures for appeals to an appeals officer, the removal of a person from the board, the filling of a vacancy on the board and the circumstances under which these matters can occur. These matters will be subject to my approval having regard to the relevant provisions. I would be pleased to account for my decisions on such matters to the House.

Michael Mullins (Fine Gael)
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Amendments Nos. 4 and 5 are related and may be discussed together by agreement.

Kathryn Reilly (Sinn Fein)
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I move amendment No. 4:

In page 11, between lines 8 and 9, to insert the following:
“(2) The Minister will provide a report to the Joint Oireachtas Committee on Environment of any gifts of money, land or property made to the Board.”.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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I do not propose to accept amendment No. 4 because section 9(4) requires the pyrite resolution board to prepare a report annually not later than 30 June each year following its establishment and to submit such reports to my office. It is my intention that the annual reports will include information relating to any gifts received by the board in the context of the operation of the pyrite remediation scheme. Annual reports will be laid before the Houses of the Oireachtas. Furthermore, on a quarterly basis I will inform the House as I receive reports from the pyrite resolution board.

Amendment No. 5 is required to correct a typographical error in section 12(6). The word "Authority" was included instead of "Board". The amendment is required to correct that mistake.

Michael Mullins (Fine Gael)
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Amendments Nos. 7 to 14, inclusive, are related and may be discussed together by agreement.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendment No. 7 is required to clarify in a new section 14(2)(e)(C) that the pyrite resolution board has flexibility in applying the limits for expenses to be recouped to home owners in respect of alternative accommodation, that is, €3,000 and the removal and storage of furniture, that is, €2,500 during remediation works. These limits can apply individually or to a combination of both, subject to an overall limit of €5,500 remaining unchanged. Figures quoted are inclusive of VAT.

Amendment No. 8 is required to provide in a new section 14(2)(i) for arrangements to be made between the pyrite resolution board and an applicant under the pyrite remediation scheme for the giving of consent by an applicant to the board to enable the board to institute civil proceedings against any person, for example, the builder or developer responsible for the construction of the dwelling affected by pyritic damage. The pyrite resolution board may seek to recover damages or costs from any person responsible for pyritic damage to the dwelling of the applicant on foot of any arrangements agreed between the board and the applicant with regard to the institution of civil proceedings. This provision could be used in a case where a builder or developer has received compensation and where the board has undertaken or has commenced pyrite remediation works unaware that the builder or developer was engaged in litigation for compensation.

Amendment No. 9 is required to delete section 14(2)(l). While it is intended that the pyrite resolution the board will establish priorities for the remediation of dwellings based on certain criteria, the prioritisation will not be determined within classes of dwellings. The inclusion, therefore, of classes of dwelling is considered superfluous and does not add any value to the section and accordingly is not required.

Amendment No. 10 is required to delete within section 14(2)(m) the establishment of priorities by the pyrite resolution board. The remediation of dwellings will apply across all dwellings and will not differentiate between or within classes of dwellings. The inclusion, therefore, of "classes of dwellings and within such classes of" is considered superfluous, does not add any value to the section and accordingly is not required.

Amendment No. 11 is required to clarify the position under section 14(3)(c) of the pyrite resolution board in dealing with the options available to home owners who seek to have remediation works carried out other than under the pyrite remediation scheme. The board is required to consider what practical options the home owner has to seek redress. Typically, the board will seek information on whether an applicant is covered by a structural warranty, a guarantee, insurance cover or has commenced legal proceedings against a builder, developer or insurance company to secure remediation works to his or her dwelling.

Amendment No. 12 is required to clarify section 14(3)(c). For the avoidance of doubt this amendment clarifies that the financial resources of the applicant will not be considered by the pyrite resolution board in determining the practical options available to the applicant.

Amendment No. 13 is required to insert a new section 14(4) to clarify that the scheme will provide for the remediation of dwellings with significant pyritic damage. While the definition of "significant damage" includes a damage condition rating of 1 with progression and a damage condition rating of 2 initially, the pyrite resolution board will prioritise dwellings with a damage condition rating of 2. For the avoidance of doubt, it is considered necessary to include a new subsection to make it clear that the board may exclude dwellings with a damage condition rating of 1 with progression. Clearly, if a dwelling with a damage condition rating of 1 continues to deteriorate, then it is likely it will fall into the damage condition 2 rating category.

Amendment No. 14 is consequential to amendment No. 8 and provides for the insertion of new section 14(5) to provide that in any proceedings taken by the pyrite resolution board against a person responsible for pyritic damage to the dwelling of the applicant, it shall not be a defence of a person responsible for pyritic damage to the dwelling of the applicant to state that the affected dwelling has been remediated under the pyrite remediation scheme.

The board may take action on its own behalf or on behalf of the applicant.

Darragh O'Brien (Fianna Fail)
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I move amendment No. 10a:

In page 13, between lines 18 and 19, to insert the following:"(r) Homeowners who have already undertaken remedial works in the six years preceding this scheme from its commencement shall be eligible
to apply to the scheme for compensation.".

Averil Power (Fianna Fail)
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I second the comments made by Senator Darragh O'Brien. I have received many representations from individuals who had to carry out the work before the scheme was put in place. It was not necessarily that they could afford to undertake this work but some found themselves in a situation where they had no choice, given that the houses were so badly damaged. I received representations from young couples who remortgaged their properties and took out loans to do this work and from elderly people who dipped into their life savings to do it. This was not easy. Many ended up in further hardship as a result but they had to do the work because they could not wait and they were not sure when, or if, a scheme would be put in place. When I raised this issue with the Minister on an Adjournment debate after the fund was announced, he said that in such circumstances people should go after their developers. As the Minister is aware, unfortunately for many of those involved, the developers have since gone out of business so they are not able to recover it and even for those who had been fortunate to get money from developers' insurance funds, in many cases they would not refund the cost of the pyrite test which is €3,000 or €4,000.

While I welcome the scheme and commend the Minister for bringing it forward - it will be positive for those who can benefit from it - it is unfair to exclude those who have already had to pay out this money, which they could not afford, and have had to take on additional liabilities in order to get the work done. That they should be affected by a crude cut-off date is unfair. Therefore, I urge the Minister to look at it again and as Senator Darragh O'Brien said, if necessary, find a creative way around the scheme to make it fair.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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I understand where Senators are coming from in respect of this scheme. In any scheme there will be a starting point from which one must proceed. It is like the home improvement grants in the past which required prior approval before the works could commence. Those who had carried out works obviously would feel aggrieved if they had known that a scheme would be introduced. There is always a starting point.

This is not a compensation scheme. This scheme is being introduced at a time of very limited resources to try to help those who have a problem with a house which is in need of urgent need of remediation. In spite of the very difficult financial situation I was glad to be able to persuade my Government colleagues to do something for those who have been identified in the independent report. I do not want to give a false impression that there will be a fall-back position of VAT refunds or compensation for people who have had works carried out. I do not want to create that impression. All I can say is that the Government has decided to deal with this category of people identified in the independent report.

Darragh O'Brien (Fianna Fail)
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I thank the Minister for his comments. I take it that the Minister has not fully closed the door. I recognise it is not a compensation scheme but effectively people who had to use their own funds or borrowed moneys to make their houses safe. If there was an indication that the Minister for Finance would look at the issue by way of VAT rebates or allowing write-offs against future tax liabilities for the work carried out that might go some way towards it. In this instance we feel this group of people is being treated unfairly. In the absence of a commitment that something will be done into the future we will push the amendment.

Denis O'Donovan (Fianna Fail)
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Is the amendment being pressed?

Darragh O'Brien (Fianna Fail)
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Yes.

Darragh O'Brien (Fianna Fail)
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I move amendment No. 10b:

In page 13, between lines 18 and 19, to insert the following:“(r) Commercial & Community Facilities affected by Pyrite shall be eligible to apply to the scheme on a case by case basis.”.

Some schools, community centres and small business have been affected by pyrite. I gave an instance of a business employing 70 people that must pay back a loan on its building which is now worthless. Its insurers have refused to pay. I wish to highlight this issue so that the Department of the Environment, Community and Local Government will be aware that this could become a major issue in time.

I do not intend to press the amendment to a vote, but I would like to hear the Minister's comments.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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During the Second Stage debate many Senators made the case that this should not be an open-ended scheme which will put a significant burden of cost on the taxpayer.

I have confined it to a scheme of last resort to home owners and people in apartments. Those who are in commercial properties have contracts of works with their building contractor or have other means such as suing the contractor if the work is defective. As Senator Power said earlier, the contractor who built homes may have gone out of business so the situation for the home owners is different from that of commercial properties.

I must confine the scheme in the interest of the taxpayer at a time of finite resources.

Darragh O'Brien (Fianna Fail)
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I move amendment No. 10c:

In page 13, between lines 18 and 19, to insert the following:“(r) All homes with a 1 per cent plus level of pyrite shall be eligible to apply to the remediation scheme.”.

The Department states that a level of 1% pyrite is safe, but I am aware that the level is much lower in Britain, which is somewhere between 0.25% and 0.5%. We have set the level of acceptability of pyrite at a higher level. That is the reason I propose that all homes with a level of pyrite in excess of 1% shall be eligible to apply to the remediation scheme.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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We commissioned a report from an independent panel and I am proposing the scheme laid out in that report. We set out the definition of pyritic heave and damage in the legislation.

I would like to widen the scope of the scheme if I had the resources to do so, but I have to set parameters. If pyritic damages get worse, the homes will move into the category that will be eligible for remediation if the scheme is still in place. I have to draw the line so that I am able to deal with the 1,000 homes that are worst affected.

Darragh O'Brien (Fianna Fail)
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That is the kernel of the issue. I understand that resources are finite and that the scheme will be open for two to three years. It will take more time than that to fix the problem. I hope in the intervening period there may be case law and we may have recourse to those who should pay for this.

I wish to set down a marker that this problem will not be resolved by remediating the worst affected houses that are showing signs of pyritic heave right now. I think we will be dealing with the problem for anything from five to 15 years.

In light of what the Minister has said, I will withdraw the amendment. We will revisit this issue following the first review, when we will know how many homes have moved between the categories.

Paddy Burke (Fine Gael)
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Government amendments Nos. 11 to 14, inclusive, have already discussed with amendment No. 7.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendment No. 16 is consequential to Government amendments Nos. 9 and 10 and is required to clarify in section 16 (3) of the Bill that the establishment and priorities by the Pyrite Resolution Board for the remediation of dwellings will apply across all dwellings and will not differentiate between them.

Paddy Burke (Fine Gael)
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Amendments Nos. 17 and 18 are related and may be discussed together by agreement.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendments Nos. 17 and 18 are minor amendments required to make a grammatical correction in the opening line of section 17(3) of the Bill and a consequential amendment in section 17 (3) (a) of the Bill.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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This amendment is required to provide in section 18 (3) of the Bill that the Pyrite Resolution Board shall have sufficient time to consider a matter referred to it by a decision maker.

Government amendment No.20:

Government amendment No. 20:

In page 17, between lines 26 and 27, to insert the following:“Deferral of decisions
19. (1) Where the Board becomes aware that a builder or developer of a dwelling, has instituted or invoked dispute resolution procedures arising out of or in connection with pyritic heave affecting a dwelling owned by an applicant, the making of a
decision—

(a) by the decision maker under section 15(6)(a) or section 18(1)(a)(i), or
(b) by the Board under section 18(3)(a),
in relation to that dwelling may, subject to this section, be deferred.

(2) Where the Board proposes under subsection (1) to defer the making of a decision, the Board shall give notice in writing to the applicant concerned of its intention to defer the making of a decision and invite the applicant concerned to make a written submission to it, within 21 days setting out any reasons why the making of a decision should not be deferred.
(3) The Board, following the expiration of the period referred to in subsection (2), shall consider any submission to it under that subsection and any other matters it considers relevant and may defer the making of a decision under subsection (1) for such period as it considers appropriate in the circumstances and, within 21 days, shall give notice in writing to the applicant concerned of its decision (in this section referred to as a “decision to defer”).
(4) The Board shall review the decision to defer not later than 2 years after the date of the notice under subsection (3) and shall, thereafter, review the decision to defer not later than 1 year after the date of the previous review of the decision to defer.
(5) Where the Board proposes to review the decision to defer under subsection (4), it shall give not less than 21 days notice in writing of the proposal to the applicant concerned and invite the applicant to make a written submission to it, within 21 days, setting out any reasons why the making of a decision should no longer be deferred.
(6) In undertaking a review of the decision to defer, the Board shall have regard to any submissions made to it under subsection (5) and any other relevant information and may either—

(a) further defer the decision, or
(b) make a decision in relation to the applicant’s dwelling,
and, within 21 days, shall give notice in writing to the applicant concerned of its decision.

(7) The Board may make, in relation to an application for inclusion in the pyrite remediation scheme, not more than 4 decisions to defer and, if applicable, shall make a decision on the application not later than 12 months after the fourth decision to defer.
(8) A notice of a decision to defer under subsections (3) and (6)(a) shall advise the applicant that he or she may appeal the decision to the appeals officer within 28 days.”.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendment No. 20 is required to make provision in a new section 19 of the Bill for a situation in which an application has been received in respect of a dwelling or dwellings and where the Pyrite Resolution Board becomes aware that the builder-developer of the dwelling or dwellings is involved in a civil action for damages against a party who is considered responsible for the pyritic damage to the dwelling or dwellings.

Government amendment No.21:

Government amendment No. 21:

In page 17, between lines 27 and 28, to insert the following:“20. (1) Where, in relation to a dwelling that has been included in the pyrite remediation scheme a payment otherwise than under this Act is made to or for the benefit of the scheme participant concerned in respect of damage to the dwelling arising out of or in connection with pyritic heave, that scheme participant shall give notice in writing to the Board of the payment and the amount thereof within 28 days of the making of that payment.
(2) On receipt of the notice under subsection (1) the Board shall give notice in writing to the scheme participant concerned of the total cost or, where the pyrite remediation is not commenced or completed, estimated cost of the pyrite remediation of the dwelling, including any costs referred to in section 14(2)(e).
(3) On receipt of the notice under subsection (2) the scheme participant concerned shall be immediately liable to pay to the Board the lesser of the following amounts:

(a) the amount equal to the total cost or, where the pyrite remediation is not completed, estimated cost of pyrite remediation notified to the scheme participant concerned under subsection (2);
(b) the amount equal to the payment referred to in subsection (1).

(4) If the scheme participant concerned does not pay the amount specified in the notice under subsection (2) within 21 days of receipt of the notice, the Board is entitled to exclude the dwelling from the pyrite remediation scheme.
(5) Where the cost of pyrite remediation has been estimated for the purposes of subsection (2), the Housing Agency shall, on completion of the pyrite remediation of the dwelling, calculate the total cost of pyrite remediation of that dwelling, including any costs referred to in section 14(2)(e), and shall give notice in writing to the Board and the scheme participant of that amount (in this section referred to as the “final cost”).
(6) Where the final cost is less than the amount paid by the scheme participant under subsection (3), the Housing Agency shall pay the difference between the final cost and the amount paid by the scheme participant under subsection (3) to the scheme participant.
(7) Where the final cost is greater than the amount paid by the scheme participant under subsection (3), the Board may give notice of a liability to pay to the Board, and the scheme participant shall be immediately liable on receipt of that notice to pay to the Board, the lesser of the following amounts:

(a) the difference between the amount paid by the scheme participant under subsection (3) and the amount of the payment referred to in subsection (1);
(b) the difference between the amount paid by the scheme participant under subsection (3) and the final cost.

(8) Any amount not paid to the Board under subsection (3) or (7) shall be recoverable by the Board as a simple contract debt in a court of competent jurisdiction.
(9) The Board, as soon as may be after receiving or recovering a payment under this section, shall pay the moneys received or recovered to the Minster.”.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendment No. 21 is required to make provision in section 19 of the Bill to clarify the consequential amendment arising from Government amendment No. 20 and the principle of the pyrite remediation scheme being the scheme of last resort.

Paddy Burke (Fine Gael)
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Amendment No. 22 is a Government amendment. Amendments Nos. 22 to 27, inclusive are related and my be discussed together by agreement.

Phil Hogan (Carlow-Kilkenny, Fine Gael)
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Amendments Nos. 22, 23 and 25 to 27, inclusive, are minor amendments to correct a typographical error in section 22(d) and grammatical corrections in sections 23(b), 24 and 26.

Amendment No. 24 is required to insert a new section 23(d) to clarify that the Housing Agency, with the consent of the board, may enter into an agreement with any person for the performance of functions assigned to the agency under the Act.

Paddy Burke (Fine Gael)
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As it is 5.30 p.m. I am required to put the following question in accordance with the order of the House: "That the Government amendments undisposed of are hereby made to the Bill, in respect of each of the sections undisposed of, that the section or, as appropriate, the section, as amended, is hereby agreed to in Committee, the Schedule and Title are hereby agreed to in Committee and the Bill is reported to the House, with amendments, that Fourth Stage is hereby completed, the Bill is hereby received for final consideration and the Bill is hereby passed."