In Committee on Finance. - Foreshore Bill, 1933—Committee Stage.

Sections 1, 2, 3, 4, 5, 6, 7 and 8 agreed to.

In the absence of General Mulcahy, I beg to move the amendment standing in his name:—

Before Section 9 to insert a new section as follows:—

(1) If and whenever the Minister is of opinion, whether, following the receipt of representations from any local authority or otherwise, that the entry of the public or the use by the public of any particular area of foreshore, whether belonging to Saorstát Eireann or not, for purposes of recreation is desirable in the public interest the Minister may by order declare such part of the foreshore available for such recreation purposes and may by order make regulations regulating or controlling in such manner to such extent and for such period, limited or unlimited, as he shall think proper the entry of the public on or the use by the public of such area of foreshore for purposes of public recreation.

(2) Every person who shall do any act (whether of commission or omission) which is a breach of a regulation made under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.

(3) Whenever the Minister has made or proposes to make a regulation under this section, the Minister may if he thinks fit hold a public inquiry in regard to the continuation or the making (as the case may be) of such regulation.

(4) Regulations made under this section shall not extend to or affect the use of any foreshore for the purpose of navigation or of fishing nor the removal of beach material from any foreshore.

(5) Whenever the Minister has made an order under this section, any local authority shall be empowered to acquire such lands as may be reasonably necessary for the purposes of providing public access for persons and vehicles to that area of foreshore and for this purpose Section 36 of the Local Government (Ireland) Act, 1898, shall apply.

I think that the object of the amendment appears sufficiently clear from its terms. It would appear that the amendment aims at giving power to the Minister to acquire a suitable portion of the foreshore for public recreation and to regulate the use by the public of such portion of the foreshore as the Minister requires and to enable public inquiries to be held as to whether certain portions of the foreshore should be acquired or to dedicate such portion of the foreshore as belongs to the State for the use of the public.

I think that the purpose of the amendment is quite desirable but I do not think it is necessary, having regard to the provisions of Section 8 of the Bill and to Section 36 of the Local Government (Ireland) Act of 1898, which enables the local authority to acquire any portion of the foreshore for the purposes of a recreation ground or a walk. In addition to that the local authority as the roads authority has power to acquire land if necessary to enable the public to have access to any portion of the foreshore.

I should like to know has the Minister defined boundaries of the foreshore under this Bill. I know that the Government has power to make regulations, but will these regulations have effect with regard to the gathering of seaweed and shellfish on the foreshore?

The boundary of the foreshore is the line on the shore to which the tide flows at high water on a calm day when the height of high water is midway between the height of high water of ordinary springs and the height of high water of ordinary neaps.

I should like to ask the Minister, with regard to the amendment, whether the terms of Section 8 sub-section (1) are not somewhat restrictive. The Minister takes power there to enable him by order to prohibit, restrict, regulate or control the entry of the public. It struck me that the terms of that sub-section were such that, where there was a challenge by any person claiming to own the foreshore and to prevent the public use of it, the Minister was restricted by the terms of this section in such a way that the Minister could not in these circumstances attempt to regulate the entry of the public. I should like to know, if the Minister thinks that the whole of my amendment is unnecessary, whether he might not arrange that this section would read:—

"If and whenever the Minister is of opinion that the entry of the public on or the use by the public of any particular area of foreshore belonging to Saorstát Eireann ought in the public interest to be permitted, prohibited, restrictéd, regulated, or controlled, etc."

The insertion of the word "permitted" would, I think, meet what I have in mind. Certain of the sections deal with parts of the foreshore not belonging to Saorstát Eireann. My amendment would give the Minister power where there was a claim that the foreshore did not belong to Saorstát Eireann to make provision for the entry of the public on a foreshore of that kind.

That would be an interference with the rights of the owners of the foreshore which, I think, would be somewhat of an innovation. Generally speaking, the greater part of the foreshore is the property of the Saorstát and, so far as that portion is concerned, the public have the right to utilise it. The only power we want is to regulate their use of it and to prevent abuses which would make it unsuitable for public use, such as the depositing of rubbish or other objectionable matter of that kind. In the case of a foreshore privately owned or the property of a local authority or from which the public are excluded, there is the power of acquisition under this Bill on behalf of the State, and the local authorities also have power under the Local Government (Ireland) Act, 1898. I do not think there is anything necessary in that connection because if there is a public demand for the use of a particular foreshore for public purposes it can be acquired by the State or the local authorities.

The Minister may remember that I mentioned before, and I subsequently spoke to him privately, about looking into the question of corporations and persons holding a foreshore by Royal Charter from early times. In that respect I will mention one charter granted to the City of Waterford in the 17th century entitling them to the use and ownership of a certain part of the foreshore. Do any of the provisions of this Bill qualify the right of persons holding under such a charter or is it the intention to qualify such right?

This Bill has two purposes. One is to permit of the leasing of foreshore which is the property of the State or otherwise regulating its utilisation. In so far as that is the policy, it is limited to foreshore which is State property; that is, the property of the central State authority, not the local authorities. The foreshore which is the property of the Waterford Corporation is the same as privately-owned foreshore. It is not subject to that Part of this Bill.

This Bill gives the Minister power in certain cases to interfere with foreshore no matter who owns it, where such interference is necessary to prevent coast erosion, for the purposes of navigation, to prevent impediments being erected which might interfere with navigation or where structures upon the foreshore might destroy the amenities of adjoining foreshore which is the property of the State. In such cases the Minister has power to interfere with privately-owned foreshore. In so far as the power of leasing, controlling or regulating is concerned, this Bill relates only to publicly-owned foreshore and not foreshore privately owned or owned by local authorities.

Amendment, by leave, withdrawn.
Sections 9 to 13, inclusive, agreed to.
SECTION 14.
Question proposed: "That Section 14 stand part of the Bill."

With regard to Section 14, the proposal there is that no person shall throw, deposit or leave on any tidal lands or throw into the sea adjacent to any such lands any articles which might cause injury to a person bathing or wading on or from such lands or otherwise using material or substance which might be injurious or offensive to any such person. In view of the purpose of the section I think the restriction to tidal land is too great a restriction. I suggest that it should read: "No person shall throw, deposit or leave on any seashore or throw into the sea adjacent to such seashore." The point is that the seashore includes the foreshore and every beach, bank and cliff contiguous thereto and includes all sands and rocks contiguous to the foreshore. If the section is left as it is, it applies only to the restricted area of the beach; that is, the tidal lands. It is quite well known that the part between the boundary of the tidal lands and the boundary of the seashore is more usually used for the depositing of rubbish and the creation of nuisances of various kinds. That is also the part of the shore that is as usually used by the people as are the tidal lands themselves. If the Minister will consider this matter I think he will agree that he would want to extend the boundary as regards the throwing of dangerous articles or rubbish or other offensive matter.

The section states: "No person shall throw, deposit, or leave on any tidal lands or throw into the sea adjacent to any such lands." That, I assume, would cover any stuff that would be thrown up on the shore by the ordinary action of the tides. I imagine one of the principal abuses is the discharge of waste oil by vessels in a position contiguous to the shore. If that is so, does the Minister not consider that the maximum penalty is insufficient? Does he not think that it should be possible to inflict a more exemplary penalty than £5 for an offence of that kind?

As regards Deputy Mulcahy's point, the tidal lands are, of course, more extensive than the foreshore in so far as they are the lands below the line of high water of ordinary spring tides, and that covers the whole of the strand on any part of the coast. It does not cover the fields or cliffs or hills that may be behind the strand. In the majority of cases that area is private property and not subject to our control. In relation to it we might have considerable difficulty in so far as the land behind the tidal land might be walled off, or might be part of a factory. We can control the tidal lands which includes the strands used by bathers. We are anxious to ensure that these are kept in proper order and that there will not be an area, such as from Blackrock to Dun Laoghaire, a complete litter of rubbish.

We are enabled under this measure to fine anybody depositing rubbish or dirt on any strand used by bathers or children on holidays. I think it is quite sufficient to have power to do this in relation to the strand as such. We might find ourselves getting into considerable complications if we tried to extend our control to the lands behind the tidal land, which in some cases might be used for all sorts of purposes by the people who own them and who are entitled so to use them subject to the public health laws in the matter of creating nuisances.

On the point made by Deputy Dillon, it is, of course, true that some part of the nuisances on stretches of the seashore is created by the throwing up of waste oils, discharged from steamers. But I am afraid we would never identify the steamer that threw up the oil and caused the nuisance and, consequently, we would never be able to impose the fine. The people I want to get at are the people who are depositing rubbish. The maximum fine of £5 is sufficient, because this maximum fine could be imposed for each offence, and the fine would progressively increase as the number of offences grew.

Of course, the Minister has had expert advice. I am not sufficiently certain, but my recollection is that in certain large harbours and in the waters adjacent thereto restrictions are at present in force and are being enforced on the matter of the scattering of oil in the harbours. I think there was some Act passed by the British Parliament dealing with the protection of sea birds. I do not know whether the Minister has power to exact a penalty under such an Act, but that very Act on the British Statute Book suggests that there is some means of protecting these harbours. However, if the Minister does not think it worth consideration, I do not wish to press it. I imagine, however, it would be of assistance to him if he increased the penalty to £100. This would be in connection, of course, with shipping companies, and a fine of 10/- or £1 would be no use in their case, while it might be enough in the case of an ordinary citizen.

Are we proposing to use the police under these sections of the Bill? If not, how is the Minister going to enforce them? Who is to be responsible for watching these foreshores?

The Gárda Síochána.

Is the Minister aware that in the South of Ireland, recently, some inquiries were held and orders made as to the prohibition in these cases.

That is a different matter. There are other sections of the Bill which prohibit the removal of beach material for the purpose of preventing erosion. In such cases the Bill provides for local inquiries. These two sections are designed to prevent rubbish and dirt being thrown upon the strand which would interfere with the amenities of the locality, and prevent bathing on the strand.

Section 14 agreed to.
SECTION 15.
(1) Where on the fixing of a judicial rent under the Land Law Acts a sum was added to or included in such rent for any foreshore or on account of any right or facility or alleged right or facility to or for taking material from any foreshore, the order of the sub-commission or court fixing such rent shall not be in evidence, as against the State, of the ownership of such foreshore or of the existence of a right to take such material.
(2) Neither the taking, during any period however long, from any foreshore of seaweed deposited or washed up thereon by the action of tides, winds and waves or any of them, and not rooted or growing thereon, nor the letting or licensing to other persons, during any period however long of an alleged right to take such seaweed from any foreshore shall, by itself and without more, constitute possession of or be proof of title to such foreshore.

I would like to hear the Minister on this section.

This section is necessary. It is intended to emphasise the State's title to the foreshore in cases where that title might be disputed because a practice has grown up for a number of years of people removing beach material from the foreshore. In such cases these people might claim they are the owners of the foreshore, and that the State is not the owner. This section is designed to emphasise the ownership of the State except in the case of a clear title.

What makes me uneasy is sub-section (2) of Section 15. There you have the position that where people had a right in the past to take seaweed thrown up on the foreshore, that right will not exist under this Bill. I do not know whether any people haveprofit a prendre on the seashore of this country, but I do know that a very great number of people in Donegal, in Kerry and in Connemara are largely dependent on their supplies of seaweed for manuring their land on the manure they get from the seashore. The working of their land would not be an economic proposition at all if they had not these supplies available. I imagine they have acquired a profit a prendre over the seashore, but it appears to me that this section would strip them of their profit a prendre.

If they have a right, it is not intended that they should be deprived of it. What the section provides is that the mere fact of their doing it over a long period of years does not of itself, without more proof, constitute ownership.

The Minister is surely aware that easements exist in the country. A very large number of easements in this country exist, and the only proof you have of them is that they have been doing that without let or hindrance over a number of years.

It is the normal way of proving an easement.

The fiction that there was at one time a deed and that the deed got lost and that it is in virtue of that deed that you are doing it would be the position. The claimant will be called upon to produce the deed. The courts assume that the deed is one which has been granted before the time of Richard I. That has now become a pure legal fiction. The period is 12 years.

No, it is 60 years against the Crown.

It is 40 years.

If these people were for 40 years drawing seaweed from a foreshore, as many of them were, they have a very valuable right. The Minister should be reluctant for the sake of purely administrative convenience to strip them of that right.

Is the Minister aware that in the County Cork several people have established a right to take seaweed from the foreshore by proving 60 years usage? I was present myself at a case before the Chief Baron in Cork, when it was established that they had acquired the right of taking the seaweed after a period of 60 years.

I do not want to be in the position of giving what is known as a Capel Street opinion on a section of this kind. There is a slight distinction between what is worrying Deputy Dillon and what is in the Bill. The Bill, as I read it, deals with the question of title to the foreshore, whereas what Deputy Dillon has been worrying about is the right over the foreshore. That is a distinct thing from the foreshore itself. In other words, the State may be entitled to the actual bed of the foreshore, but the ordinary citizen may have a right over that foreshore to take seaweed or any other material. As I read this section it has no relation whatever to the question or right ofprofit a prendre. It deals with the titles to the foreshore.

It does not mean that a person could not establish any title over the foreshore?

I think not.

This matter has been under examination for a long time. I do not mind confessing to the Deputy that this section caused me some concern. This Bill was to a large extent produced a considerable time ago. I found it in a very advanced stage of preparation when I became Minister for Industry and Commerce and I was concerned about the effect of this particular section. I arranged that the Department of Lands and Fisheries which I thought should be interested in this matter, should be fully consulted. They were satisfied that nothing in this section was going to interfere with the people who were principally concerned about the foreshore and who might be engaged in the collection of seaweed for the manufacture of kelp. It is clear that what is intended to be provided here is that the ownership of the foreshore cannot be claimed by any person merely on the ground that he and his forefathers have for a long number of years been gathering seaweed there. The right to take seaweed is subject to certain limitations under this Bill. It might in certain cases be that we would enforce regulations in this matter, that people should be licensed and certain measures of control adopted. Ordinarily there would be no interference with the practice which has been in existence in the past except where there was public need. It is clear that the intention is merely to ensure that the ownership of the foreshore rests in the State and that the State title to it has not been impaired by the fact that for a number of years people have been collecting this seaweed.

The Minister will excuse me pressing the matter, because, I need hardly explain to him, it would be a catastrophe to many of my constituents if their easement was interfered with. I would ask him if he would, in the Seanad or at such other time as is convenient to him, consider the insertion of some words, or of a new sub-section, providing that nothing in the Bill should be interpreted as abolishing an existing easement.

Nothing in this Bill abolishes anything that exists by right in anybody.

There is the possibility there, and there may be the possibility under certain sections giving him power to make regulations which would vest in the Minister the right to extinguish an existing easement. If no such intention is in the mind of the Minister, the situation could be safeguarded by a sub-section saying that nothing in this Bill shall operate to extinguish any easement existing on the date the Bill became law.

I do not think it is necessary, but I will have the point considered.

I understand the section applies only to the taking of seaweed. Would it apply to the practice of taking sand? There is a very big industry in the export of sand and when Fords were working in Cork they used quite a lot of that sand, which they found essential for their purpose.

This section relates only to the taking of "seaweed deposited or washed up thereon by the action of tides, winds and waves, or any of them, and not rooted or growing thereon." It relates only to seaweed. There is power in the Bill to prohibit the taking of beach material, sand or gravel, where such prohibition is necessary for the purpose of preventing coast erosion or damage to harbour works, or anything like that.

Certainly, in West Cork a question arises which it is necessary to clear up as to an ordinary person taking seaweed or sand. I would be perfectly satisfied with what the Minister said, but it is not the man who makes the law that administers it. That is one great danger. I would advise the Minister against creating a position unnecessarily of stopping the taking of sand. A case might be made that the taking of sand would possibly make an island of part of the land. I would like to be assured that this will not interfere with the ordinary rights of persons for the cultivation of the land with seaweed and sand. That should be allowed to be continued if it will not interfere with the foreshore or cause coast erosion. I believe that one act of God in one night would do more than the drawing of sand and gravel for 300 years. I should like to be assured that the people will be allowed to draw sand and seaweed, if it will not interfere with the foreshore.

While I yield to Deputy Costello in everything he says about the law, I have some experience of these foreshore cases in County Cork, and there was a clear distinction drawn between a foreshore vested in the State and a foreshore vested in private individuals. For instance, the whole foreshore of Bantry Bay was vested in the late Lord Bantry, but you could establish a right against Lord Bantry by having used it for 30 years. Against any foreshore vested in the State, however, it requires 60 years of clear usage. Several people in County Cork gave conclusive proof of such usage and got decrees in their favour. The question now is whether this section will interfere in any way with these rights, some of which have been established by decrees given, and some of which may come before the courts later on to be established by clear evidence.

Although what Deputy Hales said does not arise on this section, I should like to say that the Bill gives power to prohibit the removal of sand or gravel from the foreshore, where the prohibition of such removal is necessary in the public interest. It has been the practice in every case that I have any knowledge of, where such prohibition is enforced, to permit farmers residing in the locality to draw sand for manurial purposes. When Deputy Hales talked about the practice, he is, in fact, referring to sand drawn by farmers for manurial purposes, and he is forgetting that in recent years, with the advent of cement, and the extended use of cement, sand is being drawn for sale to persons erecting buildings, or constructing roads; and that gravel is also being drawn from the shore for sale—very frequently for sale to local authorities, who are very often quite reckless in this matter of the removal of sand in large quantities and, particularly, the removal of gravel, which is the natural bulwark created by the sea for the protection of the land. That has caused very extensive erosion. Wherever that has occurred, and a local inquiry has demonstrated that it has occurred, a prohibitory order is made. As a rule, as I have said, we protect the interests of the local farmers who require sand for manurial purposes. But where a prohibitory order is made, the drawing of sand or gravel from within the prohibited area is made an offence, and the prohibitory order must be fairly rigorously enforced. This section does not deal with that. This section is merely designed to secure that the mere fact that people have been drawing seaweed for a number of years does not, by itself, constitute evidence of title to the foreshore. Some other evidence of title must be produced than the fact that the seaweed has been taken for a number of years previously.

Mr. Burke

Does it interfere with their right to draw the seaweed?

There is sea-wrack washed up by the tide.

It relates to seaweed only.

Section put and agreed to.
Remaining sections, Schedule and Title, agreed to.
The Dáil went out of Committee.
Bill reported without amendment.