Dáil Éireann debate -
Wednesday, 8 May 1935

Vol. 56 No. 5

Road Transport Bill, 1935—Money Resolution. - Electricity (Supply) (Amendment) Bill, 1935—Second Stage.

Minister for Industry and Commerce (Mr. Lemass)

I move that the Bill be now read a Second Time. The necessity for the measure arose in this way:—A claim against the Electricity Supply Board for damages in respect to injuries sustained by a lady who came into contact with an electric light pole in Dun Laoghaire came before Judge Davitt in the Circuit Court recently. The following is an extract from the Judge's decision on this case:

"For the reasons I have expressed I am not satisfied that Section 51 of the Electricity (Supply) Act of 1927, gives to the Board either expressly or by necessary implication power to erect on a street or road poles, posts, or other such supports for the purpose of carrying electric lines for the distribution of electricity."

The effect of the judgment by Judge Davitt is that the Electricity Supply Board has no power to erect poles in any street or road, and any such poles already erected constitute a nuisance. The Judge's decision exposes the Board to thousands of actions of one kind or another. An appeal has been lodged against the Judge's decision, but it will be some considerable time before the appeal can be heard. The Electricity Supply Board has requested me to introduce legislation at the earliest possible date to rectify the position. I am satisfied, and I think my opinion is shared by all who had any act or part in the enactment of the Electricity Supply Act of 1927, that it was intended to give the Board power to erect poles, and I have agreed that this Bill should be introduced with retrospective effect.

Professor O'Sullivan

Oh!

Mr. Lemass

The Bill provides that if the lady who was a party to the action to which I have referred is successful on appeal the amount, including costs, awarded her will be paid by the Electricity Supply Board, but the Bill provides that the Board will not be liable for any award or action commenced after the 25th January, 1935, the date of the decision of the Circuit Court Judge in the lady's case, on the ground that the poles erected on the streets, railways or tramways constitute a nuisance. There are certain other minor amendments.

Section 51 of the Electricity Act, 1927, refers to any street, road, railway, or tramway, but Section 52, which deals with the same matter, refers only to any road, railway, or tramway. The omission of the word "street" in the latter section might be taken to mean that, in the case of the breaking up of a street or the erection of a pole on a street, the Board, or an undertaker authorised by the Board, would not be under any obligation to have previous consultation with the local authority. That drafting error is, therefore, being amended by the Bill. That provision cannot be made retrospective, because you could not have previous consultation in respect of an act already done; but I am informed by the Board that in all cases where the breaking up of streets, or the erection of poles in streets, takes place they consult the local authority concerned.

In view of the doubt expressed by Judge Davitt, in the penultimate paragraph of his judgment to which I have referred, as to whether the Board can exercise powers conferred upon them under Section 53 (2) of the 1927 Act for the purpose of carrying overhead electric lines over any street; road, etc., it is desired that these powers should be expressly provided in the case of any overhead wires along any street, road, railway, or tramway. That is done by another section. That is the whole purpose of the measure. It arises out of that one case to which I have referred and the decision of the Circuit Judge thereon. The person involved there is protected, but it is desired to rectify a defect in the law which became apparent in that case.

Mr. T. Kelly

Do I understand the Minister to say that local authorities will be consulted in future as to the placing of these poles?

Mr. Lemass

The Act at present imposes on the Board an obligation to consult the local authority when it is placing a pole on a road, railway, or tramway, but through an error in drafting the Act there is no reference to a street, and it is proposed to rectify that error and to place upon the Board the same responsibility of consulting the local authority when erecting a pole in a street.

Mr. Kelly

Do I understand that these poles will not be put up until the local authority has given permission?

Mr. Lemass

I did not say that.

Mr. Kelly

Then the position is that you have not interfered with the powers already exercised by the Board, that they can put up a pole wherever they think fit without consulting anybody and without reference to any authority local or otherwise. I think that is not right. I think the Minister should give the local authorities power——

An Leas-Cheann Comhairle

Before the Deputy goes any further, I think that is provided for in the original Act. The Minister has power under that Act to do that. We cannot discuss the merits of the original Act on this Bill, except in so far as the original Act is amended by the Bill.

Mr. Kelly

As far as I know the original Act is an omnipotent one— they have all power. There was a case in Clonskea where a lady objected to their putting up a pole on her lawn and they told the lady, "We can put a pole in your drawing-room and pass you no compliment."

An Leas-Cheann Comhairle

Perhaps the Deputy will give way. We cannot discuss what is in the original Act, except in so far as this Bill proposes to amend it.

Mr. Kelly

I have a very long experience of public business outside this House, but every time I stand up to speak here I more or less get into conflict with the Chair. I do not know how or why it happens, but it happens. I only want to safeguard the public interest, and I want to know whether, under the Bill, the same powers are still reserved to the Board.

Mr. Dillon

Increased.

Mr. Lemass

No, limited. The purport of the particular section is to limit the powers of the Board in that respect by requiring them to consult the local authority before erecting poles on a street.

Professor O'Sullivan

I suggest that Deputy Kelly is asking whether a certain thing that is not in this Bill should not be in the Bill. He wants a certain thing in the Bill which the Minister has not put in the Bill, and to that extent, I suggest he is in order.

An Leas-Cheann Comhairle

The Deputy is proceeding to discuss the merits of the original Act, which is a thing I cannot allow.

Mr. T. Kelly

I am only discussing the Bill that the Minister is after introducing, as I only want to try to protect the people. That is the duty cast upon every Deputy, and more especially upon the Minister. I am making this mild protest, as I want to know who is to arrange about the complexion of these posts. We have painful experience of them in Dublin. They have been put up in various streets and avenues. On some very pleasant schemes carried out by the Corporation the Electricity Supply Board has inflicted these big black hideous things. They have been stuck in little front gardens, without even permission having been asked. These poles are tarred. If they were painted black one would not mind, but they are like railway sleepers. They should at least be painted.

Mr. O'Leary

Why not paint them green.

Mr. Kelly

No, blue.

Mr. O'Leary

They would become black.

Mr. Kelly

Someone should control the colours put upon these poles. They are not to be erected in Dublin any more. They are only fit for old bog roads. If the streets of small towns and other cities are to be degraded with these things, they will only add to the drabness of these places. The Electricity Supply Board has cost this country a great deal of money. Something should be done to brighten up the towns upon which these poles are inflicted. I am sorry I cannot make my point effective by asking that there should be some local control over the erection of these poles, but I hope my remarks will stimulate the Minister so that he will see that some better provision will be made in this respect in future.

Mr. Corish

As far as the erection of these poles goes, I agree with Deputy Kelly.

Mr. Lemass

This Bill does not confer on the Electricity Supply Board power to erect poles.

Mr. Corish

I submit that it does in streets.

Mr. Dillon

What about sub-sections (2) and (3), both of which confer additional powers on the Board?

Mr. Lemass

No. I explained that the operation of Section 3 merely requires the E.S.B. to consult local authorities before erecting poles. Through an error in the original Act that obligation does not exist at present.

Mr. Corish

I suggest that the Minister stated that according to the decision of Judge Davitt they had not power to erect poles in streets, and that that is one of the objects of the present Bill. Therefore, I suggest that we are entitled to discuss it. I agree with Deputy Kelly's remarks in condemnation of the hideous poles erected in various towns and cities. It is impossible to paint these poles because they are steeped in creosote which runs out of them in warm weather. In many cases people's clothes have been destroyed. If there is to be consultation between the local authorities and the E.S.B., it should be not only for the purposes of deciding where the poles should be placed, but the kind of poles to be used in certain streets. Poles have been put up in places to which the local authorities objected. They have been put up at the corners of streets where they are a menace to the public. Local authorities made representations to have these poles removed, and when that was done, the local authorities had to pay the cost, even though they pointed out that the poles were put originally in the wrong places. I do not think that is fair. Again, when the E.S.B. erect these poles they break up the footpaths and the roadways and they leave them in that condition for a considerable time. The Minister should represent to the E.S.B. that as soon as such work is completed, the footpaths and roadways should be repaired.

Mr. Norton

I think the protest of Deputy Kelly was very timely. The Courts have now found that the E.S.B. is responsible for any damage persons may sustain if poles are put up in a promiscuous way: The Minister is now asking the House to put the E.S.B. above the law in a particular class of case, and to give the Board immunity from any liability for damage suffered by citizens that may come into contact with the poles. If the House is to do that, it should put on the Minister the obligation to make sure that the E.S.B., if it is put into a privileged position when erecting poles, will have some regard for the convenience of the citizens and public amenities generally. A case was brought to my notice recently where the E.S.B. erected a mast on land on which the owner was quarrying sand. In the course of his work he reached the vicinity of the mast, when an E.S.B. inspector came along and told him that he must not work within 50 yards of the mast, which meant that the owner could not continue quarrying sand. He got no compensation when the mast was erected.

Mr. Corry

Five shillings.

Mr. Norton

That is not compensation. It is an insult. The owner asked the Electricity Supply Board to move the mast to another place to enable him to continue quarrying sand, which was his main source of livelihood and of those he employed. The Electricity Supply Board, an institution capitalised to the extent of £10,000,000, stated that they would remove the mast if the owner paid them £30 for doing so, supplied free labour, and gave them any sand they wanted free. If the Electricity Supply Board is to be put into a privileged position, the Minister should see that some regard is paid to other people's interests and not have this Board roving around the country sticking poles where they liked. The Minister will be interpreting the feelings of the House if he tells the Electricity Supply Board that they should give that matter some more consideration in future. There was another case on the Cabra Road, where a man moved into a new house and erected a boundary wall about three feet high in his front garden. The Electricity Supply Board came along and said they wanted to erect a pole there. They proceeded to do so by cutting the wall into two parts and putting the pole between them. I should like the Minister to say if he knows anything more extraordinary than cutting a wall into two parts, to put a pole between them. I do not know where a worse example could be got. These are two instances, in the first case where the man was told he would have to pay £30 to remove property belonging to the Board, although his livelihood was imperilled; and then there was a piece of wanton vandalism. I can call it nothing else. If we are to put the Electricity Supply Board into this privileged position, seeing that it is a national undertaking, the Minister should intimate to the Board that in exercising their powers they should have regard to the fact that other people have feelings and interests that should be considered. This institution is capitalised to the extent of £10,000,000 and has been put into a privileged position. It should not use its superior financial position simply to ride rough-shod over other people's rights.

Mr. Dillon

I am afraid Deputy Kelly not only made an important point but succeeded in intoxicating the leader of the Labour Party in his eloquence. Section (2) does not go as far as he seems to think. As far as I am aware, all it does is to confer on the Electricity Supply Board legitimate wayleaves. Of course that is absolutely necessary. As I understand from the Minister there was apparently some hiatus in the original Act, and while the Board had power to pass wires over streets, they had no power to erect poles in streets. There is force in the suggestion that this Bill should be made the occasion somewhat to restrict the powers of the Electricity Supply Board in the erection of poles, and, what is even more important, the attaching of wires to private houses. I must say it is very refreshing to me to hear so stalwart a Socialist as the Deputy claims to be waxing so indignant over the infringement of private property. His proximity to Deputy Kelly seems to be doing him good.

Mr. Norton

Proximity to you would do a good deal of harm, as your colleagues will find out shortly.

Mr. Dillon

The Deputy seems to be becoming a capitalist. This casual talk of the Socialist Leader of our Republican Labour Party about private property and about the policy of going on land belonging to other men——

Mr. Norton

Is there anything wrong about it?

Mr. Dillon

Nothing. On the contrary, it fills me with satisfaction to realise that the shadow which Deputy Kelly throws over Deputy Norton is at last beginning to convert scarlet views into something that is pale, pink or delicate green.

Mr. Norton

Anything but blue.

Mr. Dillon

The leader of the Labour Party has never shown any great solicitude as to what path he travels. It does not surprise me to learn that he is prepared to adopt any political views at all.

Mr. Norton

I never had as many political views as the Deputy.

An Leas-Cheann Comhairle

We will have something about the poles now.

Mr. Dillon

It is interesting to know the Deputy is shedding his extreme Socialist views.

Mr. Norton

The Chair must have a night out.

Mr. Dillon

I agree with Deputy Norton. I think that the E.S.B. should be very sharply and drastically controlled when dealing with private property, and I am of opinion that they should be controlled not by the Minister, but by the Courts. I suggest that the Minister should take this occasion to introduce restrictions on the E.S.B., which he may remember his predecessor when in office thought were necessary. The Minister will remember that when he introduced an amending Bill 18 months ago dealing with the Electricity Supply Board legislation, Deputy McGilligan stated so many grave complaints had reached him about the arbitrary way in which the E.S.B. used the powers they had by the infliction of poles and other structures, that he had notified them before he left office that unless they interpreted their powers in a very different way, he would seriously consider introducing amending legislation to restrict these powers. I submit that the Minister, for two reasons, ought to do that now; one is that the necessity for exhaustive powers is largely past, because the greatest part of the network has been built; secondly, public feeling, as so eloquently expressed by Deputy Norton, is against unrestricted intrusion on private property by Government Departments or semi-Government Departments. I submit to him that he should signalise this first departure from the pure gospel of Socialism which has fascinated Deputy Norton to-day by giving that added security to private property, and the right of private individuals as against the State, which Deputy Norton gratifies us all by crying out for in connection with this legislation.

Mr. McMenamin

I should like to know from the Minister what provision has been made for the damages awarded in court? Are they provided for under this Bill?

An Leas-Cheann Comhairle

The Minister to conclude.

Mr. Lemass

I am afraid that I must adopt an attitude somewhat opposed to the very conservative and reactionary position taken up by Deputy Norton, in which he was supported by Deputy Dillon.

Mr. Norton

If you were one of those sandmen who lost their work you would not take up that attitude.

Mr. Lemass

The Deputy is trying to mend his hand now. When he spoke he was protesting against the rights of private property being interfered with by the requirements of a nationalised service. We have a nationally owned electricity supply service, the requirements of which under the provisions of the Act of 1927, and in accordance with the Act of 1927, are given priority over certain rights of private property. Deputy Norton, judging from his remarks, obviously objects to those poles, which are necessary for the service, being placed inside the wall, outside the wall, or even in the wall. But they must go somewhere. The only alternative to placing those poles somewhere is to have the wires carried underground. If they are carried underground a very large number of workers occupying houses which are being built by the Corporation, and other working-class dwellings throughout the country, will not get the benefit of the electricity supply, because it will be too costly.

Mr. Norton

My point is that they could have been put outside the wall or inside the wall, but they need not have destroyed the wall.

Mr. O'Leary

I should prefer having them put in the wall if the land belonged to me. I am sure Deputy Corry would too.

Mr. Lemass

In any event there is not much point in discussing that now. Those poles have been erected all over the country. It was assumed always that the Electricity Supply Board had adequate powers to erect them. They were required by Section 52 of the Act to consult with the local authorities— and in fact did consult with the local authorities—before erecting them.

Mr. Corish

For what purpose?

Mr. Lemass

The purpose is not stated in the Act.

Mr. Corish

There you are. The consultation is no use; they go and put them up afterwards.

Mr. Lemass

A certain lady came into collision with a pole, and acting upon the best legal advice took the matter to the Circuit Court, where the Circuit Court judge interpreted the Act in such a manner as to cast doubts upon the powers of the Board to erect those poles. He awarded the lady damages, thereby declaring those poles to be a public nuisance. The position therefore arose that either the Electricity Supply Board had immediately to remove all the poles erected all over the country or face the prospect of having some person in every street accidentally or otherwise colliding with a pole, and sustaining a claim for damages against the Board. The prospect of having those poles removed was one we could not contemplate. It would involve very considerable expenditure, and would interfere seriously with the financial success of the nationalised electricity supply.

Mr. Norton

You should have exterminated the people!

Mr. Lemass

In this Act we are taking steps to remedy a defect in the original Act. There is no doubt as to what was the intention of the framers of the original Act; they intended to give those powers to the Board. The drafting was apparently somewhat faulty, judging by the decision in the Circuit Court, which may, however, be reversed on appeal. An appeal from that decision is being taken. In the meantime it is no harm—it is in fact advisable—to give notice to other persons, who might desire to take advantage of the Circuit Court judge's decision in order to institute actions against the Board, that those actions are likely to be fruitless. We are protecting the interests of the lady who was involved in the original case, but are reserving to the Board the powers that it was intended to give them, and invalidating any action started after the date of Judge Davitt's decision.

The other sections in the Bill are, in a sense, consequential upon that. In the examination of the sections for the purpose of amending them it was discovered that another drafting flaw had occurred. Whereas the Board was given power to erect those poles on a roadway, a street, a railway or tramway, the following sub-section, which places upon it the obligation of consulting the local authority, referred only to a road, a railway or a tramway. Consequently, there did not appear to be any obligation on the Board to consult the local authority before erecting a pole on a street. The Board have in fact always consulted the local authority concerned before erecting a pole on a street—at least so I am assured by them.

Mr. Corish

I should like to ask the Minister what is the meaning of a consultation in that case, because what really happens is that the Electricity Supply Board notifies the local authority that it is going to do such and such a thing. That is all about it. There is no consultation at all.

Mr. Lemass

I think on the next occasion on which the Electricity Supply Board approaches the Dublin Corporation, Deputy Kelly, who is a member of the Dublin City Council, will be able to press his point about having those poles painted whatever colour he desires.

Mr. Norton

He has no power to press anything.

Mr. T. Kelly

Put it in the Bill— paint instead of tar.

Mr. Belton

It would be no harm to make them go along where there are houses and the poles might be used, instead of across the fields where there are no houses.

Mr. Lemass

The other section is also an amendment consequential on Judge Davitt's decision, and necessary to remove a certain doubt created by that decision as to the interpretation of the Act of 1927. That Act obviously intended to give the Board those powers, and the Board has in fact acted for the last six or seven years as if it possessed those powers. It would be impossible for it now to undo all the work it did under those sections in the interval. Therefore, the provisions of this Bill must be made retrospective.

Question put and agreed to.

Committee Stage fixed for Wednesday next.

The Dail adjourned at 10.30 p.m. until 5 p.m. to-morrow, Thursday, 9th May.