I beg to move Section 10.
DAIL IN COMMITTEE. - CRIMINAL AND MALICIOUS INJURIES (AMENDMENT) BILL.
Committee on the Criminal and Malicious Injuries (Amendment) Bill resumed.
SECTION 10.
(1) If on the hearing of an application to which this section applies, the Judge is of opinion that the applicant is entitled to compensation it shall be lawful for the Judge, subject to and in accordance with the provisions of this section, to attach to his decree one or other of the conditions following, that is to say:—
(i) a condition (in this section called a "full re-instatement condition") that the compensation shall be applied either in or towards erecting a new building on the site of the injured building or in or towards repairing the injured building, but so that the new or the repaired building shall be either of the same character as the injured building or of a character suitable to the neighbourhood and not less valuable than the injured building;
(ii) a condition (in this section called a "partial re-instatement condition") that the compensation shall be applied in or towards the erection on or near the site of the injured building of another building (in this section called a "substituted building") of a nature named by the applicant and specified in the decree and differing from the nature of the injured building.
(2) The Judge shall attach a full re-instatement condition to his decree in every case in which the injured building was
(a) situate in Upper O'Connell Street in the City of Dublin with a frontage to that street, or
(b) situate elsewhere and was immediately before the injury used for the purpose of any trade or business.
(3) The Judge may if he thinks it reasonable in the circumstances of the case so to do, attach a full re-instatement condition to his decree in any case in which either—
(a) the Judge is of opinion that the injury to the building has materially prejudiced the economic welfare of the district, or
(b) though the injury to the building has not materially prejudiced the economic welfare of the district, the applicant shows reasonable cause why a full re-instatement condition should be attached to the decree.
In considering whether it is reasonable to attach such condition as aforesaid to his decree the Judge shall have regard to the use made of the building immediately before the injury and shall not have regard to any proposal for a different future use of the building if re-instated.
(4) The Judge shall not attach a full re-instatement condition to his decree in any case in which he is of opinion that the injury to the building has not materially prejudiced the economic welfare of the district and the applicant does not show reasonable cause why a full re-instatement condition should be attached to the decree.
(5) The Judge if he thinks it right to do so may in any case (except a case in which he is by this section required to attach a full re-instatement condition to his decree) attach a partial re-instatement condition of his decree provided he is satisfied that the substituted building named by the applicant would not be unsuited to the neighbourhood and that there would not be an unreasonable discrepancy between the cost of erecting the substituted building and the market value thereof when completed.
(6) In every case in which a full re-instatement condition is attached to the decree the amount of the compensation shall not exceed the amount of the cost of the full re-instatement less the amount, if any, by which in the opinion of the Judge the price of the premises as reinstated would by reason of the re-instatement exceed the price of the premises in the condition in which they were immediately before the injury or destruction, the price in each case being estimated according to normal market conditions as at the date of the award and on the basis of a sale of the fee simple interest in the premises.
(7) The compensation in any case in which no re-instatement condition is attached to the decree shall not exceed the amount by which the market value of the buildings was reduced by the injury.
(8) In every case in which a partial re-instatement condition is attached to the decree the compensation shall be the probable cost of the erection of the substituted building with such further sum (if any) as the Judge shall consider reasonable having regard to the value of the injured building and the other circumstances of the case, but the total amount of the compensation shall be so measured that the estimated market value of the substituted building together with the further sum aforesaid (if any) shall not exceed the amount by which the market value of the injured building was reduced by the injury.
Where the compensation awarded under this sub-section includes any such further sum as aforesaid beyond the probable cost of the erection of the substituted building the partial reinstatement condition shall attach only to so much of the compensation as represents such probable cost.
(9) Notwithstanding anything in the foregoing provisions of this section, in any case in which the injured building was in use as a residence immediately before the injury and the nature of the building was such that though the building was not without value it had no market value or it would be impracticable or very difficult to estimate the market value the Judge whether he attaches or does not attach a reinstatement condition to his decree may grant such compensation as he considers reasonable in the circumstances of the case not exceeding in the whole the amount which he estimates to be necessary to acquire elsewhere the fee-simple of premises which would provide suitable accommodation of the standard appropriate for the persons ordinarily accommodated in the building before the injury, less the estimated market value of any remains of the building; provided that the Judge in considering whether the total award of compensation is within the amount aforesaid, may as regards any part of the compensation which is subject to a condition of reinstatement reckon that part according to the estimated market value of the work to be done by way of reinstatement instead of the actual amount of the conditional award.
(10) A substituted building may consist of one or more attached, detached or semi-detached houses.
(11) Where several persons have different interests in any injured building and no reinstatement condition is attached to the decree the Judge shall apportion the compensation amongst such persons in such proportions as he thinks right and may cancel or vary in such manner as he thinks reasonable having regard to the other terms of his decree any of the covenants and conditions contained in any lease under which the injured building is held.
(12) Where several persons have different interests in any injured building and a full or a partial reinstatement condition is attached to the decree the Judge shall award the compensation to the owner or owners of such one of those interests as the Judge thinks right and shall cancel or vary in such manner as he thinks just all or any of the terms of and the covenants and conditions contained in every or any lease under which the buildings are held, and may if he considers it just so to do wholly terminate and cancel any such lease.
(13) This section shall apply to every application for compensation under the Criminal Injuries Act in respect of the injury of any building by an injury to which this Part of this Act applies.
(14) Where an application is partly for such compensation as is mentioned in the foregoing sub-section and partly for compensation in respect of other matters this section shall apply to the application in so far as it relates to such compensation as is mentioned in the foregoing sub-section.
(15) In this section—
the word "building" includes a house, shop, factory, or any other permanent structure;
the expression "market value" means the amount which the fee-simple of the building if sold in the open market by a willing seller immediately before its injury might have been expected to realise but without making any reduction or allowance on account of the possibility or probability of the building being injured in the way in which it was injured;
the word "injury" includes destruction as well as damage;
the expression "injured building" includes a destroyed building as well as a damaged building.
I beg to move an amendment in Sub-section (1) to delete the words "it shall be lawful for the Judge," and to substitute the words "the Judge shall," and to delete the word "to" before the word "attach."
The intention of the amendment is to make it mandatory that the Judge shall attach a re-instatement condition in the case of all compensation awards. At a later stage it is intended to move a further sub-section, making it optional to give exemptions. The Clause as it stands rather leaves the Judge with a discretion, and our desire is to make the normal state of things that he shall attach a full re-instatement provision when he is making the award. We think that form is very much better, and likely to ensure what the Minister himself has announced as his desire, instead of leaving the matter at the option of the Judge. I know, of course, that the clause, in one sub-section, makes it mandatory on the Judge to attach a full re-instatement condition when the damage has been suffered by premises used for the purpose of any trade or business, but that is very loose, and is likely to lead to a good deal of further litigation, and, perhaps, doubt, in the mind of the Judge, that is to say, whether any particular premises have been used for trade or business. The object of the amendment, as I have said, is to make the normal award contain the full re-instatement provision, and later, to give the Judge the right to exempt in special cases. I hope the Minister will signify his willingness to accept the amendment.
The amendment moved by Deputy Johnson raises a matter of very great importance. I am not sure that it will greatly affect the procedure to infer what is normal and exceptional, but there is a kind of case, and I wonder whether it has come before the immediate attention of the mover of this amendment. I am sure it must have been in the minds of the Ministry, and I refer to it now, not in the interests of any party or parties, but in the interests of the country, because I think a grave economic injury might be done in the future. I take the case of a house that has been destroyed, let us say, in the country; a house of ample proportions that has been the demesne house on an estate. The Land Bill has not yet been brought in, and we do not know exactly what its provisions may be, but it may happen, and we hope it will happen, that a great portion will be passed over for sale, including a very considerable amount of what has hitherto been considered demesne land. The house actually destroyed, in its size and proportions and in its general expectations of the amount of demesne land that would be attached to it, if it were to be restored exactly as it was when it was built some centuries ago, would be very inadequately provided for in such circumstances by the lesser amount of demesne land at its disposal, if the range of the Land Bill is to be what we confidently suppose it will be. I suggest that, instead of making this full re-instatement condition mandatory, there ought to be some provision in the Bill, in view of entirely changed economic circumstances, especially in the country, in the future, by which this re-instatement condition may be put aside for a time until it is actually discovered whether the amount of the demesne land to be apportioned to such and such a landlord would really justify a house being built in the same large and magnificent proportions as the houses that, in some cases, were destroyed, or whether it may not happen that there would not be demesne land at all, or whether the whole of that land might not pass in the sale. These are very grave matters. As a friend of mine said to me the other day, when we were discussing this aspect of the question, where it was expected, and the landlord himself desired, that the greater part of this land should pass into the sale, and where at the present moment there are some thousands of acres of such demesne land, he expected that if a sale was effected there would not be more than 50 or 100 acres of land immediately surrounding the house that was burned down; but if a house were going to be put up again, exactly as it was before it was burned down, with 50 acres of land surrounding it, it would be unmaintainable. It would be not only very injurious to the person who received the damage, but it would be economically a very disastrous thing that you should have houses of that kind put up without proper means of maintenance. I suggest, what seems to me to be a fault in the Bill as drafted and as before us, that in cases of that kind, before it is determined exactly what the land policy of the country is going to be, and before it is decided what will be the immediate effect of such houses, that the Judge should have it placed in his power to put the whole matter sub judice—to put it aside. Compensation should be awarded, but whether the full re-instatement condition should be attached to the compensation, or should be held in suspense until it is actually determined in the future what is going to be done with the land of that estate I urge should be considered with a view to the introduction of some words in the clause that would provide for such a contingency.
I think after the speech made by Deputy Figgis it is due to him that I should congratulate him upon possessing the sort of conscience he has. It must be a great ease to his mind and to his rest. Mine is a continual source of trouble to me, and I should certainly like to have one like Deputy Figgis's. What we are concerned with is the debts that we owe to certain persons, and the responsibility that we have got to discharge to them. They are entitled to that. We are not giving them all that they are really entitled to, but we are going to give them as much as we can possibly afford. This Bill contemplates, first, full re-instatement; second, partial re-instatement, the full re-instatement being compulsory in certain cases, and the partial re-instatement admitting of certain other qualifications to suit the circumstances of particular cases. It would not be to the detriment of the person who has a claim against us, and it would not prejudicially affect the economic interests of the district in which the premises are to be re-instated or substituted. If there be a Land Bill—we are not entitled now to penalise people whose houses have been destroyed. This irregular activity is not the monopoly of the political Irregulars at all. It may be claimed on their behalf that practically every sort of disorder that has occurred in the country is attributable to their particular activity. That is not the case. There have been cases in which mansions have been destroyed for the very express purpose which Deputy Figgis has in mind —making it compulsory upon the owner of a demesne or other land to have it distributed amongst certain people. We are going to see in such cases, as far as the resources at our disposal permit, that no such distribution of land will take place to persons who have practised the destruction in order to gain their ends. I think it is the duty of the State to do something of that sort. In one case which has been brought under my notice, an ordinary farmhouse, on a farm of 50 acres, has been destroyed for no other purpose than that. If such practices were to be continued we can quite see how unsafe not only property, but life, would ultimately become in the country, where the man with the biggest hand or the man with the biggest gun is prepared to get for himself whatever quantity of land he requires. That is away from the point at issue here. This particular Section deals with full re-instatement conditions, and it would not be advisable, I think, either from the point of view of the State or of the person affected that a full re-instatement clause should be mandatory in every case. In some cases houses have been destroyed where something like 20 or 30 bedrooms would have to be provided if full re-instatement were inserted. Very few families, I think, will require accommodation for 20 children. There is not that number as a rule, and very few people nowadays entertain to such an extent that they require 20 or 30 bedrooms. It is an extravagance, an extravagance upon the person who would have to maintain such houses, and an extravagance upon the State in reconstructing houses of such dimensions. It will be observed later on from the sub-section that there is a provision for providing, not alone a substituted building, but substituted buildings. That, I think, would meet the case that Deputy Johnson has in mind. If it were made mandatory that full re-instatement had to be accepted the case for substituted dwellings or for a more useful class of house, or for an alternate building, would be brushed aside. For that purpose I think the terminology we have placed here best effects the purpose, and for that reason I do not think that it would be advisable to press the amendment or that we should accept it.
I think it is necessary for me to state the case for the amendment more fully than I have done. I was hopeful that, without much argument, the Minister would have accepted the amendment. The amendment that is in question at the moment is simply to delete the words "it shall be lawful for the judge" and to substitute the words "the judge shall." I am only referring to sub-section 1 of section 10 so far. It shall be lawful for the judge under the Bill as it is presented to insert a condition for full reinstatement or a condition for partial reinstatement. There are certain conditions attached to either one or the other. The proposed amendment is to say that the judge shall insert a condition for full re-instatement or partial reinstatement. That is, as far as the amendment under present discussion goes. To say to the judge that he may insert a provision for reinstatement, either full or partial, leaves a very big option; it leaves an option to the judge in the case of any premises in which no business is carried on. Now, a very large number of the buildings that have been destroyed or damaged are in the category of excepted buildings; that is to say, where no business is carried on. So that the Bill as it stands will leave it in the discretion of the judge to impose full reinstatement or partial reinstatement or no reinstatement. The Bill simply says that it shall be lawful for him to insert a reinstatement condition, full or partial. The object of the amendment is to ensure that there shall be a reinstatement condition, and at a later stage we propose to move an amendment giving him liberty, on the application of the owner, to make exemptions. From what I have understood of the mind of the Minister, his desire was to ensure that there would be reinstatement either of a single building by a number of smaller buildings or a similar building or something approximating to a similar building—that there should be reinstatement. But as the clause stands we are not going to have any assurance that that is to be the state of things under this Bill when it becomes an Act. There is no assurance that the Judge will impose a reinstatement clause. I think the Minister had assured the Dáil that that was the Government's intention, and I would like him to consider whether this particular amendment will not make operative the Ministry's intention better than the Bill as it at present stands.
It is very touching to have these anxious inquiries made about my conscience by the President of the Executive Council. I am afraid that there are certain public critics of his who might describe this as his characteristic flippancy, but I notice that just as whenever he becomes forcible he becomes weak in argument, so, whenever he becomes flippant, he becomes irrelevant in purpose. The point that I have brought up here is a very important matter that should be given due consideration and has not in the Section been given due consideration. A certain gentleman who has lost his house in the West, which has been burned to the ground, represented the matter to me. I believe he has represented the matter, at least he informs me he has, in a letter to the Ministry on this very question. The house that was destroyed required for its maintenance a very considerable amount of demesne land which he thinks it is quite impossible will be retained by him in the future—he has no desire to retain it in the future—but the house that is to be put up under any kind of reinstatement in place of the house that has been destroyed should be decided when it is resolved exactly what portion of such private land, that may be known as demesne land, he will be permitted to retain. Pending that decision there should be no other decision that the house should be of any particular kind until it is known how much land he may retain, if any. It is a question whether it is desirable that he should retain any and until it is decided how much land he shall retain, if any, no decision should be taken as to the kind of house that should be put up. There is one practical case. It is an instance of many cases of a like kind and it is a case that ought to be met, as it has not been met either in the drafting of this Section or in the forcibly weak and flippantly irrelevant remarks of the President.
It is obvious to me the more I hear Deputy Figgis the less he has read this particular Section, and he would know more about relevancy if he had read it, I think. The Deputy will in his leisure moments observe Sub-section 7 of Section 10. This particular Section deals with cases of compensation for buildings destroyed. We are providing for full reinstatement, partial reinstatement, and no reinstatement. That is the reason why Deputy Johnson's amendment could not be accepted. If it were to be made mandatory there would be, obviously, no case for compensation to persons who for one reason or another did not want and could not accept a reinstatement clause. There are few such cases. I believe the case mentioned by Deputy Figgis would be covered by that. If he is not satisfied perhaps he would like to have a Clause inserted that this whole Bill shall apply, in so far as it applies at all, to persons other than his friends. Sub-section 7 is one to which very strong exception was taken by reason of the fact that we limited the compensation to be paid to some sort of value. The term put down there is market value. They are certainly entitled to that. There are many such cases, and if the word "shall" were in the first part I do not think it would be possible to compensate such persons. They are those, not so many, who make the loudest noise in another place about the sufferings that they have endured and the fact that it is impossible for them to return to this country. I do not know but that in any case where the owner wished his estate to be sold that particular clause in Sub-section 7 would not enable him to carry out his intention, if he was desirous of selling, because he gets the market value of the premises, whatever they are, and he can sell the land or he can take partial reinstatement and have a house built to suit whatever quantity of land Deputy Figgis might allot to him out of his demesne. So that I think this whole Section will be upset if the particular amendment proposed now were to be adopted. It would, furthermore, render us liable to much heavier cost than we might have to meet. For example, take one of those cases in which a house has been destroyed and the owner does not wish to return. He could contemplate the construction of a hotel there which would be a far greater drain on the national resources than the compensation which we are alloting under Sub-section 7, granted that there was a market for such a thing when it was erected. So the clause as it stands provides for three classes—full reinstatement, partial reinstatement or substituted reinstatement, and the class referred to by the honourable and learned Deputy for Co. Dublin—Deputy Figgis.
Amendment put and negatived.
I move an amendment:—
"In Sub-section (1) to insert after the words `shall be applied' in line 8 and lines 17 and 18 the words `within a period fixed by the Judge.' "
This amendment seeks to ensure that where the full reinstatement condition is attached to an award that the re-instatement of the substituted building shall take place within a period to be fixed. We have seen here in Dublin what may occur in claims of this kind where portion of the city destroyed seven years ago is not yet rebuilt, and may continue indefinitely to be the eyesore that some sites are at present. I think it is only right that some reasonable limit should be fixed in the period for which the substituted building should be erected.
I have given this amendment very careful consideration. In the first place the State would be called upon at an earlier period to discharge its liabilities if such a clause were put in. In the second place, and I think this will appeal to the Deputy, skilled artisans are not in such large numbers, I think, to justify the inclusion of this clause. The Deputy is aware of the fact that there were sufficient funds available within the last 12 months for the Dublin Corporation to provide 1,000 workmen's dwellings, and by reason of the smallness in the number of artisans available I suppose not one-third that number was provided. Take the case of Dublin City only. This would mean concentration upon the restoration of damaged property, and might cut across the provision of the other classes of dwelling, to which I am sure the Deputy would not agree. There may be reasons why delays should occur in many ways. Perhaps a lease has run out, and other delays of that sort might occur. So that while it would be open to us at any time to reconsider the payment of these decrees if unreasonable delay were to occur, I do not think that just now it would serve the purpose which the Deputy has in view or the provision of dwellings I referred to, which, I am sure, he is anxious to see put up as soon as possible. For that reason I would suggest it would scarcely meet what he has in mind.
I have not suggested any arbitrary limit. What the amendment seeks to avoid is that the reconstruction of these buildings should be postponed indefinitely, and with regard to the other point regarding the alleged scarcity of skilled labour I would point out that that is not the reason why the building of workmen's houses has not gone on in Dublin. At any period during the past year or two a large amount of that skilled labour was unemployed, but the difficulties of rebuilding were otherwise than a shortage of labour. I would therefore press him if he cannot accept the amendment, to consider whether at a future stage he could not put in some words which prevent the indefinite postponement of these buildings.
There is one point I think the Deputy has overlooked. This amendment imposes upon the Judge in each of these cases the duty of fixing a period within which the money has to be laid out. In a large experience in proceedings under any Act of Parliament of this kind, or under those where land is taken compulsorily, and where railway companies and others are under orders to erect substituted buildings for those taken, as very often it does occur, you will have legal proceedings which goodness knows are long and costly enough already, protracted indefinitely between engineers, architects and expert witnesses on one side or the other brought to prove that the period ought to be one year, two years or ten years, and the litigation in any particular case might be almost interminable. You are not only dealing with Dublin, Cork and Fermoy and one or two big places of that kind, but you will have to deal with creameries, factories, residences and buildings of all kinds all over the country; and if in one of these cases, or a considerable number of them, you have a supplemental enquiry forced upon a Judge as to the period within which his decree is to be carried out there would be no end of this thing. I quite follow the contention that there should be some reasonable period fixed, but to impose on a Judge that duty is to put upon him a duty which he could not perform, and which, if he could, would mean an intolerable waste of time and money.
There is a good deal I can see in the arguments adduced by the Minister and by Deputy Fitzgibbon, but I would ask the Ministry whether they would insert at a later stage in the discussion on the Bill a clause which would empower the Minister for Finance, who has to pay the compensation, to see that if such a building is not built by a certain date, then the decree lapses. That might be ten years hence. You would make that condition, and it would rest then within the discretion of the people who had control of the money to insist that the purpose of the decree shall be carried out.
Speaking as Minister for Finance, if it is put to me in that way I would be inclined to suggest a clause which would postpone any of these re-instatements for 20 years. If we could get it done at half-price in 20 years half the money invested now at the current rate of interest would give us the whole of the money, so we would get it done for half-price. From that point of view I think it is scarcely a wise thing to suggest. There is another point we will take into account. Take a minor, in respect of whom a house has been destroyed. There are matters such as house shortage and so on, and it might be possible within the discretion of the trustee to delay the construction of such a house for a great number of years. That will certainly be a benefit to the State, as half of the money invested now would enable us to discharge the liabilities in that respect in 20 years. I will consider the point, but at the moment I do not think it would effect a very useful purpose. I take it what the Deputy has in his mind is something which would give a local authority in a particular district where the destroyed houses were situated, some authorisation to approach the Ministry of Finance with a view to see that such work should be done; that is to say, the initiative ought to come from the area in respect of which the valuation has been reduced by the destruction of the premises.
Would the Minister not consider it deplorable if, say, portion of O'Connell Street remained in that unbuilt condition for 10 years?
Certainly, that is different.
It seems to me that the last statement of the Minister is based on the assumption that he will be Minister for Finance for the next 20 years.
Not at all, I hope not, at any rate.
The amendment is withdrawn.
Amendment, by leave, withdrawn.
I move the following amendment:—
"To delete Sub-sections (2), (3), (4) and (5), and to insert the following Sub-sections in lieu thereof:—
"(2) Save as in hereafter provided, the Judge shall attach a full reinstatement condition to his decree in every case.
"(3) If the Corporation of the City of Dublin, with the approval of the Minister for Local Government, notify the Judge that it is desirable that an injured building which was situate in Upper O'Connell Street, in the said city, should not be reinstated on the same site, but on another site in or near the said city, the Judge shall attach to his decree a full reinstatement condition modified in accordance with the notification.
"(4) If in any case an applicant applies to have a partial reinstatement condition attached to the decree, and satisfies the Judge that the substituted building would be as useful as the injured building to the economic welfare of the district, that it would be suited to the neighbourhood, and that there would not be an unreasonable discrepancy between the cost of erecting the substituted building and the market value thereof when completed, the Judge may, if he think it right to do so, attach to his decree a partial reinstatement condition instead of a full reinstatement condition.
"(5) If in any case an applicant satisfies the Judge that—whether by reason of the fact that the applicant has already erected a new building, not on or near the site of the injured building, or of exceptional circumstances affecting the applicant or his trade or business—the attachment to the decree of a reinstatement condition would inflict hardship upon him, or would not be of material use to the economic welfare of the district, the Judge may, if he think it right to do so, make a decree, without attaching a reinstatement condition thereto."
This amendment proposes a new Sub-section in substitution for Sub-sections 2, 3, 4, and 5, and follows the line of argument initiated on the first amendment considered this afternoon. Of course, it implies that the judge shall have normally in mind the necessity for a reinstatement clause, either full or partial, but embodying the majority of the clauses in the Bill as it stands, leaving the discretion with the judge as to what exemption he would make on application by the recipient of the compensation. Paragraph 3 of the proposed new Sub-section reads:—
"If the Corporation of the City of Dublin, with the approval of the Minister for Local Government, notify the Judge that it is desirable that an injured building which was situate in Upper O'Connell Street, in the said city, should not be reinstated on the same site, but on another site in or near the said city, the Judge shall attach to his decree a full reinstatement condition modified in accordance with the notification."
As the Bill stands sub-section 2 reads —"The Judge shall attach a full re-instatement condition to his decree in every case in which the injured building was (a) situate in Upper O'Connell Street, in the City of Dublin, with a frontage to that street, or (b) situate elsewhere and was immediately before the injury used for the purpose of any trade or business.”
In the case of Upper O'Connell Street I think I am right in saying that there have been arrangements made or contemplated that certain of the buildings shall not be rebuilt on the same sites, in deference to a desire for public improvements. I think the Tramways Office, for instance, is a case where the Chairman of the Board announced recently that it was not intended to rebuild on the old site, but elsewhere. Now, the Bill as it stands would compel that building to be rebuilt in the same place. There are other possibilities of town improvements but under the Bill as it stands there can be no improvements made except by pulling down the new substituted buildings. Surely the Minister is not going to subscribe to the doctrine that in the interests of employment they should build up structures for the purpose of pulling them down again. I do not subscribe to that at any rate. In paragraph (b) of sub-section 2 it is stated:—
"The Judge shall attach a full re-instatement condition to his decree in every case in which the injured building was situate elsewhere and was immediately before the injury used for the purpose of any trade or business."
I submit that that is going to be a matter of difficulty, and the army of lawyers that Deputy Fitzgibbon spoke of will be mobilised for the purpose of proving either that the place was a place of trade or business or was not a place of trade or business. For instance, a house in which the eldest daughter carried on millinery or dressmaking, is that a place of trade or business? The house in which some of the promoters of the Sweepstakes Bill might be carrying a trade or business, is that a place within the meaning of the Act? Is that to come under this clause? Take the man who does book-keeping at home on his own account, is he carrying on a trade or business within the meaning of the Act?
Which kind?
Book-making.
I submit the Clause as it stands is too loose, and is going to call for a very great deal of litigation and controversy as to whether a particular building was carrying on a trade or business. Take the type of house that Deputy Figgis spoke of a little while ago. They had in that house, I have no doubt, a dairy, and they sold butter. Is that a place where trade or business was carried on? I submit it is going to be impossible, or very difficult, indeed, to disentangle one class of premises from another, and therefore Sub-section 2 of the Bill as it stands ought to be amended. How ought it to be amended? I submit the only perfect way to amend it is by the acceptance of the amendment which is down in my name. To throw upon the applicant the onus of applying for a modification of the re-instatement clause would mean that he would make his case, whether it was going to be beneficial or otherwise to the economic welfare of the district. Whether the circumstances of the time required that such a re-instatement clause should be put in or left out, a case would be made by the applicant, and the Judge could then decide. I submit that the clause as it stands requires amendment, and that the sub-sections that I have moved in substitution of Sub-sections 2, 3, 4 and 5, fills the Bill and meets the desire of the Ministry better than the clause as it stands in the Bill.
The amendment proposed cuts across the purpose of the Bill. The purpose of the Bill is to compensate persons who have suffered loss by the destruction of their property. If we defend those cases when they come before the Court, and a certain sum is awarded in respect of the particular premises, it is for the persons to sell those awards themselves to any persons who are willing to buy. It is not fair, I think, that we should lay down in a Bill of this sort what the character of the restored structure ought to be. In other words, if it should happen that any of those activities that have been mentioned by the Deputy were carried on, we do not wish to insist upon them changing or continuing; we leave them a perfectly free hand in regard to that, and full and complete liberty in the various contracts they have carried out with their landlords, or persons who have let the premises to them. If I read this amendment correctly it means that the provisions of it are directed towards special improvements in the city. It is not really within the province, or it ought not to be, of a Bill of this character to make provisions for such improvements. That ought to be the business of the local authority, if it should consider it desirable to do it. In this particular case it would mean that the Corporation, with the approval of the Minister for Local Government, would decide that a particular section of a particular building, or a particular building, was not to be placed in the same position as it formerly occupied.
Need not.
Need not be. The question at once arises as to what is to be done regarding the liability for the rent of that particular spot. Suppose for a moment that it were the holding of a charitable organisation, or the holding of a trustee for some orphans, who get £100 a year rent out of one spot where the Corporation or the Minister for Local Government decided a street should run. Who is to buy that particular interest out? It would be necessary, in my view, for the local authority to get powers here to acquire such land or lands, and there should be a reasonable opportunity for persons affected by the proposed legislation to secure that sufficient compensation, or some accommodation, would be made to reimburse them or satisfy their claims in respect of that particular plot. As I am informed, or advised, this would have to be done by granting the Corporation statutory powers, if they have not already got them. If they have got them I do not know that it is necessary to introduce this particular clause. If they have not those powers, then it is certainly due to the persons affected that the particular local authority should get those powers, and that they should be considered on their merits. One other point arises. It should, of course, be a special Bill with special provisions. But if we take an injured building situated in Upper O'Connell street, which is not to be reinstated on the same site, but on another site in or near the said city, it is possible the local authority would object to the term "near," because, obviously, if they were anxious to retain the valuation of their districts they would resent a factory or any other building going outside the area and thus reducing the city valuation. I have already explained about the owner of the property. There is no provision for removing his liability to the landlord in respect of a particular site. There is, further, a question of whether the local authority in this particular case would be satisfied to have the building erected outside of its bailiwick. I think the Corporation has got power to acquire permission to open a street in any particular place, and this, obviously, would be the time for it. But they are not interfered with if they have the power already. If they have not the power, this would not give it to them, and for that reason I cannot accept the amendment.
A great deal of discussion has been centred on the fact that there are improvements in certain parts, say, of the O'Connell Street area that have been projected. Deputies of this Dáil are familiar with them. It is not necessary to detail them, but they would imply that the Corporation or the Government, or a combination of both, should intervene to require that certain of the property damaged should not be rebuilt as before, because a new road or a new method of access, or a new method of planning that part of the city, is in project. The President, at an earlier stage to-day, chided me with not reading this section. I believe myself that I have read it twice before, and, in any case, I have read it twice since, but I do not find anywhere in the section where provision is made for the possible intervention, and more emphatically for the probable intervention, of a local body to protect the future in this way. Sub-section 3 (b) says: "Though the injury to the building has not materially prejudiced the economic welfare of the district, if the applicant shows reasonable cause why a full reinstatement condition should be attached to the decree, the Judge may, if he thinks it reasonable in the circumstances of the case so to do, attach a full reinstatement condition to his decree." That only deals with the intervention of the applicant himself. I believe it is not quite practicable, but I thought the matter might be met by putting in "the applicant or an intervener shows reasonable cause why a full reinstatement condition should be attached to the decree." I am afraid that the introduction of the words, "or an intervener," would be rather unintelligible, because of the fact that no place else in the Bill is any reference made to any such possible intervention. It is a matter of very considerable moment, which applies not only to O'Connell Street, but to many other areas in Ireland. It is a sound principle, accepted in every other country. Where destruction has been caused, occasion should be taken to re-survey the whole destroyed area to see if improvements could not be made in planning. It was so in the case of the destruction caused by the Californian earthquake. Directly that destruction occurred, the civic authorities at once appointed a special Committee of Survey, that went into the whole question, and drew an entirely new plan according to the modern requirements of the city. I think that should be done not only in Dublin, but elsewhere. Careful plans should be laid out as to what should be the best way of planning those destroyed areas as a result of experience and of modern requirements. But if that were to be undertaken by public bodies, or a public body, I foresee that they will be faced with very considerable difficulty, according to the proposals of this Bill, because there is no loophole by which they can intervene. In other words, if such action as the President mentioned, and I have in mind, were to take place in the future, as I hope it will take place, a new Bill will have to be introduced, setting aside provisions in this Bill. I suggest that a better legislative method would have been to have allowed for it under the provisions of this Bill for reasons of State or of Municipal importance, and so allow it that planning can occur, and that if it is necessary at some subsequent stage that legislation be brought in setting aside the reinstatement conditions imposed in a court of law.
There is a precedent arising out of the destruction of portion of Dublin in 1916, and I am not sure if the President was acquainted with that, as he was in durance vile when the matter was discussed in the courts. It was decided to widen Earl Street by the width of premises known as Allen's, beside Clery's, and the Corporation took necessary steps in order to do so. These premises of Allen's had been purchased by the firm of Clery's in order to extend their premises. When the Order was made to widen Earl Street the damages for eliminating the Allen site was assessed on the basis that it was a vacant or derelict site at the time. There had been a rebuilding clause attached to the award, and the award was conditional on rebuilding. That award, therefore, was never paid owing to the fact that the site was eliminated, and a small and insignificant award was made based on its being a derelict site with no building on it.
Reading that Sub-section (b) I would like the Minister to explain what he means by the applicants in this case. To my mind no applicant is going to ask for a reinstatement clause. It seems to me that it would be the Minister for Finance that is meant by the applicant.
Is that Sub-section 3(b)?
Yes. Sub-section 3 (b), line 37. It would appear from this that an applicant would apply to the judge to have a reinstatement clause inserted in the decree. Well, I do not think that will happen at all. To my mind it must mean the Minister for Finance, or some person belonging to the Ministry of Finance.
Unlike the Deputy who has just spoken, I think the Bill is so cunningly drafted that every applicant will ask for a reinstatement clause. I want to say a word on behalf of the country gentleman for whom I hold no brief, and who is apparently equally objected to by the Government and the Labour Party since neither of them has dealt with what seems to me a very gross injustice to the country gentleman who has lost his mansion. I am free to admit that as a class he is not one who has done anything to deserve the sympathy of his fellow-citizens, but that is no reason why we should treat him unfairly. Now, I invite the attention of Deputies to Section 4, and in connection with that to Sub-section 7. I think it is impossible to dissociate the two. Deputies will see that the effect of Section 4 is that the judge is discouraged, if not prohibited, from granting reinstatement conditions in cases of country mansions, and in Section 7 you have this very interesting phenomenon that in cases where a reinstatement condition is not attached compensation is to be paid upon the basis of the market value of the building or premises destroyed. First of all, I apologise for dealing with Sub-section 7 at the same time as Sub-section 4, but I think it is inevitable. At what period is one to take the market value of the premises destroyed? Presumably at the moment of destruction. Now, everybody will realise that a very large percentage of the buildings that have been destroyed in the country are buildings which in present circumstances have no market value whatsoever. People would not take a gift of them in many parts of the country, and, consequently, you are doing an injustice, first of all if you make the market value the test, and leave that market value to be determined during the civil war period when the market value of many is like zero; and subsequently in Sub-section 4 you tell the judge that he must not give a reinstatement condition to a person whose building is really of no economic value to the district, and in Section 7 you insist that all the compensation that the owner has to get in such a case is what, after all, will be the purely nominal market value of the premises. I do not know whether this is, as it seems to be, a very cunning financial device to avoid having to pay these gentlemen anything like the value of the premises they have lost, but it will have that effect, and I do not think that is fair. If the Deputy who has just spoken will refer to Section 7 he will see why it is that applicants would be very anxious indeed to have reinstatement conditions incorporated in the decrees. Whatever answer the Minister for Finance may be able to make to this point, which seems to me a serious one as I read the Bill, I do draw his particular attention to the importance of defining the date at which the market value is to be taken.
The Deputy will see that in Sub-section 9, if he looks at it. I will admit, sir, that this particular section is the most involved section of the whole Bill. It deals, as I said in the beginning, with three cases—full reinstatement, partial reinstatement, and the compensation in the event of their being no reinstatement or only partial reinstatement. Then there is, further, Sub-section 9, which, I think, deals generously with the class of case mentioned by Deputy Gavan Duffy. It will be remembered that Deputy Gavan Duffy did not himself suggest any alternative or any better method of estimating what the net compensation would be in cases where, as he says, some of those houses would not be accepted as a gift by anybody. Now, from the point of view of the State, how would it be possible to estimate what compensation should be paid in such a case as that? Here is a premises that some person owns; everybody admits that it would not be accepted as a gift by anybody. It is destroyed, and the State comes in to compensate. What is to be the measure of the compensation? I do not know that any suggestion that has been made is not met in all the various sub-sections. I will admit that they are very involved and rather difficult to follow, but they really do, I think, show clearly what is in the mind of the Finance Ministry in putting up this, which deals not alone with three, but actually with four different classes of compensation— full reinstatement, partial reinstatement, substitution, and cash compensation in particular cases.
Amendment put and negatived.
Amendment by Messrs. W. O'Brien and T. Johnson:—"In Sub-section (2) to insert between the words `street' and `or,' line 26, the words `unless the Corporation of the City of Dublin, with the approval of the Minister for Local Government, notify the Judge that it is desirable that reinstatement should not take place on the site of the injured building, but on another site in or near the said city, in which case the Judge shall vary the reinstatement condition accordingly."
Amendment No. 4 covers portion of the ground that was dealt with in the last amendment. I do not know whether the Minister is any more disposed to accept it or not. I formally move it.
I would undertake to give time to the Corporation, if they so desire, to run a Bill through dealing with this, but I am advised that in that case the complications would be very considerable. Who is to accept liability for the rent of a particular place upon which a building will not be constructed, and other matters like that? But if the Corporation will intimate to the Ministry that they desire to bring in a Bill to try to facilitate what the Deputy has in mind, we will undertake to give time for it.
I take it the Ministry will be prepared to go into consultation with the Corporation on this matter if they so desire?
Yes.
I withdraw the amendment, then. Amendment, by leave, withdrawn.
I wish formally to move Amendment No. 5—that is, "In Sub-section (2) to delete the word imme diately,' line 27."
In this case the word "immediately" would remove from the provisions of this particular Sub-section any house or premises or business or trade which, for even one week, has been unoccupied or used for the purpose of the trade or business. I do not think that that is desirable. If premises have been derelict for years, I can understand the reason for putting in an exemption clause, but where premises were normally in use for purposes of trade or business, then I submit that the fact that they were, immediately prior to the injury, vacant, or not used for such purposes, ought not to prevail. I urge upon the Ministry that this particular word should be deleted, leaving the Judge to assume that a place of business which was merely temporarily unlet came within the provisions of the full reinstatement.
I would be prepared to meet the Deputy if he would come a little bit of the way to meet me. "Immediately," I admit, is severe, but would the Deputy suggest a particular time—three months or six months?
A year.
Without fixing the limit of time in years, if you used the expression that occurs elsewhere in the Bill "at or about," that would give a reasonable period. "At or about the time of the injury."
Before that question is settled I would like to know the actual position; that is to say, supposing a particular business premises was not vacant, but that it had been closed down longer than twelve months, owing to the abnormal conditions that prevailed, and that no business was carried on. I have in my mind two agricultural firms in Wexford that have been closed down for practically two years. If anything happened to them during the trouble, how would they be treated, or how would they be affected by that clause if you mentioned twelve months.
There are two suggestions—one is that instead of the word "immediately," we should substitute the words "twelve months," and the other is the suggestion by Deputy Fitzgibbon to insert instead of the word "immediately" the words "at or about the time of the injury."
Perhaps the word "ordinarily" would be better still, and would meet the case.
I think it would.
Very good, I will consider the matter, and bring up some words on Report Stage.
I certainly think it would require some more consideration, and in view of the promise of the President I will ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move Sub-section (2), Paragraph (b), to add the words “or was a dwelling-house.”
I am afraid that this is something like the original "shall" in the mandatory section, and that it would bring in all the big mansions, because they were dwelling-houses, and they are provided for elsewhere. I do not think it is the intention of the mover of the amendment that he should bring in here the compulsory restoration of mansions as they were. I do not think that that is the intention.
The idea was rather to bring in the smaller houses which are let. The smaller house is practically a place of business to the owner. It is not a place of residence in the way a country mansion might be, but where a house is built and let for rent, the object is to ensure that there shall be a rebuilding of these houses, so that the housing problem would at least be relieved, and that a house of that kind, which is in fact a place of business inasmuch as it is an instrument for the extraction of rents, does come within the category of trade or business. The intention was not to include the mansion-house, but rather the small dwelling-house.
If the letting of lodgings is a business, then lodging-houses are in already. If not, the introduction of the word "dwelling-house" means necessarily the reinstatement of every place where somebody dwells, which does bring in mansions. If the actual lodging-house—the letting in tenements—does come within the definition of carrying on a business, there is no necessity for the amendment.
I think the other point Deputy Johnson has in his mind is covered by the economic circumstances of the district. I believe that any local authority would be able to prove that, because obviously any house built by a local authority now cannot be put up at an economic price. Therefore there is an economic disturbance if destruction took place, and if the house is not restored or a reinstatement clause inserted, I think that is the best case that can be put forward for reinstatement.
The Minister for Finance will know—it is in my recollection—that the Inland Revenue authorities insist on extracting income tax from people who let lodgings, under Schedule (d), which is a very much heavier schedule than (a), on the ground that they are carrying on business, and not taxable under the section of the Income Tax Act relating to the ownership of buildings and premises; and, if that is so, the letting of lodgings would be a business within the meaning of the Statute.
There are other houses besides lodging-houses that might be attacked. Deputy McCabe might be able to give an instance; and I am afraid that there is great danger that a Judge would not consider the destruction of a dwelling-house as one that affects the economic welfare of the district. Strictly defined, it might well be said to be; but the term is a very loose one in the minds of the public and of the legal gentlemen. Unless you get a very strict and scientific economist, there is great danger that the Judge may say this is not a matter of economic well-being, but rather a matter of shelter and protection. There have been quite a number of small houses tenanted by people of small earnings that have been destroyed. These are cases where you should make the whole reinstatement clause effective.
I would be inclined to think that 3 (b) would cover such houses. Certainly, if anybody can show a reasonable case in view of the housing condition at present, I think the owners of small dwelling-houses destroyed can show a reasonable case. If (b) has any virtue at all, it would be to provide for such a case.
It is quite true you might convince a Judge, but I want to make quite sure that he shall be convinced.
If the only fear here is about an ordinary dwelling-house, I am perfectly satisfied that the Section is watertight with regard to that, and more so than with regard to any other.
If the Minister will consider the matter between this and the next stage, I will ask leave to withdraw the amendment.
I will do that.
Amendment, by leave, withdrawn.
I beg to move the following amendment to Sub-section 5:—"To delete the words `the substituted building named by the applicant,' and to substitute `there is a reasonable probability of the substituted building being not less useful than the injured building to the economic welfare of the district, that the substituted building.' "
I do not know whether, since he spoke on the main amendment which was defeated earlier, the Minister has considered the acceptance of this one. The Sub-section gives the judge power, except in the case in which the section requires a full reinstatement condition, to attach partial reinstatment conditions, provided he is satisfied of two things; one of which is the suitability of the substituted building, and the other that there is no unreasonable discrepancy between the costs of erecting the substituted building and the market value of that building when erected. My amendment would add a third condition, that there is a reasonable probability of the substituted building being not less useful, than the injured building, to the economic welfare of the district. The question has been argued on the previous amendment which was defeated; but, I think, the Minister and Deputies should reconside whether this amendment could not be accepted. Cases such as the amendment is intended to cover arise occasionally I think there were some after 1916. I occasionally happens that a building, which was of considerable economic value to a district, is replaced by a building which, perhaps, is to provide amusement to the people of a district or a city, but is not, except for the small number of people engaged in it as small wage-earners, of real economic value to the district. That is what my amendment is intended to provide for, that a substituted building shall be not less useful to the economic welfare of a district than the injured building.
I am advised in this case that, the terminology is such, that in the case of a building which is presently of a non-useful character that the substituted building might have the same character; in other words, that while the term we have down in Clause 5 states "not unsuited to the neighbourhood," in this particular case, the amendment says "not less useful than the injured building." Therefore, you establish a character for the substituted or restored building; you take the character of that from the character of the previous one, whereas, in our case it says that the substituted building named by the applicant would not be unsuited to the neighbourhood. I am advised that the terminology in Clause 5 is stronger than that in the amendment.
But the words the Minister has referred to would be retained in my amendment, because my amendment proposed to delete the words "the substituted building named by the applicant," and to put in the words "there is a reasonable probability of the substituted building being not less useful than the injured building to the economic welfare of the district." I do not propose to remove the words the Minister has mentioned at all.
The point might be illustrated in this way. A business premises, or a mansion house that had been used for certain purposes, might be replaced by a number of small houses which are not unsuitable to the district. The intention of the amendment is to insure that the economic welfare of the district is not going to be minimised by the new building, even though that new building is suitable. It is quite possible to see that a partial reinstatement clause would allow a building which is quite suitable to a district, and yet limit, or rather minimise, the economic welfare of the district. What we desire is to ensure that the economic welfare of a district is not to be minimised by the addition of a new kind of building.
I am afraid the Deputy does not see that the person who would nominate the substitute building is taken out by the amendment, that is, he is to put up the suggestion of an alternative building. It is proposed to take out the substituted building named by the applicant if you delete these words. Is it the idea that you should leave it to the discretion of the judge, and is it the intention that it is the judge should nominate? I believe the amendment scarcely fits in with the handicraft of the Section, and will require some re-drafting.
I would be quite willing to allow the words, "by the applicant" to follow my amendment if the Minister is willing to accept the amendment.
I do not quite understand the point, because as I have said the character, if I may say so, that we put up, is a character of quality, and the character that the amendment proposes to put up is a character that the building shall be not less useful than the one that was destroyed. I would undertake to meet the Deputy, and see if it would be possible to get on the Report Stage an amendment that would meet his point; but, at the moment, I do not see the force of the amendment.
The Minister will probably see the point, if one thinks of the use that is made of the building. In one case, it may be used for a purpose which is much less valuable to the economic welfare of a district than in another case. In one case a building might employ three people instead of one which might have employed fifty hands. When we speak of economic welfare we are thinking of the suitability for the process of production, of business, trade, commerce and industry in that district, and we want to ensure that the substituted building shall be of that character, and shall be at least as useful to the locality as the old building, within the limits of the clause.
It is a little difficult, I think, to understand the purpose of the amendment. I do not know whether the object is to ensure that, instead of building cottages or farmhouses, some of the white elephants shall be re-erected, in the hope that for some period, at any rate, there might be a large number employed upon them. Normally the partial reinstatement condition would not apply in cases where economic injury was done by the damage, because there are to be full reinstatement conditions in the buildings in Upper O'Connell Street and in buildings elsewhere used before the injury for purposes of any trade or business. Then there is in Sub-section 3 a special provision that if the Judge is of opinion that the injury to the building has materially prejudiced the economic welfare of the district, he may attach full reinstatement conditions. Then partial reinstatement conditions would normally only apply to residences of a particular type. I cannot see what is the specific idea at the back of the amendment, but it seems to me to be one of attempting to force the reinstatement of these large houses even where there is no great desire to reinstate them, instead of building other things that might be, taking a broad outlook, just as good for the economic welfare of the district, although a case might be put up for some immediate dislocation caused by the destruction of the previous buildings.
Amendment, by leave, withdrawn.
I beg to move: "In Sub-section 9, lines 31 and 32, to delete the words `in use,' and to insert in lieu thereof the word `maintained.' " The object is to ensure that the Section shall apply to a building maintained as a dwelling-house or as a residence in the special circumstances in which the owner was not in possession actually, but remained in occupation. The fact of maintaining the building as a residence is probably the best possible evidence of the desire of the owner to occupy it should circumstances allow it.
I would like to call the attention of the Minister to the word "premises," in Sub-section 9. You are here dealing with the case where you have a residence of no market value, and the judge, in awarding compensation, is not to give more compensation than the amount necessary to acquire elsewhere the fee-simple of premises which would provide particular accommodation of the standard appropriate for the persons ordinarily accommodated in the building before the injury. I think, on examination, it will be found that the word "premises" is not clear, because it is liable to be interpreted as meaning land, whereas I take it to mean land plus the building on it. A slight change of phraseology would make it clear what is intended as land plus the building on it.
I do not know whether it is the intention—I presume it is the intention—that this should be the residence of the applicant. But, in Clause 10, as the Sub-section stands, so long as it is a residence maintained as a residence these various privileges will apply. A house that is let at 6s. or 7s. a week is a residence. Is it intended that the owner of that house is to be under this clause? It seems to me when reading it that it was intended to apply to the residence of a man who only occasionally lived there, not to the class of cottage, house, or town house, which was let by the landlord to a tenant who constantly lived there. If it is intended to apply to houses which are residences then it will require pretty full consideration. If it is only intended to apply to the mansion which was referred to in the illustration, then there ought to be some words to the effect that it was the residence of the applicant, because if a house or houses owned by some person living, perhaps, away from the country altogether, were to come under this clause I think that there would be some criticism to make.
Well, it really means these mansions which, for one reason or another, have not been in use, and in order to give fair consideration to them, we have brought in the words "maintained as residences." There are many such. It deals entirely with mansions because as specified here they have no market value, or it would be impracticable or very difficult to estimate the market value. And it was objected to by some representatives of persons affected who pointed out to us that "maintained" was fair whereas "in use immediately before the injury," was unfair, and that is the reason why.
That is true, but many houses, even in towns, are alleged to-day to be of no market value. You cannot sell while the tenant is resident, at a particular rent. They are practically unsaleable unless you can get possession. In some towns that is the case. In small towns, in the case of small houses let at small rents that is the case, if they are in a decrepit condition, or in any condition where repairs are required. I can give instances to the Minister, where you will be able to get houses for nothing, provided you put them into good condition. These residences are not intended to be covered by the Sub-section.
No.
I would like to ask the Minister a question with regard to his interpretation of this interesting Sub-clause 9.
Has it a bearing upon the amendment?
Yes, it has. At least, I submit that anything that has a bearing upon the correct interpretation of the clause as it stands has a bearing upon the amendment, inasmuch as it is a matter of understanding.
If the Deputy desires to understand the amendment, it is all right.
The sub-section says:—"In any case in which the injured building was in use as a residence immediately before the injury, and the nature of the building was such that though the building was not without value it had no market value or it would be impracticable or very difficult to estimate the market value." Now, as I understand the section, that is the case to which the thing applies. The injured building maintained is a residence which, though it may have some value, at any rate has not a market value, or the market value cannot be without great difficulty estimated. Now we pass a few lines, and in line 42 the judge is directed to subtract the estimated market value of any remains of the building. The building when intact before injury had no market value, or, if it had, that value was practically inestimable—too difficult. But after it has suffered this injury and a claim for compensation is made, the judge is to estimate the market value of the ruin and subtract that from the amount of compensation awarded. That is what I cannot comprehend, and I should like to have it cleared up for my poor understanding.
In cases where damage has taken place by fire or destruction there might possibly be some value on the stones that would be left— bricks and other articles like that—and if that be the case, whatever is there should not, in our opinion, be the property of the person who is going to get compensation in respect of the destruction of that particular building.
Is the judge to take into account the value of the kinema rights for photographing the debris?
I do not know that they have any marketable value.
They might have.
I would ask the Minister if he would consider between now and the next stage whether there should be some words put in to ensure that this is to be confined to the cases of mansions, and not to apply to the small householder. I think that, perhaps, in reading it over he will find that there is a possible leakage there.
Very good, we will look into the matter.
Amendment put and agreed to.
I beg to move:—
"In Sub-section 10 to delete the word `houses,' and substitute the word `buildings.' "
With the permission of the Dáil, I will be willing to accept the following: "Whether dwelling-houses, offices, or business premises," instead of the suggestion to insert "buildings." I am advised that there would be a danger in putting in the word "buildings"; that it would leave open to a different interpretation the word "house" where it occurs and "buildings." If that would meet what the Deputy has in mind I am prepared to accept it.
I wonder will the President add "farm buildings."
Will that cover farm buildings?
Oh, yes.
In view of the President's statement, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move to insert at the end of Section 10, Sub-section 10: "Whether dwelling-houses, offices, or business premises."
Would "business premises" cover farm buildings?
"Offices," I think, would.
Is a barn "offices"?
Yes, out-offices.
Amendment put and agreed to.
I move to add at the end, "or such other structure as the Judge may approve." That would cover the point as to the out-offices.
Amendment put and agreed to.
Before you come to Sub-section 14, I think in Sub-section 12 the words "or more" are left out in line 6. "Where several persons have different interests, the Judge shall award compensation to the owner or owners of such one of those interests as the Judge thinks right." I think that should be "one or more of those interests as the Judge thinks right," and then the reinstatement decree attaches to the person who owns the premises on the land. I do not think it was the intention of the draughtsman, where there are several people interested in premises, to cut all except one of them out.
I think that the Clause is right as it stands. The object is to put the duty of reinstatement upon one person, and if you have "one or more of those interests," I think that that will not make the intention any clearer or improve the clause.
I quite realise that the duty of reinstatement is to be put upon one person. He gets his decree, and he has to spend it in reinstatement, because it is a full reinstatement decree; but other people are to have their interests, as far as I can see, cancelled altogether. I assume that they are to be paid something for the right, whatever it may be, that is taken from them, and I do not see why the compensation should go to one only, and the duty of reinstatement to someone else.
I should have liked also to ask does not this, as worded, cover a great deal more than was intended? This gives power to vary—to cancel, even—the conditions in a lease. That is highly revolutionary, if we take it literally. Of course, I know what is intended is that, in so far as the new situation set up by the reinstatement may render alteration in covenants necessary, the Judge shall have power to make such necessary corrections. But as it stands it really would leave room, supposing there was an eccentric Judge, to reconstruct the entire lease.
It is a mandatory clause.
Would it help if I reminded Deputies that when this Bill has been reported, there will be a necessity to re-commit certain sections, and if amendments are put in to this section it will come up for discussion again in Committee?
I was under the impression it was a clerical error.
No. It may not be perfect and acceptable. I think the intention is pretty clear. Perhaps a building may be let out to different persons. One person may have a lease of an upper part, and another may have a lease of another part. It only applies in cases where there is a full or partial reinstatement condition, where a building is to be reinstated, or where another is to be built, or a building is to be erected instead. It is necessary that some one person should have the whole of the compensation award for the purpose of reinstatement, and for carrying out the work of reinstatement, but it is not intended to forfeit the rights of the other persons. If it is found that the Clause does not achieve it, it can be amended. The idea is that the person who got the full compensation, and who was charged with the duty of reinstating should have to compensate the owners of the other interests. The idea is simply that some one person has the duty of carrying out the work. If you have three or four people interested in a building and concerned in its re-erection, one will want it done one way, and another will want it done another way. There will be the whole question of settling the plans, and deciding whether it is to be of stone or of brick; and all sorts of questions will arise.
I think the Minister has overlooked the point that the new building may not be reinstated in the same place. It may be half a mile away; and then what becomes of the people? No cancellation of a lease or a site in Upper O'Connell Street could possibly affect a building subsequently erected on some other site—say in Grafton Street or somewhere else—and yet only one person is to get the compensation.
Before you consider the next amendment I wish to call attention to Section 13. On the last stage I ventured with some assurance to say that this Bill expressly excluded from compensation military damage done in O'Connell Street last July, and I repeat that to-day, possibly with more assurance. The President on that occasion triumphantly pointed to Section 10, because O'Connell Street is written in Section 10. It is no use writing in Section 10 the words "O'Connell Street," unless you give O'Connell Street compensation. Section 13 says, in so many words, that this Section applies to criminal injuries properly so-called. "This Section shall apply to every application for compensation under the Criminal Injuries Act in respect of the injury to any building by an injury to which this Part of this Act applies." If Deputies will turn to Section 15 they will see that this part of this Act applies to all injuries to property occurring between certain dates in respect of which compensation could have been given under the Criminal Injuries Act. Every schoolboy knows that no compensation could be given under the Criminal Injuries Acts for destruction by cannon in O'Connell Street. I am perfectly certain, if the Attorney-General were free to give his own views on the subject, he would admit I am right; and whether by accident, as I assumed last time, or by design—you never know what financial scheme may be behind some of these clauses—the fact remains that the principal damage with which the Bill should be concerned—the damage done in O'Connell Street by military operations last July—is absolutely omitted from the purview of this Bill. Section 14, Sub-section 9, deals expressly with damage caused by military operations, but that sub-section in terms confines damage caused by such operations to damage which could be described as a wrongful act. I presume it is not arguable that the damage done by National forces operating against Irregular forces is to be described in a Government Bill as a wrongful act. I should not have laboured the point, but the Minister for Finance actually denied the charge the other day, and in refuting it pointed to Section 10, which, as I say, has nothing in the world to do with rebellion damage. I ask for an assurance that this omission is going to be put right either in Section 10 or in some other section, but it is abundantly clear that the only damage the Government proposes to compensate for is wrongful damage; in other words, they do not propose to compensate for military damage done by their own troops. Let the position be made quite clear, and let us know where the Government stands in the matter.
The President made a slip in the clause in which he said that the O'Connell Street damage is covered by Clause 10. As a matter of fact, the damage covered, and intended to be covered, is covered by Section 14. That is, the operations that were undertaken were technically and legally wrongful acts, in that they will have to be covered, as a lot of military operations will have to be covered, by an Act of Indemnity. It is not the intention to leave the phraseology as it stands. The phrase will be altered so that it may not lead to any misapprehension, and that the use of technical and legal language may not deceive people who would not take the technical and legal meaning from it. Beyond that, there is no need to make any amendment in the Bill to include damage done in O'Connell street.
Are we to understand that in this Bill which we are now considering, and which will, in some shape or form, finally become an Act of this State, this Legislature will pass words by which the operations in O'Connell Street by Free State troops will be described as a wrongful act.
No.
I suggest that to leave out the word "wrongful" in Section 14, Sub-section 9, would meet the charge.
Then I think you would have to take out the word "wrongful" in other sections.
It is not necessary.
It occurs seven or eight times. However, I am satisfied with the assurance that although the O'Connell Street damage was left out it is going to be put in.
The effect of Sub-section 9 would be to bring it in expressly —destruction by the forces of the State, in conflict with any foreign or domestic enemies of the State.
The matter will arise on Section 14.
I move the following Amendment 10:—"In Sub-section (14), line 17, to insert a new sub-section as follows:—`On the hearing of any application to which this section applies the judge may, if he think it reasonable so to do, allow any Local Authority to appear and be heard by Solicitor with or without Counsel, and to examine and cross-examine witnesses and tender evidence, and it shall be lawful for any Local Authority so to appear and to provide for the cost of so doing, and of producing witnesses and other evidence.' "
The Local Authority has an interest in any case in which the reinstatement condition attaches to the award, and having such an interest, it is desirable it should have a right to appear and be represented on the hearing of the application, to which this Sub-section applies.
Amendment agreed to.
At this stage Mr. George Nicolls took the Chair.
I beg to move the following Amendment (11):—"In Sub-section 15, to add after the word `structure,' line 20, the words, `and in the case of a building in respect of which a reinstatement condition is attached to the decree, shall mean the machinery, plant, tools and other fixtures and accessories used therein, or in connection therewith as well as the structure itself.' "
The first part of this sub-section is a definition clause, and includes house, factory or other permanent structure. That explains the desire of Deputy Day to use the word "building" in his amendment to Sub-section 10, and if it had been accepted it would probably have saved a certain amount of discussion.
The object of my amendment now is to fulfil the intention of the Ministry, and certainly the promises made by the President in his speech at an earlier stage to include in the buildings which were to be reinstated, the implements of trade in that building. "And in the case of a building in respect of which a reinstatement condition is attached to the decree, shall mean the machinery, plant, tools and other fixtures and accessories used therein, or in connection therewith, as well as the structure itself." I used an illustration on the last occasion of the Balbriggan factory, where a large sum of money was granted as compensation, with the reinstatement of building clause, the value of which was only one-fifth or one-sixth of the amount of compensation awarded, which compensation covered the main part of the machinery and stock. The intention is to ensure that if the building is reconstructed it shall fulfil something like the conditions which it fulfilled before the destruction. If a factory is to be rebuilt, it should contain when rebuilt, and when the award has been expended, the necessary machinery for carrying on the business of that factory. I think the intention of the Minister was made clear on the last occasion, and therefore it is not necessary to pursue the argument, but I hope we will have an assurance that the amendment is accepted.
The Minister for Finance, in considering this, was prepared to accept or to insert an amendment in these terms:—"The word `reinstatement' shall include replacement of fixed machinery and plant, provided the Judge may in any particular case of full reinstatement release the applicant from the obligation to replace such machinery and plant upon such terms as he may think reasonable in the circumstances." It would be obvious, I think, that only the fixed machinery and plant should be included in the premises. The other machinery and plant would be very much in the nature of stock-in-trade. The reason the Judge should have the power of remission in certain circumstances is that it may be the intention of a firm to recommence business in some other place. Their building may be burned on a particular spot, and they may intend to transfer their business to some other place. The reinstatement condition will oblige them in any case to reinstate the building, say, in O'Connell Street, where it was burned; but if their machinery and plant were there too, and if they thought well not to re-establish their business in O'Connell Street, but somewhere else, and they satisfied the Judge that they were going to do so, the Judge might remit the obligation of reinstatement of fixed machinery and plant in that particular place.
I feel the term "fixed machinery and plant" is too restricted. There are factories and business establishments where the implements of industry are not fixed, but movable, and yet may be very valuable, and will be covered by any compensation. I would urge the Minister to bear in mind that there are many businesses where the machinery, instruments and tools are movable. Take a printing establishment, which is an apt illustration. You have machinery, but probably a great proportion of the value is in the founts of type, movable resources, and to speak of the fixed machinery and plant there is too restricted.
Take the case of a printing office. If the owner is obliged to put in his linotypes or other machinery, he certainly will put in the other accessories. It would certainly be a case of allowing his property to go to rack and ruin if he were not to provide, say, the metal to run his linotypes or his mono casters. On the other hand, it would not be correct to say that in many offices there may be large quantities of particular type very little used—such type as would not be bought again if type had to be purchased. The firm might buy a different sort of type entirely, or maybe feel that it was really an unnecessary part in the equipment of the office —something that had to be bought for some reason or for some particular work, and no longer in use. They might buy something of an entirely different character if they had the money. It is felt that the position is sufficiently safeguarded with the obligation to reinstate "fixed machinery and plant." I think in any type of factory that can be imagined we have secured that the establishment will be reopened for the conduct of the industry carried on there, and I think that is really desired.
It is obvious that what Deputy Johnson has in mind by reinstatement under the name of a factory is merely a building without the distinctive and characteristic equipment which made it a factory, and is not a reinstatement for the purpose of restoring economic values to the community. Now, in connection with this Sub-section 15, which is in the nature of a defining section you will have observed the phrase was "or any other permanent structure." I may be thought overfastidious to the extent of being pedantic if I complain that permanent structure is not an easy thing to define or interpret with any degree of exactitude. Some districts in England, for instance, would refuse, under local bye-laws, to allow the erection of a dwelling house of the type which was constructed in the days of Shakespeare, and which are still in Norman towns watertight and weatherproof up to the present hour, although built in the twelfth century. Buildings which are regarded as permanent structures in Norway would be condemned in certain districts of Southern England. Some people have a prejudice to reinforced concrete. There are people who say that concrete with a steel core proved a failure in the earthquake at San Francisco, and so on. I think we might get some better approach to exactness than this. Then, again, in the definition clause we are told what market value means. But what this sub-section tells us is the meaning of market value is not what the President of the Ministry told us a few minutes ago he understood to be the market value. The expression "market value" means the "amount which the fee-simple of the building if sold in open market by a willing seller immediately before its injury might have been expected to realise, but without making any reduction or allowance on account of the possibility or probability of the building being injured in the way in which it was injured." When we were discussing an earlier sub-clause of this same Section— namely, the elaborate Sub-section 9, where it stated that the judge was to deduct the estimated market value of any remains of the building, and when I objected to that terminology, the President, in effect, made it equivalent to what is known usually as salvage value. If I have, say, furniture injured in a fire, and I make a claim the insurance company may, or may not, according to its generosity or niggardliness, deduct for the debris—the remains of what has been burned—or leave it with me. That is generally known as salvage value, and salvage value is what was intended earlier. Consequently, if this definition clause remains without qualification, then there is in Sub-section 9 of the article, a manifest absurdity.
I quite see the argument of the Minister—that once fixed plant is reinstated. it follows consequently that the movable plant will be replenished. I, therefore, accept his revised clause, and I withdraw the amendment.
Amendment, by leave, withdrawn.
ACTING CHAIRMAN
The Minister desires to propose instead:—"The word reinstatement includes the replacement of fixed machinery and plant, provided the judge may in any particular case of full reinstatement release the applicant from the obligation to replace such machinery or plant upon such terms as he may think reasonable in the circumstances."
That again is open to the objection which I made to the phrase "permanent structure." It may be that I am utterly mistaken, but what I conceive to be the purpose of the words is to indicate the type of machinery which belongs to a particular trade, is distinctive of it, and is in fact essential plant. I do think that is what is referred to—that not merely the shell of the building is to be set up again, but essential plant, distinctive of the industry or manufacture previously carried on there, is to be restored. Fixed machinery would convey to a judge, I presume, or to any ordinary mind, the image of things attached to the walls— machinery with belts working wheels, and so on. All that, though covered by essential plant, is not at all exhaustive, or co-extensive with what is intended. A factory to be a factory restored should have in it again the type of equipment to carry on the work to which it was originally devoted and for the pursuance of which it was carried on before the injury.
I would ask for leave of the Dáil to introduce the altered amendment. Of course in the case of partial reinstatement the whole thing might be different.
Agreed.
Amendment put and agreed to.
I move the following amendment:—In Sub-section (15) to delete all from the word "amount" to the word "injured," and insert in lieu thereof the words:—"price which the property might be expected to fetch if sold by a willing seller at the price prevailing in a free market for such property at the time of the award."
I think it is a much simpler, clearer and more concise definition of market value than that contained in the Bill as printed.
It is very different from a more concise definition of market value. It alters the whole basis upon which market value is to be assessed. The Clause as drafted was a Clause providing, so far as I can judge rightly and fairly, that the market value was to be the value as defined of the property at the date of the injury. What the Minister described as a more concise definition is altering that to the value at the date of the award, which may be any number of years after the date of the injury. Surely, if a man owns property, even if it be a small tenement or a mansion, or any of the other things destroyed—a hotel in Upper O'Connell Street, or a small shop —what he loses was the value of the property on the day on which it was reduced to ruins. That was the property which he had the right to sell, and the price of which he had the right to put in his own pocket. It was what was taken from him on that day and at that hour that he has lost, and that is surely the amount that ought to be paid him in compensation. The person whose property was destroyed early in 1920 or in 1921 loses what he lost then. He loses nothing in 1924 or 1925, whenever the judges may go round making their awards. Surely the Minister is not right when he describes this alteration as a mere change for the sake of conciseness in a definition. I should like to hear some reasons why the actual amount that is to be paid to the person, whatever his rank or class may be, whose property is destroyed, should be wholly changed.
The object of this Clause is to get at a more equitable estimation of the value. We all know that the value of buildings has very considerably changed within the last couple of years. We know that a building which might have had a market value of, say, £3,000 a couple of years ago, might not now have a value of more than £1,500. The figures are immaterial. If we were reinstating the building we would to-day put up for the person who lost the £3,000 building, a building costing £1,500. If a particular type of house is destroyed and the value of that house to-day would be £1,500, if reinstatement is to take place the owner is not entitled to have twice as good a house because some time ago the value of the house would have been £3,000. That is the real reason for the change. A person is entitled to have what would be the value of the house now, not what was the value at another time. I think this is equitable. I think there is no reason why a person should be given what is more than the present day value of the house.
It is not where you reinstate, because you reinstate more cheaply now than might have been done two years ago when the destruction took place, but it is a question of what the man has lost. If his property had not been wrongfully destroyed, he would have sold it at a given price any time between the 1st January, 1921, and the present day. He has lost the right of selling that property and of putting the money in his pocket. Surely what he should get in justice is what was taken from him by the wrongful act. If his property is reinstated, he gets a house not more inconvenient than the one he possessed. Therefore, the property he gets is as good as that which he lost, and he has no complaint. The person I am dealing with is the person covered by Sub-section 9, who does not get a reinstatement at all, but gets the market value of the house less the market value of the ruins. You are taking away the ruins from him because you deduct the value of the bricks and ruins from the compensation you are giving him.
I think Deputy Fitzgibbon should be cautious in his advocacy on behalf of—I was about to say clients— people referred to in Sub-section 9 of Clause 14. It must be remembered that most of those buildings are of market value according to their profit-making capacity; not as residences or because of their aesthetic value, and not as shelters, but by virtue of their sale in the market to people who would likely buy them with a view to pleasure or profit. Within two or three days before the date of the damage the market value, it must be remembered, would be practically nil. No one would buy them for the purpose for which they were used, because they were going to be a burden rather than a benefit. It is not the value or the cost of the structure, or of its reconstruction, that is under consideration, if we speak of the market value immediately prior to the injury; and I think it will be found, on examination, that some of these buildings had no value immediately prior to the destruction. O'Connell Street, it will be remembered, two or three days before the destruction, was useless, and those buildings had no value, because they were uninhabitable and unapproachable. Immediately prior to the destruction they were useless and a burden, because they had to pay rates. I suggest to Deputy Fitzgibbon that the class of people who might be included in his advocacy are likely to be better off if the amendment of the Minister is inserted rather than have the clause as it stands.
I may say that I have no clients in this matter. I was thinking just as much of the small man whose cottage was blown down in the country as the man whose mansion was destroyed. It was purely on the grounds of natural justice, that when a man loses his property by the fact of its being destroyed he should get compensation.
I wish it to be understood that I was not in any way personal. I meant the class of people whose cause, whose claims, and whose rights, he was pleading for.
I think the number of people who will be affected by this definition, and who would have sold their houses at that time is very small indeed, and the proportion of houses in the country which have actually changed hands during the period is very small. If every house had changed hands, and if we assume that everyone who had a house two or three years ago would have sold out within six months of some date we might fix, then there would be reason for talking about compensating people for a price they might have got, but when we consider how very few people indeed would have sold, I think it is looking at the thing in a lop-sided way. There is no particular justice as far as the State and the general public, representative of the State, and the owners are concerned, in insisting that people should be compensated on the basis of prices which they might have got, but which we know well, ninety-nine out of a hundred would not have got.
If there were only one, the justice would be the same.
The Minister is very fond of reiterating that the number of people concerned or likely to be injured is very small. That always struck me, when I heard that answer, as exhibiting a most extraordinary conception of justice in administration. We are asked to substitute here for a most objectionable definition another, which, while it is an improvement in some respects, is exceedingly vague. Who is to be the judge of the price which the property might be expected to fetch? Who is the prophet and the diviner to tell us what it might be reasonably expected to fetch? Notice the amount of imagination which has to be expended in this calculation, if sold by a willing seller at the price prevailing on a free market for such property at the time of the award. I presume somebody, but is it to be the applicant or the defending authority or the Judge?—but somebody has to call in these expert valuators, and there is to be a costly conflict of opinion between them as to what this might have fetched. Surely the undoubted legal ability that is behind the Ministry could be better than this in the way of definition. Apart altogether from the essential injustice that is concerned in estimating the loss, not at the time at which it was suffered, but at a later period, there is this objection, that the thing is so absolutely vague. There is no mention that the Judge is to be satisfied by reasonable evidence that the value might be such and such. There is no indication as to who it is that is to inspect, or what is to guide the decision of the Judge as to what would be a free market for such property. It might be reasonably contended, as in fact Deputy Johnson has contended, that for certain white elephant houses—great mansions—there might in the new regime be no market at all except a convent or school might, perhaps, be inclined to take them over; and then you could hardly call that a free market, because there would be no competition—it would be a non-competitive price.
I am informed that the terminology that is used here is common in Acts of Parliaments, and that there is no difficulty in this interpretation. The expression of "market value" as used throughout this Bill is used with a view to getting some method of assessing the compensation of a person who owned one of those mansions. We know very well that those mansions do not represent the cost of replacing them, either to the owner or anybody else, and I think that almost in any case that is mentioned a very large adjustment would have to be made on the actual cost of such a building. I know of one case—it is not 100 miles away from the city of Dublin—in which there is a very fine estate of probably 200 acres and a magnificent building on it. There is no doubt that the building could not be replaced for £25,000, and that estate is for sale at the reserve price of £26,000, and I believe £21,000 has been offered, and that something like £15,000 might be obtained for the 200 acres if there is no house. That is the sort of case that has to be interpreted by the Judge, and fair compensation awarded. One can see at once how difficult it is to use terms which will deal in all fairness both with the person who is claiming compensation and the State. The selling of that place by a willing seller in a free market is, I think, as far as you can safeguard the interests of the person who is making a claim for compensation.
It will be only speculative, though.
Precisely, most things are speculative. To some extent even salvation is speculative. If you take a wrong turn you will have a bad chance of your salvation, and if you do not it may also be speculative. But I think as near as it is possible to go into a matter of this sort the terms that are down will deal justly with both the State and the person claiming the compensation.
The President has unquestionably put the defence on a higher ground than the Minister for Local Government. I take it that the argument put forward by the Minister for Local Government is thereby judged to be an insufficient and inadequate answer.
You are perfectly wrong, and well you know it.
The argument was that these cases would not matter because there were not many of them. I suppose we shall shortly have it said they do not matter because the totality of their votes will not affect a great deal.
I did not make use of that argument. My argument was that justice had to be done both to the State, as representing the general public, and to the individuals concerned, and that we should not take a course that would do a great injustice to the general public and to the State, and which had merely the possibility of doing injustice to a few individuals.
In any event the argument that was put forward by Deputy Fitzgibbon has not hitherto been met, and I think it is a very important one indeed. It deals directly with the substance of this amendment. The amendment deals with the price which the property might be expected to fetch if sold by a willing seller at the price prevailing in a free market for such property at the time of the award.
At this stage An Ceann Comhairle resumed the Chair.
But the loss occurred and was continuous between the time of destruction and the time of award. The Minister for Local Government pointed out that at the time of the loss the actual value of the property might be very much higher than at the time of the award, or it might be said that the value of the property might be very much higher at any time between the time of the loss and the award, and that the person who has had his premises destroyed has lost not merely the value of that property at the time of the award, but the value as a saleable thing at any moment in between the time of destruction and the time of the award, and consequently this phrasing hits him, and is not just to him. It would be much more just if the wording were briefly, "in a free market for such property at any time between the time of loss and the time of the award," because that is exactly what the person has lost, and that is the right of freedom to take advantage of any market that might be prevailing between these two times. That argument has been made very clearly by Deputy FitzGibbon, and it has not been met, and it should be met.
Have the Ministers considered that these awards may not be made for some time, and supposing for the next four years this transcendant Ministry remains in office, and continues with legislation of the class we had before us to-day, and property in Ireland trebles or quadruples in value in consequence before these awards are made, look at the frightful fine the State will pay for keeping this Ministry in office. I do not suppose that people who are at present being kept out of these offices by these Ministers would start confiscatory legislation and generally cut down all compensation and the rights of everybody, but if the bottom falls out of the market and the value of everything in the country declines, the poor people who waited four years will get nothing at all. It has been absolutely settled law by all communities that profess to legislate that when property is compulsorily taken from anyone, or when his property is destroyed, compensation has to be paid to him for it, and it is the value of the property at the moment that it is so taken or so destroyed, that he is entitled to get. It has been so in all classes of legislation, such as for taking land for railway companies, or other public purposes of every kind and for compensation for destruction done at the present time, and no reason whatever has been suggested why in the case of these particular losses, and these alone, that that principle of compensation should be altered.
I take the matter from another point of view in support of Deputy Fitzgibbon's main contention. I would like to put it this way. It is extremely probable, or possible, that in many cases of these awards this so-called definition would prove not to be a definition at all, and then we shall have a section in the Bill with an undefined term. The so-called definition presupposes that one can imagine the concurrence of a considerable number of possibilities, but at the time of the award it may be impossible to suppose that anyone would be a willing seller in the conditions existing then, or that a free market could be found. I think that if this definition is passed in this form it will be found that in many cases awards will be made and there will be no definition to explain the term "market value."
I do not know that it would be possible to insert any other terms for compensation than what the sale of the property might be expected to fetch. If there be a better term than that, on what grounds is it being put forward? Not a free market. Surely it is expected that you require a free market, and surely it is also expected that you want a willing seller. The only point at issue, then, as far as I can see, to which exception may be taken is the particular date upon which to fix that. I do not know that you can fix a date that has gone by. You may not, perhaps, be entitled to fix it at the present moment, because of certain insecurities and so on, and we are fixing, therefore, a future date. I do not know what there is wrong about that. It has not been explained. If that particular method be wrong, where is there a better method which takes into consideration both the State and the individual? Most people know that the property affected in this instance is property which is not saleable. If you want to make it saleable, what are the grounds for it, and what is the case made that the State shall pay a huge sum for what is not negotiable, or has no market value? There is an alternative given in one place, in Sub-section 9, where a person may select suitable accommodation and ask for compensation on that ground. But I notice that one Deputy, at any rate, viewing the Ministry with a certain amount of contempt, says: "If I were there I am sure the weight of this Assembly would be much greater; and as I am not, I will never let them go without having a dig at them."
Would I be in order in pointing out to the President that the technicality employed here—"a willing seller"—is not so easy to interpret as he seems to imagine or asks us to believe. For instance, taking the practice with regard to auctions, about which I claim to know a little, an executor's sale is not commonly regarded by people in the trade as a free sale, as in the sense of a willing seller, because goods have to be sold in order to distribute the assets according to the testator's bequests. Well, here is a term "a willing seller," used. So that with regard to the free market the whole thing is speculative in the worse sense, not in the exact sense put down by the President in which his own salvation is a matter of speculation——
His political salvation, presumably.
Perhaps. The value of anything has been declared to be what it would bring in the market. Now, that is what is working, I venture to suggest, in the mind of the President. As regards the free market, the market is ordinarily constituted, whereas for the purpose of these fantastic calculations in court you are to have a fancy, imaginatively-constructed market with all sorts of provisoes, "willing seller,""free sale," and so on, whereas in life what are taken are chances. Properties are sold. Well, it happens to be a bad time. That very frequently occurs, and estates that would have realised very large sums are disposed of for a comparatively small figure. But the same estates, if sold at another period later in the year, would have brought a very much enhanced price. What I object to is that if it is to be determined by the swearing and cross swearing of so-called experts in courts it will have very little tangible basis for speculation, trying to imagine what will be a free and what will be a willing seller.
I suggest that the words that were originally put forward by Deputy Fitzgibbon really meet the case and might be accepted. If I remember them correctly they were "If sold by a willing seller at the price prevailing in a free market for such property at any time between the destruction and the time of the award."
I said the date of the injury. I did not ask that it should be given the high price if they went up in the meantime.
In that case I suggest an extension of the peak price, for this reason, because it has been pointed out that the whole definition presupposes the concurrence of fortunate circumstances that may not occur at the time of the injury, or at the time of the actual award, but which may have occurred at some time in between, when the person whose property has been destroyed would at least have had an opportunity of taking advantage of that concurrence.
Amendment agreed to.
I move to add a new sub-section as follows:—"In any case in which any land, garden or curtilage was commonly enjoyed with any building so that such building would not ordinarily have a market value apart from such land, garden or curtilage, the judge in estimating the market value of the building shall give such consideration to that state of facts as he thinks reasonable."
The object of the amendment is to make provision for cases in which the building taken by itself would not have a market value, and to enable the judge to arrive at the market value in such cases, and to take into consideration all the circumstances and facts of the particular case.
Amendment agreed to.
Question put:—"That Section 10, as amended, stand part of the Bill."
Agreed.
I move to report progress.
Shall we put this Committee on the Order Paper in the way suggested by Deputy Fitzgibbon, and take it to-morrow after the Local Government (Temporary Provisions) Bill.
Yes.