Seanad Éireann - Volume 115 - 18 December, 1986

Air Pollution Bill, 1986: Report and Final Stages.

Government amendment No. 1:

In page 8, to delete lines 34 to 36 and to substitute the following:

“(b) an ancilliary building or structure, or part of a building or structure, having a fireplace with a maximum heating capacity exceeding 45kW which serves more than one dwelling;”.

Minister of State at the Department of the Environment (Mrs. A. Doyle): During Committee Stage discussion on section 14, Senator Fitzsimons wondered whether individual apartments in an [1385] apartment block came within the definition of private dwelling and a consequential requirement to give 48 hours notice before entry by an authorised person. This had always been the intention but having considered Senator Fitzsimon's point more fully, I feel that the definition of private dwelling in section 7 could be amended to clarify the position. The amendment now makes it clear that only that part of an apartment block which houses a fireplace of more than 45kW is excluded from the definition of private dwelling. In effect we will be excluding only boiler houses serving a number of dwellings.

Mr. Fitzsimons: I am happy with that amendment.

Amendment agreed to.

Mr. Fitzsimons: I move amendment No. 2:

In page 11, line 27, to delete “other than in a case of urgency” and substitute “without the permission of the occupier and unless a serious contravention of this Act is suspected”.

We are dealing with section 14 which deals with the powers of authorised persons. Personal dwellings should be sacrosanct and this amendment goes part of the way I want but not all the way. Section 14 (2) says:

An authorised person shall not, other than in a case of urgency, enter into a private dwelling unless he has given to the occupier of the dwelling not less than 48 hours notice in writing of his intended entry.

Apparently even in a situation where an occupier might not object and might agree to entry the authorised person would be precluded from entering a particular dwelling. Under section 14(2) an authorised person may not enter into a private dwelling except in a case of urgent necessity and unless he has given the occupier of the dwelling “not less than 48 hours notice in writing of his intended [1386] entry”. I am sure there would be situations where an occupier might not object and that condition would apply.

I cannot understand, in relation to a private dwelling, how there would be a case of urgent necessity. We are not dealing with a situation where there is a large furnace, or where there could be serious pollution. It is unrealistic to have incorporated in the legislation that an authorised person can, without submitting to the judgment of any board or any individuals, come to a conclusion that the case is one of urgency. I am sure if an authorised person wanted to enter a private house he could come to a conclusion that it was a case of urgent necessity and that authorised person would not have to answer to anyone even if it turned out that it was not a case of urgency. I would prefer to see the situation where the power was not given under this Bill. As the Minister said, there is power under the Health Acts and there is certain power under the planning laws. The rights of the individual are being eroded all the time. The Minister made the case that in certain situations domestic dwellings are a problem but the latest report of An Foras Forbartha would seem to dispel that situation. For example, in the city more people have moved to the suburbs and, therefore, we do not have the concentrated problems we had. In the light of all that, I would like the Minister to accept this amendment.

Mr. M. O'Toole: I want to second the amendment and support my colleague. The main objection we had to this Bill was with regard to the privacy of dwellings. When we raised this on Committee Stage the reply was a bit distorted in that the Minister thought we were talking about backyards, out-offices and premises adjoining private dwellings. That is not the case. People do not live in out-offices, gardens, sheds or on land adjacent to their house. What we meant was the private dwelling. The thrust of our deliberations on Committee Stage was that the occupants of the inhabited part of the premises would have their own privacy without having harassment from [1387] officials calling to observe an air pollution emission in their kitchen. The Minister has not given much information to date. The Minister has very fixed ideas and our duty is to tease out and help the legislation and put forward our comments. I ask the Minister to observe them in the light that we are trying to help to make this Bill more effective.

We welcome the Bill. The Minister's technical background means she has a head start on most of us in that regard. Nevertheless, we have done some research on this. The two objections we have are with regard to the private dwelling in which people live. They are entitled to have their privacy and that should not be eroded by officials not alone under this measure but under other Acts as well. All we are referring to is the immediate portions that are inhabited rather than out-offices. The Minister and others cited cases where rubber is being burned in the backyards of some premises in Dublin, on the Naas Road and various other locations. That is not what we are talking about. We are talking about the preservation of the private dwelling. I ask the Minister to accept this amendment. It is the protection of the inhabitants of the private dwelling we are worried about. We do not want unnecessary harassment by officials having access to that privacy. I ask the Minister to consider the amendment in the light of the way we presented it.

Mr. Ferris: I can see what my colleagues are trying to say in this amendment. From reading the section they propose to amend, “other than in a case of urgency”. There is obviously no doubt that nobody will enter into private property unless it is a case of urgency. The section specifically allows for a case of urgency. There obviously will be cases of urgency at some stage in which people in private property might be contravening the Act. This amendment would also require the permission of the occupier. This would defeat the whole purpose of the Bill. Somebody is contravening the Bill when it has been enacted. It is a case [1388] of urgency and recognised officers want to go in and do the work they are authorised to do under the legislation. If that is the case they would still need the permission of the occupier if the amendment was accepted. The amendment is trying to protect private property.

Mr. M. O'Toole: Do you agree with protection measures?

Mr. Ferris: I do, but the private property must also have reference to the common good and at all times be subject to the common good. Where a private dwelling is contravening an Act in the interests of the common good somebody should be able to have an emergency power, and this is talking about fairly strong power, but only in cases of urgency. It should not be abused and if it were abused ordinary common law would then come into place. If somebody could prove that it was not a case of urgency and somebody entered their private property when it was not a matter of urgency, he or she would have a constitutional right and a common law right any way. Either we are trying to come to grips with air pollution and the possible causes of it or we are not. There is a balance there. So long as it is confined to cases of urgency I do not see anything wrong with the section. The words “without the permission of the occupier” would weaken it. If somebody is breaking the law in private property, somebody must have the power, even in the common good interest, to have access in the case of urgency. I look forward to the Minister's reply on this.

Mr. M. O'Toole: You are usurping the authority of the Minister in replying to us.

Mr. Ferris: I presume that on any amendment on this Stage of the Bill — and I have the opportunity to speak only once — I am within my rights in giving an opinion on the section. I am also part of the House and I hope Senator O'Toole does not take that right from me. I wanted to say a word on it because, as I [1389] understand it, when the Minister is replying either my view or Senator O'Toole's view will be confirmed. I hope Senator O'Toole realises that I am also trying to interpret the section as it is, or the way they want to amend it, before the Minister replies.

Mrs. Bulbulia: I want to make a brief intervention to say that Senator O'Toole conjures up notions of super snoops invading the privacy of home dwellers. The Bill does not in any way suggest that this will be the case. I am obviously interested in hearing the Minister's reply. The Senator is raising unnecessary fears and anxieties. Urgency will be the determining factor and nothing else. I am confident the Minister will allay his anxieties.

Mrs. A. Doyle: I would like to thank Senator O'Toole for coming to my defence. It was unnecessary but I welcome comments from all sides for and against the amendment.

Mr. M. O'Toole: I am a bit sensitive about Senator Ferris trying to usurp your authority.

Mr. Ferris: On a point of order, I resent the inference that I was usurping the Minister's authority. I was asking a question and giving an interpretation on what would happen if the amendment was accepted. I ask Senator O'Toole to withdraw that unfair remark. I try to participate in debates as often as possible, but I notice that when I make a contribution either immediately before or after Senator O'Toole he sometimes resents it. I am sorry if the Senator resents it.

Acting Chairman: I take it that he has withdrawn the remark.

Mr. Ferris: I did not hear it.

Acting Chairman: You were speaking all the time.

Mr. Ferris: Will he repeat it?

[1390] Mr. M. O'Toole: I withdraw the comment.

Mrs. A. Doyle: We have already devoted much time to this issue on Committee Stage. Without holding out much hope for a change of mind, I undertook to examine the matter again before Report State, hence the discussion here this morning. Neither this further reflection nor the arguments of Senators on this amendment have persuaded me that we can afford to modify substantially the provisions for access to private dwellings as originally drafted. Perhaps the following considerations will help to put things more into perspective.

All entry into premises under section 14 is limited to purposes connected with this Bill. In the case of private dwellings this represents a very considerable limitation on the power of entry. The only definite obligation which the Bill places on private dwellings is under section 24(2). This forbids an emission from any premises, including a domestic one, in such a manner as to cause a nuisance. General powers of entry to premises in relation to nuisance without any notice already exist under section 118 of the Public Health (Ireland) Act, 1878. The provisions of this Bill are actually less onerous or will certainly leave people no worse off.

However, with the permission of the Chair I would like to propose an additional amendment which we will call 2a. I hope this perhaps will allay some fears, particularly the aspect mentioned by Senator Fitzsimons that there is a mandatory 48 hours before anyone can enter if it is not a case of urgency which might not often be necessary because there could be the question of consent of the owner to come in immediately and resolve the thing instantly without protracting the discussion.

Acting Chairman: The Chair has actually agreed to allow amendment No. 2a as an additional amendment, in exceptional circumstances, because there are no other Stages.

[1391] Mrs. A. Doyle: That section will then read:

An authorised person shall not, other than with the consent of the occupier or in the case of urgency, enter into a private dwelling unless he has given to the occupier of the dwelling not less than 48 hours notice in writing of his intended entry.

That certainly suits the difficulty Senator Fitzsimons brought up and it suits exactly what Senator Ferris was saying. It does not dilute the power when it is absolutely necessary for the protection of the common good in relation to places of nuisance.

The other obligations which could arise for private dwellings under the Bill are only potential ones at this stage, but they could, of course, be activated. Section 25 allows the Minister to make regulations prohibiting or restricting the emission of black smoke. Whether these would apply to houses would be for decision in the context of any regulations. Even if regulations were to apply to houses it is not clear that entry to a private dwelling would be justified or necessary in order to enforce the regulations.

Finally, special control area orders may be made under Part 4 of the Bill and may specify requirements in relation to dwellings. I have argued already that the force of these requirements would be greatly weakened without substantive powers of inspection. It would be essential to the success of any special control area order that all householders are seen to comply with it. Any system which, through ineffectiveness, encouraged periodic non-compliance with an order would be unfair to conscientious householders and would soon degenerate into widespread non-compliance. I might also add that on my recent visit to the UK, at the invitation of the British Government, I discussed this area in detail with the relevant officials there, as to how their special control area orders worked; any difficulties in initial implementation, criteria for implementation and various other points we have discussed here [1392] during the debate. I am satisfied with this as it now stands.

Mr. Fitzsimons: Senator Ferris over reacted because we appreciate his contributions. I found him very supportive and we would not want to offend him in any way.

With regard to amendment No. 2a since the Minister will not yield any ground whatever in the way we want the section, we have to accept that this goes some of the way towards meeting the case we are making. I originally came from a rural area. In that rural area visitors called in; they never knocked on the door, they just walked in. This legislation gives the authorised person the power to walk in at any time without knocking on the door.

Mrs. A. Doyle: I do not agree with the Senator.

Mr. Fitzsimons: That is what the legislation does. If an authorised person decides that the case is very urgent he can walk right into a house at any time without giving any notice. As the Minister said, if the situation is such that there is a suspected health hazard, there is power there already under the Health Acts to go into that dwelling. Why have it incorporated in this legislation, particularly when there could be no case of urgency with regard to a private dwelling. The permission of the occupier is important and it is important if a serious contravention is suspected. There is no compulsion under this legislation on an authorised officer to prove his case with regard to the serious contravention. It might very well turn out that there was no contravention at all. In effect, the situation could be that if an authorised officer wanted to gain access to a particular house he could walk right in without knocking on the door. That is what we are opposed to. It is obvious, having regard to the representations we made on Committee Stage, that the Minister is not going to yield any ground in that regard. From that point of view we must be satisfied with the Minister's further [1393] amendment. It goes some of the way towards satisfying us.

Amendment, by leave, withdrawn.

Government amendment No. 2a:

In page 11, line 27, after “than” to insert “with the consent of the occupier or”.

Amendment agreed to.

Acting Chairman: Amendments Nos. 3 and 6 are similar and may be discussed together.

Mr. Fitzsimons: I move amendment No. 3:

In page 14, line 11, to delete “may” and substitute “shall, with the aid of an urban air pollution dispersion model,”.

We made this case on Committee Stage. The Minister, as Senator O'Toole said, has had special training and must realise that we have a very special case to make. Anything done under this legislation should be as a result of scientific evidence and research. I read an interesting article in The Meath Weekender of Saturday, 20 December 1986, under the heading “Lab Plan to Curb Pollution”, which stated that a special laboratory to help curb pollution in Meath is under discussion and that the idea which could cost up to £100,000 to implement was raised at a preliminary Estimates meeting of Meath County Council this week. The article is not as informative as I would wish with regard to the exact type of laboratory. The case I am making is that we have a local authority which realises that research is most important and they are prepared to provide a sum of £100,000 to deal with this problem.

In the context of this legislation, with regard to the special control areas in particular, there is no doubt in my mind that any decisions arrived at should have a very sound scientific basis. The Minister questioned on Committee Stage what exactly we meant by a `scientific' [1394] approach. In this amendment we have spelled out exactly what we mean —— “an urban air pollution dispersion model”. My understanding of this type of equipment is that there would be instruments located in different places in a locality to cover an area and the information registered on those instruments would be fed back to a central computer. This spells out for the Minister exactly the situation we would want. We also know that a number of local authorities are empowered to come together if they wish to do so. The Minister has the power to make an order that they should come together which would reduce the costs. The costs are not all that considerable, and even if they are considerable that would be no justification for refusing to accept this amendment. We are dealing with very important legislation which in many ways will cost many people large amounts of money. The Minister would have to agree that any decisions made by county managers or by any local authority would have to be based on scientific evidence with a proper datum line rather than on decisions by local authorities which, without this scientific basis, could vary from place to place. As I stated on Committee Stage, one county manager could be very strict on dealing with pollution of the environment while another manager might not be so strict. We should have a proper basis and a proper datum line to which to refer.

Mr. M. O'Toole: I should like to support the two amendments in the name of Senator Fitzsimons. As I said on the other amendment, we differed with the Minister in regard to monitoring and research. In the Minister's view there was a close relationship between monitoring and scientific research, so close that he felt there was no difference between modern monitoring and scientific monitoring and scientific research. That is where we are still clashing. If there is no difference between scientific monitoring and scientific research, as the Minister admitted on Committee Stage, why is it that the Minister does not want to accept [1395] our position that scientific research should be mandatory on local authorities before zoning these special areas? That is all we are asking for. These two amendments are relevant to that point.

We accept the Minister's professional knowledge in this regard, in that she has admitted that there is nothing between scientific monitoring and scientific research. It is so narrow I cannot see why the Minister is not accepting our position since we asked specifically, since this Bill was introduced, that scientific research be mandatory. That is all we are asking for and that is what those two amendments are about. I do not know if the Minister has changed her mind since Committee Stage. We welcome the Minister's other amendment here this morning. It has helped in some way. We now hope for another amendment which will resolve that little difference between this side of the House and the Minister's views in this regard.

Mrs. A. Doyle: I have never been susceptible to the carrot and stick principle and it is not going to work now. These two amendments before us deal specifically with air dispersion models. The Senator had been allowed some latitude in a Committee Stage speech on Report Stage but that is not for me to decide. I am going to stick to what the two amendments are about, which is air dispersion models and I am not going back over Second Stage or Committee Stage discussions. I would like to say, in passing, that monitoring forms part of scientific research. I did not say the two were equal. We discussed this at length before. Monitoring is a form of research. Monitoring in itself is empirical. It is only by monitoring that you could feed air dispersion models. They are two separate processes.

Regarding amendments Nos. 3 and 6 the air pollution models are a well tried instrument in air quality management. Models are constructed to stimulate the effect on air quality of various emission patterns or volumes. In this way they can help to identify cost effective control [1396] strategies. Dublin Corporation recently commissioned the World Spring Laboratory to develop a limited dispersion model for smoke and SO in the Dublin area. This has now been completed. An Foras Forbartha are also developing a fuller dispersion model, with financial assistance which I am pleased to acknowledge from Coal Information Services. I have no doubt, therefore, that air pollution dispersion models will be developed, where appropriate, by local authorities for air quality management purposes. I emphasise “where appropriate”. However, they are only one instrument of research among many. I do not believe that the Bill should require all local authorities to have such models.

The actual text of the amendment would have the further odd effect of requiring all local authorities, urban and rural, to develop urban dispersion models. Amendment No. 3 appears to confine local authorities research to dispersion models and this would not be appropriate. It would be too restrictive in all cases.

Amendment No. 6 would require local authorities to carry out monitoring with the aid of a dispersion model. Monitoring and modelling are different activities. Monitoring is factual data gathering, while modelling involves the formulation of a hypothesis or prediction for the future on the basis of the facts already gathered. It would not be coherent to require monitoring to be intermixed with modelling. Having stated my observation of these amendments, I am satisfied that local authorities will use air quality models where appropriate in their circumstances.

Mr. Fitzsimons: The Minister says that monitoring is research——

Mrs. A. Doyle: A form of research.

Mr. Fitzsimons: ——a form of research. The point we are making is that this can be a very incomplete and very insufficient type of research. We are talking of a circumstance where a local authority will have to carry out such [1397] monitoring of the air quality and the nature, extent and effects of emissions as the local authority may consider necessary for the performance of their function under this Bill or as they may be directed by the Minister to carry out. At present when finances are scarce, the extent of the monitoring would not be very extensive. Having regard to the special control areas and the other aspects which involve heavy expenses on individuals and firms, it is wrong not to have this basic research.

The Minister has referred to an air dispersion model even in rural areas. It is obvious we are only concerned really with urban areas because this is where the great problem would arise.

My understanding of an air pollution dispersion model is that instruments could be located at various sites over areas. The information about the various pollutants — sulphur dioxide, smoke, lead, carbon monoxide and so on — would be fed into the central computer and a good picture would be projected as regards air pollution. We never made the case that it would be necessary to have a complete survey in one place but in stragegic situations over an area, to have instruments which would give registrations with regard to pollutants. This information would be fed into a computer and then a picture would emerge that would be based on scientific facts. That is the kind of monitoring we are looking for. Section 54 (3) states:

A local authority may require the occupier of any premises, other than a private dwelling, from which there is an emission to carry out such monitoring of the nature, extent and effect of the emission and of the air quality as the local authority consider necessary and to keep and to supply to the local authority such records of the monitoring as the local authority may consider necessary.

There seems to be a comparison between monitoring in both situations. It seems that the monitoring envisaged in subsection (1) might be referred to in subsection (3) which clearly would be insufficient and would not be scientific. If [1398] somebody keeps a record of the amount of fuel burned in a fire, and the temperature and various aspects, that could be regarded as monitoring. I hope the Minister is not saying that on the basis of something as casual and unscientific as that an area control order could be made. We feel strongly that the Minister should accept this amendment or if she is not prepared to accept it, that there be some variation of it which would give the scientific basis we are looking for. We would not be satisfied with anything less than that.

Mrs. A. Doyle: I would like to acknowledge that research is wider than monitoring. Monitoring is a form of research. It is data collection. The Bill gives weight to our view in that area in that we have two separate sections. Section 18 deals with research and section 54 with monitoring. We are not saying they are the same thing. The Bill has two separate sections dealing with these two issues. I would like to put that on the record. I cannot accept what the Senator said particularly with regard to these two sections. I do not think we could have any compulsion in relation to air pollution dispersion models. There would be many local authorities where monitoring would be totally unnecessary. One can think of the western seaboard so I think a blanket compulsion for all local authorities to fall in line with what has been suggested is unnecessary and unnecessarily expensive in relation to the local government situation. Monitoring will indicate if there are any problems and monitoring would be carried out in an area of particularly high urban density where there are likely to be problems or where the Department of the Environment's view is that problems could occur. It is only a first line of action. We can monitor without having special air dispersion models. We can monitor for smoke, SO 2, lead, nitrous oxides, and so on. Monitoring can indicate if we are reaching the level of exceedences in relation to any of these and where we think there is a danger, or the monitoring indicates a danger, we can then move to the position of air pollution [1399] dispersion models if that is deemed necessary. To have a compulsion on all local authorities is quite unnecessary at this point particularly in view of the fact that as we all discuss this and that another section relates to special control area orders, it is the position in Dublin that concerns us and that is what we will be looking at and monitoring very carefully in the immediate future. We are a long way from having the same type of problem in any other of our major urban areas. When there is likely to be an occurrence [1400] or exceedences monitoring will occur and then we will move to the models if they are deemed necessary. I reiterate that it is totally unnecessary to insist on these provisions in relation to all local authorities.

Mr. Fitzsimons: In response to what the Minister has just said, I understand from reading the latest report from An Foras Forbartha that the problem has lessened in Dublin.

Question proposed “That the words proposed to be deleted stand.”

The Seanad divided: Tá 20; Níl, 12.

Belton, Luke.

Bulbulia, Katharine.

Connor, John.

Cregan, Denis (Dino).

Daly, Jack.

Durcan, Patrick.

Ferris, Michael.

FitzGerald, Alexis J.G.

Harte, John.

Higgins, Michael D.

Hourigan, Richard V.

Howard, Michael.

Howlin, Brendan.

Kennedy, Patrick.

Lennon, Joseph.

McGonagle, Stephen.

O'Brien, Andy.

O'Leary, Seán

O'Mahony, Flor.

Quealy, Michael A.

Níl

Cassidy, Donie.

de Brún, Séamus.

Fitzsimons, Jack.

Hussey, Thomas.

Kiely, Rory.

Killilea, Mark.

Lanigan, Mick.

Mullooly, Brian.

O'Toole, Martin J.

Ryan, Brendan.

Ryan, Eoin.

Ryan, William.

Tellers: Tá, Senators W. Ryan and Belton; Níl, Senators Séamus de Brún and Harte.

Question declared carried.

Amendment declared lost.

Government amendment No. 4:

In page 20, lines 6 and 7, to delete “is false or to his knowledge misleading” and to substitute “to his knowledge is false or misleading”.

Mrs. A. Doyle: On Committee Stage I undertook to consider Senator Fitzsimon's request that the words “to his knowledge” should qualify the word “false” in addition to the word “misleading”. I am happy to accept the Senator's point and this amendment will implement it.

Amendment agreed to.

Government amendment No. 5:

In page 32, line 25, to delete “inserted”.

Mrs. A. Doyle: The amendment also accedes to a proposal made by Senator Fitzsimons. I agree that the word [1401] “interested” should be deleted from subsection (4) (a) of section 48. The effect will be that any person may request a copy of an air quality management plan.

Amendment agreed to.

Amendment No. 6 not moved.

Bill received for final consideration.

Question proposed: “That the Bill do now pass.”

Minister of State at the Department of the Environment (Mrs. A. Doyle): There were two other matters which I undertook to consider on Report Stage. The first point of consideration is the suggestion made by Senator Fitzsimons on section 14, line 42, that the word “strictly” should be inserted before the word “necessary”. Senator Fitzsimons is anxious to ensure that authorised officers do not overstep their powers under the Bill.

Acting Chairman: I am sorry, Minister, but you have put me in an awkward situation.

Mrs. A. Doyle: I should like to thank Senators for their contributions to the debate on this Bill. The debate was long and well informed. It reflects well on the interests of this House in protecting our environment. I hope the Bill will be effective in preserving and improving air quality throughout the country.

Question put and agreed to.

Mr. Ferris: As it is now past 12.30 p.m. and as the next motion is a very important one, I do not think it should be interrupted by a lunch adjournment. I propose that we suspend the sitting from now until 2 p.m.

Sitting suspended at 12.30 p.m. and resumed at 2 p.m.