Arterial Drainage Bill, 1944— Re-Committal (Resumed).

Before we resume consideration of the amendments, I should like to say that I raised a question yesterday with regard to an amendment which I put down on the Committee Stage. I understood the Parliamentary Secretary to say that, while he might not accept the amendment in the form in which it was put down, he was prepared to bring in an amendment himself to meet it. The Ceann Comhairle said that he thought the amendment to cover it would come on later. The amendment was in connection with Section 13. The Parliamentary Secretary will remember that I moved an amendment providing that no certificate of completion would be issued without the assent of the Minister for Local Government. That was debated pretty extensively. The Parliamentary Secretary said he could not accept the word "assent" but that he would bring in an amendment which would meet it in substance.

We have done that. We have provided for consultation with the Minister for Local Government. That is one of the points you asked us to provide for.

No, it was not. What you provided for was only a nominal amendment, that the Minister for Local Government would be one of the Ministers consulted. But the main amendment was that the certificate of completion would not be issued without the assent of the Minister for Local Government. I argued that the Minister for Local Government was one of the essential Ministers and the matter was pretty extensively debated. I understood the Parliamentary Secretary to say that, while he would not accept the word "assent", he was prepared to bring in an amendment himself.

I do not think I was so kindly disposed to that amendment as all that. I cannot imagine my being so kindly disposed to it as even to say that I was prepared to consider it. I think that I opposed that very vehemently, in fact. I pointed out quite clearly that we could not, of course, leave to the decision of the Minister for Local Government the question of when a scheme is completed.

The Parliamentary Secretary argued that he could not accept the word "assent". It was on that word that the difficulty arose. I am almost certain that he promised he would bring in an amendment himself.

Debate resumed on amendment No.24.

We were discussing amendment No. 24 last night and the Parliamentary Secretary informed us that it was intended, as a matter of fact, to give greater discretion to the county councils concerned in the two schemes mentioned in the amendment for the purpose of increasing the amount provided for maintenance. I feel rather uneasy about the amendment, because the Parliamentary Secretary is aware, of course, that for some time past there has been an agitation on foot for the purpose of getting the Board of Works to spend a substantial sum of money in putting the Owenmore river in a proper condition. According to the county council's engineer, it would require a major drainage scheme to put the Owenmore river in a suitable condition. For that reason, I feel that the county council may be saddled with a very heavy liability in the future after the transfer Order is issued under Section 37 of this Bill. The county council may find themselves saddled with such a heavy liability that the rates may be strained to the utmost to meet it. As Section 22 stands at present, the county council is safeguarded, because, of course, they cannot exceed the sum of £500 provided for in the Owenmore Act for the maintenance of the river. By taking away that safeguard the floodgates are left open and the county council may find themselves in such a position in the coming years that they will have to face an enormous demand from the Board of Works. I want, if possible, to safeguard the county council and the ratepayers of the county generally against such a possibility. The same thing applies to the county councils concerned under the Barrow Drainage Act. Of course, I am concerned chiefly with the rivers in my own constituency and with the ratepayers in my own constituency.

The Parliamentary Secretary indicated that the amendment was introduced for the purpose of facilitating the county councils, enabling them to spend more than £500 if they considered it was necessary to do so, in order that the river would be adequately and properly maintained. But there is the danger which I indicated, that if the law is amended in the manner in which the Parliamentary Secretary wants to amend it, the county council and the ratepayers in Sligo may find themselves faced with heavy demands in future years, demands that will impose such a strain on the rates that they will not be able to meet them.

Deputy Roddy points out that the Parliamentary Secretary has informed the House that the amendment was introduced for the purpose of allowing the local authorities to spend more if they considered it necessary to do so. I think he should have gone further and said that under Section 29 they may be compelled to spend a lot more than they feel it is necessary to spend, and they have no right to appeal to any court. That is the difficulty I see about this matter. While it may be necessary and wise to spend money on the maintenance of drainage works, the local authorities, if they feel they are suffering under a grievance, will be denied the right of appeal to any court.

If we give that power to a Department of State, it may be abused. For instance, there might be an acute unemployment problem to be solved and extraordinary powers of this sort might be used to put men on maintenance work. That will be charged up against local authorities. As the law stands, there is a limit to the amount of money that can be raised for maintenance work. The moment we remove that we are entering the danger area. We are being asked here to trust the drainage authority absolutely as to the amount of money that is to be spent in the future. The local authority will have no say. Even before the transfer Order operates, if the drainage authority decides that drainage is not being kept in a proper state of maintenance, they can compel the local authority to spend more. Once the transfer Order operates and it becomes the responsibility of the commissioners to maintain the work, they can spend whatever they think necessary and present a bill to the local authority and the local authority must pay.

The Parliamentary Secretary ought to give the House some assurance on that matter. It is difficult to put a limitation on the maximum amount that could be raised for a particular purpose. We are simply handing over absolute control to the commissioners and they are to be the final arbiters in the matter. The whole scheme is very drastic.

I do not think there is any reason for the fears to which expression has been given in so far as the operation of this amendment or the section to which Deputy Hughes has referred is concerned. This amendment was introduced with the object that I have already explained. There is no subtle plan; there will be no question of taking advantage of anyone, nor could advantage be taken of the amendment to do any of the things Deputy Roddy stated.

I think so.

The Parliamentary Secretary is wrong there.

Let me explain. Any person knows what it means to maintain a river. There is no question of deepening the channel or widening the channel. It is a matter of removing anything from the channel that is obstructing the flow of water and keeping the district in a condition similar to the condition in which it was at the time it was constituted and the scheme carried out.

That is not stated in Section 29.

Everybody knows that is maintenance, and what I am proposing here is that to the extent that it might in any one year be found impossible to maintain the Owenmore at the figure specified in the Act of 1926, the local authority charged with the responsibility of maintaining that river should have power to increase that amount if it found it was necessary to do so.

In the case of the Barrow, the estimated annual value of the land that has been drained by the Barrow scheme is somewhere in the neighbourhood of £6,200. The House is aware, and Deputies from that area are aware, of the method by which the maintenance was financed. They are aware also of the new method that is proposed here and they are aware that the rough estimate given as necessary for the maintenance of the Barrow was in the neighbourhood of £6,500. We have some doubt as to whether or not the county councils concerned would be limited to a sum of £6,217, and we are anxious to ensure that these local bodies will have power to increase that amount from the flat rate, if necessary, in order to ensure that the works handed over to them will be kept in a proper condition. That is all we are asking.

The idea of the new works that Deputy Roddy talked about, new works that, on the advice of local engineers, might be necessary to make a 100 per cent. job of the River Owenmore, and the idea of using this amendment for the purpose of slipping the responsibility for such a problem over on the ratepayers of Sligo could never materialise. Naturally, I have tried to get my mind clear as to what powers this gives us. I know it does not give us the powers that are feared by the Deputy. It really means nothing more than enabling the local authorities concerned to maintain these rivers up to the standard at which they were handed over when the districts were constituted.

The Parliamentary Secretary has not attempted to answer our point at all. We understand, of course, what he is at: that he wants to increase his power to raise and spend money on maintenance, and, if necessary, to go outside the limits set by the original Acts. Our point is that the moment that limitation is removed the door will be opened wide for the expenditure of any sum of money.

That is not so.

The Parliamentary Secretary can say that maintenance really means maintenance in the existing condition.

What, in your opinion, does it mean?

I believe that you can spend a good deal of money, and that it could be argued that it was still money that was being spent under the head of maintenance. You could spend money not merely on removing the silting up that may occur in the bed of a river but on the trimming of the edges of a river and on all sorts of things. Work of that kind would still be described as maintenance.

Surely it is maintenance.

The degree of maintenance that is necessary and economic from the point of view of the ratepayer is the thing that we are worried about. The Parliamentary Secretary has not attempted to answer that.

If a channel is cut 12 feet wide and four feet deep, is it not maintenance to keep it to that width and depth?

The commission which was set up gave you a solution which you were not prepared to accept, that is, the right of appeal.

The Deputy has spoken about the trimming of the edges of a river. It would not be maintenance if we could not do that. Suppose a channel is cut 12 feet wide and four feet deep, and that you allowed that to keep silting and filling up so that the channel became only eight feet wide, would clearing that be maintenance?

Would the Parliamentary Secretary agree to amend his amendment by adding the words: "to be raised by county councils", or whatever words will suit the Parliamentary draftsman?

In what way do you mean?

"Nothing contained in sub-section (1) of this section or the River Owenmore Drainage Act ... shall be deemed to limit the amount of any moneys raised by——"

That is what it means.

Amendment, by leave, withdrawn.

Mr. Corish

On behalf of Deputy Norton, I move amendment No. 25:—

In page 15, to add at the end of Section 22, line 44, a new sub-section as follows:—

Whenever in an existing drainage district there were outstanding on the 1st day of April, 1943, any arrears in respect of the drainage rate levied in such district on the owners or occupiers of benefited land, such arrears shall on the passing of this Act be funded in accordance with regulations made by the Minister, and the Minister is hereby authorised to make such regulations.

I think it is generally recognised that a great deal of dissatisfaction prevails in certain parts of the country subsequent to the carrying out of certain drainage work. We know that there were certain land owners who did not pay the rates owing to this dissatisfaction. I do not think it is unreasonable to ask the Parliamentary Secretary to make provision that those arrears should be funded in the same way that the arrears of land annuities were funded in order to bring about a happy atmosphere and get the co-operation of all the people.

I am afraid that I cannot go any further in meeting this point than I have gone in Section 28, in which power is given to the local authorities to make whatever concessions they can in the way of meeting people who are in arrears with their rates. I have already explained that they can take the payment of these arrears from them in any way they like.

Mr. Corish

Is there any local government legislation that would cut across that?

No. They are perfectly free to make their own arrangements as regards the collection of outstanding arrears. I think there need not be any hardships at all as a result of the operation of Section 28.

Amendment, by leave, withdrawn.

I move amendment No. 26:—

In page 15, Section 23 (1), line 49, to insert before the words "as theretofore" the words and brackets "(whether by themselves or by a committee or joint committee)".

Amendment agreed to.

I move amendment No. 27:—

In page 16, Section 22 (2), line 13, to insert before the word "final" the words "award or".

Amendment agreed to.

Mr. Corish

On behalf of Deputy Norton, I move amendment No. 28:—

In page 16, to delete Section 23 (2) (e), lines 22-28.

This provision is a necessary safeguard. If it were not there the local bodies to whom work was transferred would be open to all sorts of attack by individuals whose lands were flooded. You must have this protection.

Amendment, by leave, withdrawn.

I move amendment No. 29:—

In page 16, at the end of Section 23 (2), to add a new paragraph as follows:—

(h) until such time as the Commissioners have put into repair drainage works and embankments transferred to county councils under this section, and have issued certificates of such repair, no county council shall be held responsible at law for damages arising from the present condition of such drainage works or embankments.

On the Committee Stage I pointed out the necessity for a provision of this kind to save local authorities. I am still more convinced of the necessity for it when I turn to Section 29. Despite any undertaking that has been given by the Parliamentary Secretary, the commissioners are taking compulsory powers in Section 29 to notify a county council that maintenance work is necessary. If the local authority fail to do it the commissioners, who are subject to no authority but their own, can go in and incur any expenditure that they think fit. The cost will fall on the local rates. I had interviews with the Department about the embankment at Youghal. I am informed now that it is about 50 per cent. in the urban area and 50 per cent. in the country area. The embankment is in a precarious state. Added to that there are tenants who have drainage rights into the River Blackwater. Those rights were rigidly adhered to when the place was occupied by the late owner. The land was subsequently sub-divided and is now in the hands of tenants who have not the necessary means to keep the drains open. Within the last two years legal proceedings were instituted against the Land Commission, when it was discovered that the Land Commission had no authority. The matter really rested with trustees whose funds were not capable of doing the work. If these works were to be transferred to the local authority in their present condition, then the liability for repairs would fall on it. There are people living behind the works who have rights which can be maintained in law. It is with the object of safeguarding the local rates from this unexpected or, I might say, unapproximated expenditure that I am moving the amendment. I rather deplore the provision in the Bill which transfers funds in the hands of trustees to the Treasury while it hands over the liability for maintaining the embankments in their present position to the local authority. The Parliamentary Secretary said that the amount involved by those trustee funds was small. That is all the more reason why he should not bother with them. If the amount were substantial, if it were like the teachers' fund, a matter of a couple of millions, it would be of some advantage to the Exchequer and there might be some justification for treating it in this way but I see no justification for dealing in this fashion with amounts which are admitted not to be very substantial. However, I am not very much concerned with those points. With the principle of the Bill, I am in entire agreement. I do not wish to do or say anything which would in any way impede the Ministry in giving full effect to the Bill. I have long maintained that it is far better for us to do all that is possible with the land we have so as to bring it to a high pitch of productivity than go in for schemes of land reclamation from the sea. But I do not allow my anxiety for giving the Bill effect to blind me to its obvious defects from the point of view of the ratepayers. You are handing over to the local authority these drainage works and these banks with a certificate that they are to be maintained in their "present condition." It will be extremely hard to define that. Section 29 of the Bill completely repudiates all these undertakings and places on the local authorities responsibility for the maintenance of the works in what is described in the certificate as their "present condition." I am sure that there is a mental reservation even in the Department in that regard. I am sure there is a suspicion that, now that they have a recognised authority against whom they may proceed, plenty of people will deliberately allow certain things to occur—I shall not say maliciously. They will now have a mark for damages. This should be the best Bill for the legal profession that ever came before this House. It will lead to contentious problems all over the country. In the interest of the ratepayers, I ask the Parliamentary Secretary to accept this added sub-section (amendment read). I am afraid that the courts will have numerous opportunities of levying on the ratepayers for damages arising under the Bill. I acknowledge the Parliamentary Secretary's local interest regarding this matter. I have been informed that he has already taken action to have a report made on this question of the embankment. In replying, all I ask him to do is to state that he has no intention of creating a situation in which the local authority will be liable for consequential damages under this Bill, provided they carry out their obligations, without engaging in repair work. A statement of that kind would give us a reasonable safeguard and I am aware that the Parliamentary Secretary will get a report on the position. The Parliamentary Secretary admits that this is a special case and I concede that it is a very involved case in which any effort on the part of the House to safeguard the local authority will hardly succeed. The only chance of success I can see is by acceptance of the sub-section I have submitted. Neither the Parliamentary Secretary nor any of his advisers can foresee what action will be taken. Nobody can foretell what view the courts will take. Certain persons may have had claims up to now but there was no authority of sufficient substance whom they could make liable. Once the local authority comes into the picture, it will be a different matter. If Deputies turn to Section 29, I think they will admit that common-sense and justice demand that, for the protection of the ratepayers, a sub-section such as that which I propose should be inserted.

The purpose of Deputy Broderick's amendment is to protect the local authority, particularly against consequential damages. The Parliamentary Secretary admitted, when the Bill was in Committee, that the problem with which Deputy Broderick is so much concerned might be a very serious one for the local authority. The Parliamentary Secretary should try to meet the Deputy on this matter. A very serious financial burden might be placed on the local authority, particularly in relation to this embankment. No matter what the Parliamentary Secretary may say by way of reassurance regarding maintenance, we must have regard for the Bill. Section 23 (2) (e) states:

"No council or councils jointly shall be obliged by this sub-section to maintain any existing drainage works in a condition... better than the condition... in which such works were at the time of the last inspection by the commissioners."

That appears to be all right, but Section 29 states:

"Whenever, after the appointed day, the commissioners are of opinion that any existing drainage works which are for the time being maintainable by the council of a county or the councils of two or more counties are not being properly maintained and that maintenance or repair work is immediately necessary...."

Repair work is definitely brought in there and that might mean more than maintenance. On amendment No. 24, the Parliamentary Secretary argued that "maintenance" meant merely maintenance and that it could not be extended. He contended that the section could not put any responsibility on the local authority to maintain the works in a better condition than they were when they received them.

Now, maintenance or repair work, under Section 29, might mean very much more than just the repair of an embankment, particularly when the embankment concerned was in a very bad state of repair. According to Section 29, whenever the commissioners are of opinion that any existing drainage works which are for the time being maintainable by the council of a county are not being properly maintained, and that maintenance or repair work is immediately necessary in respect of the existing drainage works, the commissioners can enter on these drainage works and execute or complete them, as the case may be, and, if they do so, the burden is then put upon the local authority, and they can force the local authority to undertake the work. That might impose a very serious burden on a local authority in some cases, but particularly it would impose a very heavy burden on the local authority in the case of the Youghal district, in regard to which the Parliamentary Secretary, I think, has admitted that there might be very considerable consequential damages. Surely, therefore, Deputy Broderick is not asking for too much in raising this question of the financing of such schemes under a national drainage scheme, particularly in view of the fact that the whole basis of the scheme is that, after the central authority carries out the work, generally, the local authority will have to maintain the work, and that any improvement work will be a national charge.

I am afraid that, under Section 38 of the Bill, the central drainage authority will be enabled to compel the local authority to go outside that and undertake improvement and maintenance work, and to pay for it, and the local authority may not know what is its duty in that respect. I am afraid that the local authority may be put into the position that it will have no court of appeal of any sort, in the case of such things happening, although it was suggested by the Drainage Commission that such an appeal board should be set up. We have pressed on the Parliamentary Secretary that point of having an appeal board, but he is adamant on that question. In my opinion, it is absolutely essential to have some board of appeal, and surely Deputy Broderick is entitled to press that point. If the wording in Deputy Broderick's amendment is not correct, surely that is only a matter of drafting, and surely some such section should be inserted in the Bill to provide protection for a local authority in such cases. I think Deputy Broderick said that there is a probability that these local authorities may be mulcted in heavy damages as a result of this, and I suggest that, unless some such amendment as this is accepted, it will have to be embodied in legislation. At any rate, there should be some form of protection put into the Bill if the local authorities are to be safeguarded from any possibility of being mulcted in unreasonable financial losses.

I am afraid that I cannot go any further to meet Deputy Broderick than I have gone already, as I explained on the Committee Stage of the Bill. There may be, as the Deputy has quite rightly stated, certain difficulties in regard to particular areas, such as the Youghal district, but in a short space of time we will know to what extent the problem of the Youghal drainage district has in it all the dangers to which the Deputy has referred. We expect to have a report as to its present condition in a week or two, but, anyhow, in the case of the district concerned, the local authority will have to take it over just the same as all other districts, and we cannot make an exception of the Youghal district.

But that is a special or particular case, I understand.

Well, we shall know more about that when we have got a report from the people who are examining it, and I think that it will not be beyond the power of the local authority and of the drainage authority, if it should prove that this is an enormously difficult district, to contend with it. If, for instance, any of the difficulties to which Deputy Broderick has referred should arise, I am sure that the drainage authority would be reasonable enough to appreciate such difficulties as might arise, and, as I have already suggested, I do not think that these difficulties will be incapable of solution. I do not wish to be taken as resisting the principle of this amendment, but I find it impossible to set out the Youghal district as an exceptional case. We do feel that it is a district that is in a different position from many others, and we are taking steps in regard to it, of which, I am sure, the Deputy himself is aware.

I am grateful to the Parliamentary Secretary for his sympathetic consideration of this matter and for his agreement on the point that this is a special case for consideration, but I also have a duty to the responsible authority, which, in the last resort, is the ratepayers, and I fear that no matter how sympathetic the Parliamentary Secretary may be with the case I have made, if this amendment is not accepted, the result of the passing of this Bill will be endless litigation. I do not wish to go back on the case of the Youghal district, but until such disabilities as I have pointed out are removed, in regard to such county charges or county-at-large charges, I cannot see how there can be any general application of the scheme to the entire country, when you have a general scheme which is supposed to apply to the whole country and when you have also this business of a local authority being compelled to keep such works in repair and maintenance without knowing what is their duty in that regard, and having no method of appeal. You have certain safeguards provided under Section 23 of the Bill, but then you find that these safeguards are swept away under Section 29, because the latter section makes it mandatory upon the local authority to undertake maintenance and upkeep work without any regard to the question of who is to pay for it.

That is not so. They have that responsibility.

If you read Section 29, you will find that it says:—

"Whenever, after the appointed day, the commissioners are of opinion that any existing drainage works which are for the time being maintainable by the council of a county or the councils of two or more counties are not being properly maintained and that maintenance or repair work is immediately necessary in respect of the said existing drainage works, it shall be lawful for the commissioners to serve by post on such council or each of such councils a notice—in this section referred to as a notice of disrepair—stating that in the opinion of the commissioners the maintenance or repair work specified in that behalf in such notice is immediately necessary in respect of the said existing drainage works and requiring such council or councils to execute the said maintenance or repair work within a time specified in that behalf in such notice."

Failing the county council doing that, the Board of Works are entitled to go in. There is no reference to the sympathetic treatment of Section 23. That section is completely mandatory and the county council is compelled either to maintain or repair at the will of the drainage board of the Board of Works in respect of any position in which the work is handed over. That is the governing section of the Bill. It is mandatory on local authorities and, without hesitation, I say that the only safeguard is the amendment which I have suggested. If you read the section, there is no reference at all to Section 23, nor is there any reference to the sympathetic statements of the Minister or of his considering the difficulties of local authorities. I see no safeguard other than the amendment I propose.

Amendment put.
The Committee divided: Tá, 30; Níl, 59.

  • Bennett, George C.
  • Blowick, Joseph.
  • Broderick, William J.
  • Cafferky, Dominick.
  • Cogan, Patrick.
  • Coogan, Eamonn.
  • Corish, Richard.
  • Costello, John A.
  • Davin, William.
  • Dockrell, Henry M.
  • Dockrell, Maurice E.
  • Donnellan, Michael.
  • Doyle, Peadar S.
  • Giles, Patrick.
  • Halliden, Patrick J.
  • Heskin, Denis.
  • Hughes, James.
  • Keating, John.
  • Keyes, Michael.
  • McFadden, Michael Og.
  • McMenamin, Daniel.
  • Mulcahy, Richard.
  • Murphy, Timothy J.
  • Norton, William.
  • O'Driscoll, Patrick F.
  • O'Leary, John.
  • Pattison, James P.
  • Reynolds, Mary.
  • Roddy, Martin.
  • Sheldon, William A. W.

Níl

  • Aiken, Frank.
  • Allen, Denis.
  • Blaney, Neal.
  • Boland, Gerald.
  • Boland, Patrick.
  • Brady, Brian.
  • Brady, Seán.
  • Breathnach, Cormac.
  • Brennan, Martin.
  • Brennan, Thomas.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Buckley, Seán.
  • Burke, Patrick (Co. Dublin).
  • Butler, Bernard.
  • Carter, Thomas.
  • Childers, Erskine H.
  • Colbert, Michael.
  • Colley, Harry.
  • Corry, Martin J.
  • Daly, Francis J.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Fogarty, Patrick J.
  • Furlong, Walter.
  • Harris, Thomas.
  • Hilliard, Michael.
  • Humphreys, Francis.
  • Kilroy, James.
  • Kissane, Eamon.
  • Lemass, Seán F.
  • Little, Patrick J.
  • Loughman, Frank.
  • Lynch, James B.
  • McCann, John.
  • McCarthy, Seán.
  • MacEntee, Seán.
  • Moran, Michael.
  • Morrissey, Michael.
  • Moylan, Seán.
  • O Briain, Donnchadh.
  • O Ceallaigh, Seán T.
  • O Cléirigh, Mícheál.
  • O'Connor, John S.
  • O'Grady, Seán.
  • O'Loghlen, Peter J.
  • O'Reilly, Matthew.
  • O'Rourke, Daniel.
  • Rice, Bridget M.
  • Ryan, James.
  • Ryan, Mary B.
  • Sheridan, Michael.
  • Skinner, Leo B.
  • Spring, Daniel.
  • Traynor, Oscar.
  • Walsh, Richard.
  • Ward, Conn.
Tellers:—Tá: Deputies Doyle and Bennett; Níl: Deputies Kissane and O Briain.
Amendment declared negatived.
Progress reported; Committee to sit again to-day.